R v Dib - [2002] NSWSC 934

No judgment structure available for this case.

Reported Decision:
(2002) 134 A Crim R 329

New South Wales

Supreme Court

CITATION: R v DIB [2002] NSWSC 934 revised - 11/10/2002

FILE NUMBER(S): SC 70104/01

HEARING DATE(S): 16-30 September 2002

JUDGMENT DATE: 9 October 2002

PARTIES :

Regina
Moustapha Dib

JUDGMENT OF: Hulme J at 1

COUNSEL : Mr P Conlon SC (Crown)
Mr W Terracini SC (Accused)
Mr P Newton (Accused)

SOLICITORS: SE O'Connor (Crown)
TA Murphy (Accused)

CATCHWORDS: Criminal Law - abuse of process - plea of guilty to manslaughter

DECISION: Plea of guilty to manslaughter not accepted

- 36 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HULME J

9 October 2002

REGINA v MOUSTAPHA DIB

JUDGMENT
on whether the Accused’s Plea should be accepted.

1 HULMEJ: On Monday 16 September 2002 the above-named Accused was indicted on a charge that he did murder Edward Lee. A jury was empanelled and the trial proceeded until Friday 28 September. At the commencement of that day the Crown Prosecutor informed me that there had been discussion between counsel and asked me to adjourn the proceedings so that he could place a report before the Director of Public Prosecutions concerning the possible acceptance of a plea in the matter. Neither counsel wished to continue with either of 2 part-heard witnesses meanwhile.

2 I acquiesced in this request and stood the matter over until Monday 30 September. Before doing so however, I indicated that I saw some difficulty in sentencing the Accused for manslaughter and made reference to Maxwell v R (1995-96) 184 CLR 501. In his opening the Crown had informed the jury that there would be no issue that Edward Lee was murdered but the Accused had served a Notice of Alibi and that the case would be about proving that it was the Accused who had done the stabbing which resulted in Edward Lee’s death. Remarks of Mr Terracini SC who appeared for the Accused, made in the absence of the jury, confirmed that “who did it?” was the pivotal issue. The Crown Prosecutor responded to my remark about difficulty by indicating that provocation would be involved.

3 On Monday 30 September, I was informed that the Director of Public Prosecutions had indicated that if the Accused were re-indicted the Crown would accept a plea to manslaughter on the basis of a loss of self-control. I responded to the effect that I was not conscious of any evidence of provocation. The balance of the morning was spent in the Crown and to a much lesser extent Mr Newton, junior counsel for the Accused trying to persuade me that there was such evidence and that I should accept the plea.

4 At 2 pm I was informed by the Crown Prosecutor and Mr Newton that the jury would have to be discharged. The reason advanced by Mr Newton was that “myself and Mr Terracini (who did not appear that day) now have written instructions that would not allow us to further appear in the matter before the jury. In that event the only consequence would be that the Accused would be representing himself and that is not a situation that your Honour could countenance at this stage.” After some further discussion in which I indicated that I was unable to see why counsel could not continue, Mr Newton said that if the trial proceeded he and his leader would be withdrawing and, in effect, that that was that. After some further urging from the Crown I did discharge the jury.

5 Neither I nor counsel adverted to s91 of the Criminal Procedure Act although, given the difficulty counsels’ withdrawal must have occasioned the Accused if the trial had continued, it may be that attention to s91 would have made no difference.

6 After some further discussion on the question of whether any plea should be accepted, the Accused was again indicted on the charge that he did murder Edward Lee. He pleaded not guilty to murder but guilty to manslaughter and the Crown Prosecutor said that the Crown would accept that plea in full satisfaction of the indictment. I again indicated that I was not prepared at that stage to accept the plea, reserved my decision on that question and stood the matter over until Wednesday 9 October. It was agreed that there would be submitted a statement recording any facts additional to the evidence I had heard which I would be asked to take into account. On 1 October I received from the Office of the Director of Public Prosecutions a Statement of Agreed Facts. On 3 October there was faxed by counsel who appeared for the Accused a document entitled “FACTS TO BE ASSERTED BY ACCUSED ON PLEA OF GUILTY TO MANSLAUGHTER”. I was informed and accept that “The Crown Prosecutor … had indicated that that Crown does not dispute the contents of the document”.

7 The question of a judge’s powers in respect of the acceptance of a plea were the subject of detailed consideration by the High Court in Maxwell v R (1995-1996) 184 CLR 501. At some stage it will be necessary for me to refer to that case in more detail but it is sufficient for the moment to say that the decision made plain that while a judge is entitled to reject a plea, this can occur in only a limited range of circumstances.

8 The evidence in the case showed that Edward Lee, Tony Kim, Michael Rhee, Daniel Son and his brother Peter had driven to Telopea Street, Punchbowl with a view to going to a 15th birthday party of Amanda Tweeddale who lived at number 5A Telopea Street. At the time, Tony was 15½, Michael was 15, Daniel was 15½ and Peter was 17. According to the pathologist who carried out the post mortem, Edward’s appearance was consistent with a stated age of 14 years. All boys were of Asian extraction. Peter Son, who had driven, parked outside number 11 and the five boys, thinking the party might be at a house with a light on on the other side of the road, crossed it and began to walk across and along the footpath. Edward, Tony and Michael were together in front and Peter and Daniel Son behind by a distance estimated by two of them as about 10 metres. Edward, Tony and Michael passed a group of about 6 boys or youths – the estimates vary between 5 and 8 – some or most of whom seem to have been of Lebanese extraction. Some at least were on the footpath. Some may have been on the road. Soon after the three Asians had passed, one of the other group said something to the effect “What are you staring at?” Peter Son made some reply. One of what I shall call the Lebanese group then went very close to, and pushed, Peter Son. The latter, who agreed that he was angry or not in a good mood at the time, retaliated by swinging a punch felling that person. That person may well have been knocked unconscious. He seems to have been on the ground for an appreciable period.

9 A brawl then broke out. As might be expected, recollections of what occurred are imperfect and not all consistent in details. Furthermore, although a substantial number of persons gathered once the fight started, in very large part the evidence as to what occurred came from the 4 surviving Asian boys. From one or more of them there was evidence that the fight went all over the place and it seems clear that before the end Peter Son was on the footpath opposite to that where the fight started fighting against a number of opponents. However, the evidence does not suggest that, putting aside what happened to Edward, the brawl was of serious proportions.

10 Tony Kim said that he did not become involved in the fight although he did some pushing to try to break it up. He struck no blows and was not struck himself. There was no contrary evidence.

11 Michael Rhee said that he was not involved in the fight except breaking it up “when Edward was getting involved with it”. Elsewhere he said that he did not remember Edward fight and did not go to assist. There was no evidence to suggest that Mr Rhee’s involvement was greater than he said.

12 Daniel Son was involved in the fight, being struck himself and striking some of the persons in the opposite group. At the beginning, according to himself and Tony Kim, Daniel had tried to calm things down but when others started to hit Peter, he helped him out, punching some boys and getting them off Peter.

13 Daniel Son said that when the person fell down in response to Peter’s punch was “when the fight erupted, everybody just came on to my brother. Tony Kim gave similar evidence. Peter said that he was punched but gave no positive evidence of suffering any other blows. A neighbour, Mr Truong gave evidence of seeing some one being punched and kicked and it may be that this was Peter Son.

14 So far as Edward was concerned, there was Michael Rhee’s evidence that Edward was getting involved in it, that Edward went up to hit someone in the course of the fight, and that he saw Edward hit someone. There was no other evidence of aggression by Edward.

15 Peter Son thought he saw Edward kneeling down surrounded by 2 persons but he did not see anyone attack Edward. Tony Kim said that he did not see Edward get kicked, stomped on or head-butted or repeatedly punched and Michael Rhee gave similar evidence. Daniel Son said that he saw someone jump on Edward’s back and Edward being kicked.

16 Edward, Michael, Tony and Daniel were allowed to run off to the car in which they had arrived and although there is evidence that Daniel was pursued for a time, there is no suggestion the pursuers approached anywhere near the vehicle. When Daniel realised his brother was not at the vehicle, Daniel returned to where his brother was still fighting on the footpath opposite to where the fight had started and the 2 then managed to run to the car. To give some idea of the distance involved, a photograph Exhibit C shows number 11 Telopea St to be directly opposite number 14. The evidence placed the commencement of the fight outside number 8 and the stabbing outside number 10. The allotments at number 8,10 and 12 seem from the photograph to be reasonably narrow, something under 3 car lengths wide. The Accused lived at number 3 Telopea Street.

17 There was also evidence that a woman was present at the time of the fight. Mr Peter Son said that he heard a lady scream. Mr Kim said that he saw one or more with a cloth over their head telling persons to stop. Mr Rhee said that he saw a female come and say “my son, my son”. Daniel Son gave similar evidence. Another witness, a Mr Croft, heard a lady scream.

18 A pathologist who conducted a post-mortem examination of Edward Lee said that he observed 2 stab wounds in Mr Lee. One was about 140 mm deep. It went through the front of the right side of the chest, penetrated the right lung and the right atrium of the heart and would have caused death in a very short time. The second was about 110 mm deep, through the back of the right side of the chest and it would have been lethal only if left unattended for sufficiently long. The wounds were consistent with a single blade knife, the blade having the length of at least 140mm and a width of between 20 and 30mm.

19 The evidence of the Asian boys as to the stabbing of the Accused was as follows. Mr Peter Son said that he did not see it occur. Mr Kim said that he saw a person standing in the middle of the street holding a knife. A little later he saw the person with the knife grab Edward’s shoulder, trip him and stab him. Over “short seconds” he saw hand movements in and out but the witness could not see how many. He said he did not see anybody stab Edward when the latter was standing up.

20 Mr Rhee said that after the fight started he heard someone on the street say “I’m going to fucking kill one of these cunts today”. He looked in that direction and saw a boy running down the street in the direction of number 1 Telopea Street. He then stopped looking at that person. A little later he saw a boy from behind grab Edward with his left arm around Edward’s shoulder and Edward was stabbed from behind although he thought Edward was being punched, seeing a fist moving forwards and backwards a couple of times. Mr Rhee identified the person by a T-shirt with an Addidas emblem and said that the person who had called out was the same person as stabbed Edward.

21 Mr Daniel Son gave evidence of having heard someone say “where’s the fucking knife, I’m going to kill one of those cunts” but could not recall if it was before the fight started or after it. After the fight had been going for a time Mr Son did not specify, he started running away. He turned around in the course of doing so and saw about 10 to 15 metres away someone jumping on Edward’s back. Asked to describe what he saw, Mr Son said “someone grabbed him over the shoulder, one hand over the shoulder and his right hand looked like a punching motion but it didn’t look like a punching motion at the time it looked like a stabbing motion as well. He fell to the ground”. In cross examination Mr Son said he did actually see Edward get stabbed. He agreed he had also told the police that the person who had said “where’s the knife, I’m going to stab him” ran to a motor vehicle that was stopped in the middle of the road. However Mr Son said he did not see that person get into the car or get anything from it. He said the person who had stabbed Edward was part of the group where the fight initially started. He thought that person also kicked Edward a bit.

22 I should add that, subject to one matter, none of the 4 boys could identify the Accused. The reservation is that one of the witnesses helped in the compilation of an “Identikit” portrait of the person said to be the offender and which became an exhibit. A number of these witnesses gave partial descriptions of the offender in terms which do not accord with the Accused. There is a deal of evidence that at the time of the fight the street was quite dark.

23 The only other evidence of any present significance as to what occurred in the fight came from a witness using the name Matthew Power. He said that prior to the fight he had been with the Accused and a third person sitting around the verandah of 3 Telopea Street. There was an argument and some yelling up the street. The three ran to the source of it and saw a bunch of people arguing and fighting. He then recalls the accused running back to the house they had come from returning with a knife and running in and stabbing the kid in the chest. After that he said they all, by which I understood him to mean the three, ran back to No. 3 Telopea Street. When they arrived there the accused said that he had just clicked and “fucken Asian deserved it.”

24 In addition to the foregoing the Crown called 2 other witnesses whose evidence or statements, if accepted, justified the conclusion that it was the Accused who stabbed Mr Lee. There was evidence from a Mr Banat that at about 7 or 7.30 pm he was at a Mr Bashar Ibrahim’s place in Gosling Street Greenacre. This is a short distance from Telopea Street. He said that while there he saw no-on else but acknowledged that in a statement of 13 July 2000 he had said that when he got out of his car, the Accused and 2 others were also there. According to the statement the group was arguing, Bashir yelling to the Accused “Fuck you, fuck the street, you fucked everything”. Bashir looked towards the Accused and said “This little cunt went and stabbed me (sic)”. The Accused had blood on one of his hands and on the lower arm of his jumper between his elbow and wrist and looked shocked and was shaking.

25 Mr Banat said that he had made the statement the police wanted in return for immunity from charges he was facing and it was untrue.

26 There was evidence from a Mr Rossinski of being present later that night at meetings wherein the Accused’s brother Mohamed introduced the Accused, explained that the Accused had seen his little brother being bashed, run back inside the house, got a big kitchen knife, come back out and started stabbing. The Accused said he did not know how many times. He “just clicked”. It was common ground that Messrs Power, Banat and Rossinski had been involved in substantial criminality in the past. All had or may have had incentives to implicate the Accused, irrespective of where the truth lay. Neither Mr Banat or Rossinski had been cross-examined at the time of the events which have led to these Reasons. Had the trial proceeded to verdict, their credibility would have been a major issue.

27 Evidence bearing indirectly on the Accused’s involvement was contained in a statement made to police on the night of the stabbing by a Miss Tweeddale who lived in No 5 Telopea Street. It was her 15th birthday party that Mr Lee and his friends had been going to. When first called Miss Tweeddale purported to have little memory for events but after having been charged with contempt her memory appeared to improve. Passages in that statement, if accepted, justify the conclusion that the Accused was in Telopea St shortly before and after the stabbing. As the Notice of Alibi had not yet been tendered at the time of the events which have inspired these Reasons, it is not possible yet to know if Miss Tweeddale’s statement is inconsistent with it. However it may be that the statement contrasted with the Notice of Alibi would have afforded evidence of lies indicating a consciousness of guilt.

28 It was against that background that the topic of the Accused pleading guilty to manslaughter was raised.

29 There is also, as I have said, an agreed statement of facts submitted under cover of a letter of 1 October. To a large extent the document repeats matters to which I have referred above but it does include, and to some extent add, the following:-

“Peter Son was pushed in the chest. The person who did the pushing and who Peter Son punched was Ahmed Dib, an 18 year old brother of the Accused. The blow by Peter Son to Ahmed Dib caused him to fall to the ground unconscious. The group then attacked Peter Son. Daniel Son attempted to go to his brother’s aid and he also received punches to his face and body. It seems Edward Lee was also involved (see T139 where Michael Rhee stated “yes I saw Edward hit someone… when the fight started.”) At the commencement of the verbal altercation it appears that the accused was in the vicinity of his own home No. 3 Telopea Street. He then moved towards the other side of the road where the confrontation was taking place. Upon seeing his brother struck and fall to the ground motionless, the accused having lost his self control, moved a short distance to the front of his house, armed himself with a knife and returned to the other side of the road where the fight between the groups was still in progress. He came upon Edward Lee and stabbed him in the back and in the chest, causing him to fall to the ground.”

30 The terms of the further document forwarded by Mr Newton were:-

”The following facts will be asserted by the accused in relation to his guilty plea to manslaughter:

31 It was not, and in my view could not be, suggested that anything Mr Lee himself did could amount to provocation. Neither was it, nor could it be, suggested that Mr Lee was engaged in any relevant common enterprise with Peter Son or others of the group of Asian boys such that their actions could be imputed to him under principles of agency, joint enterprise or common purpose. The common enterprise on which the boys were engaged of going to the party was so far removed from Mr Peter Son’s punch of the Accused’s brother that one could not impute to Mr Lee, Mr Peter Son’s action.

32 The way and only way in which it was suggested that provocation might exist was that the evidence justified the conclusion that that Accused might have seen his brother on the ground unconscious, seen or believed him to have been struck by the deceased or alternatively struck by one or more of the group of Asian boys and believed that the deceased was one of a party who had attacked his brother. It was submitted by the Crown Prosecutor and in substance by counsel for the Accused that the Accused’s belief was pivotal to the issue. The submissions were so formulated prior to the submission of the Agreed Statement of Facts which take the Accused’s observations of “seeing his brother struck” somewhat further than does the evidence. I shall return to this topic below.

33 It was submitted by the Crown Prosecutor, who took up the running on the issue, that the relevant law on provocation was reflected in directions to a jury given by Brooking J in R v Kenney (1983) 2 VR 470 to the following effect:-

“The relevant acts as regards each victim are those which you think it was possible,

(a) Were done by the victim himself; or

(a) Were mistakenly believed by the Accused to have been done by the victim himself, or

(b) Were done by someone else but with the help or the encouragement of the victim or as part of a concerted action by the victim and someone else, or

34 In New South Wales the relevant statutory provision is s23 of the Crimes Act, 1900. So far as is presently material, the section provides:-

(1) Where, on the trial of a person for murder, it appears that the act or omission causing death was an act done or omitted under provocation and, but for this subsection and the provocation, the jury would have found the accused guilty of murder, the jury shall acquit the accused of murder and find the accused guilty of manslaughter.

(2) For the purposes of subsection (1), an act or omission causing death is an act done or omitted under provocation where:

(a) the act or omission is the result of a loss of self-control on the part of the accused that was induced by any conduct of the deceased (including grossly insulting words or gestures) towards or affecting the accused; and

(b) that conduct of the deceased was such as could have induced an ordinary person in the position of the accused to have so far lost self-control as to have formed an intent to kill, or to inflict grievous bodily harm upon the deceased,

35 There is, in my view, much to be said for the view that the terms of this section answer with unambiguous clarity any suggestion that acts which either did not occur, or did not occur by or with the complicity of the deceased, but which were, as the second and fourth of the directions of Brooking J envisage “mistakenly believed by the Accused to have been done by the victim” are “conduct of the deceased”. As a matter or simple ordinary English, they are not. The author of Howard’s Criminal Law, 5th edition at p97 seems to agree.

36 That was the view of Kearney J in Jabarula v Poore (1989) 42 A Crim R 479 at 485 in relation to the words “person …who gave (the Accused) that provocation” in the Northern Territory Criminal Code.

37 Nor do erroneous beliefs of an Accused accord with the nature of events which led to the doctrine of provocation, mitigating the consequences of a provoked attack, evolving. Thus in R v Quartly (1986) 11 NSWLR 332 Lee J, with the concurrence of the other members of the Court, said:-

“The view … that provocation requires a reaction by an accused to conduct of the deceased which occurs in his sight and hearing appears to have been accepted in the common law from the very earliest times.”

38 In R v Croft (1981) 1 NSWLR 126 at 140, O’Brien CJ at CL refers to the need for a provocative incident. The passage was cited with apparent approval in the New South Wales Court of Criminal Appeal in Peisley (1990) 54 A Crim R 42 at 49-50.

39 In R v Arden (1975) VR 449 Menhenitt J, after referring to a number of cases extending back to 1837, said:-

“In light of all those authorities I have concluded that for there to be sufficient to constitute provocation, conduct of some kind, whether it be physical conduct or words, on the part of the person killed must take place in the presence of the accused person. The rationale of this rule appears to me to be as follows. If a person actually sees conduct taking place in respect of a third person and he is provoked thereby, it is understandable that he may be provoked to the extent of taking the other person’s life and in circumstances which would reduce murder to manslaughter. Where, however, all that happened is that the accused is told something by a third person there enters immediately the element of belief, and there is nothing tangible upon which the accused can be said to have acted.”

40 The need for a provocative incident and the requirement that conduct of the deceased occur in the sight and hearing of the Accused hardly leave room for mistake. And if information actually received is not sufficient to amount to conduct constituting provocation, then a fortiori a mistaken belief cannot.

41 Nevertheless, it may be accepted that there is a general principle that an honest and reasonable belief in a state of affairs which, if it had existed, would make an Accused’s act innocent constitutes a defence to a criminal charge and one which, if there is evidence raising the issue, the Crown must negative pursuant to its obligation to prove a charge beyond reasonable doubt – Jiminez v R (1992) 173 CLR 572 at 582 and the cases cited. The requirement that any mistaken belief be held on reasonable grounds applies in the area of self defence – Zecevic v DPP (1987) 162 CLR 645 at 661-2.

42 However, as the decision of R v Ianazzone (1983) 1 VR 649 at 655 and the cases referred to in it make clear, “the honest and reasonable belief doctrine requires belief in a state of facts which, if they existed, would made the defendant’s act innocent” and a “belief does not excuse if its truth would have meant, not that no offence was being committed, but that some other and different offence was being committed”. Here any mistake as to the deceased’s conduct could only assist an accused in obtaining a conviction for manslaughter rather than murder. On this ground alone, I would regard the issue of any mistake by the Accused as one which does not arise.

43 Apart from mention of it by Brooking J in R v Kenney, none of the cases that suggest that mistake may be relevant in the area of provocation addresses this topic.

44 How then did it come about that Brooking J directed the jury as he did? Although his Honour had grave reservations as to the correctness of the propositions advanced by the Crown here, he directed the jury in accordance with them because he felt, as a trial judge, he should follow some obiter dicta in a decision of the New South Wales Court of Criminal Appeal in R v Croft (1981) 1 NSWLR 126 at 149-150. His Honour was perhaps influenced also by a decision of the Supreme Court of Canada in R v Manchuk (1937) 3 DLR 343; (1937) 4 DLR 737. My consideration to those authorities, perhaps with more time than Brooking had available in the midst of a trial, finds them unpersuasive.

45 What was said in R v Croft at p149-150 was this:-

“The cases of R v Thomas (1837) 7 Car&P 817; 173 ER 356, R v Letenock (1917) 12 Cr App Rep 221 and R v McCarthy (1954) 2 QB 105 are relied upon in Halsbury, 4th ed vol 11, par 1164, at p620, for this proposition:

‘the jury must consider the effect of the provocation on a reasonable man, not a drunken man, loss of self-control arising from the taking of drink or drugs not being in itself an excuse for crime. Where, however, a person, owing to the taking of drink or drugs, makes a mistake of fact, he is entitled, for the purposes of the defence of provocation, to be treated as though the supposed fact was true; hence, if owing to his drunkenness he believed that another was about to make an attack upon him, the jury ought to take that into consideration in determining the issue of provocation.’

Thus a drunken man can have the advantage of an honest (and query reasonable though drunken) mistake which he would not have made if he were sober, but he can only avail himself of it when not only he himself had in fact been provoked by the state of fact which he himself believed to exist but an ordinary sober man, making the same mistake, would also have been provoked to act in the same way. In Archbold 4th ed, at par 2480, at pp1242, 1243, 1244, this is not found to be attractive, but the reason given is that it seems to be inconsistent with the reasoning in Director of Public Prosecution v Majewski (1977) AC 443, which is not applicable in Australia: R v O’Connor (1980) 54 AJR 349.”

46 A number of comments may be made about this passage. Firstly, if in the second sentence of the passage quoted from Halsbury the author was directing attention to the issue of how an ordinary or reasonable man might react, the authorities cited do not support the proposition. Those authorities were in fact R v Letenock to which the Court of Criminal Appeal did refer and R v Wardrope (1960) Crim LR 770. In the first of these, the accused, a member of the armed forces had gone to his hut drunk, shouting and singing. The deceased, a corporal told him to be quiet. There seems to have been evidence from the defence that “… an altercation took place between him and the deceased man, in the course of which the latter adopted so violent and provocative an attitude towards the applicant that, in view of his drunken condition, which impaired his judgment, and of the treatment he had received from the sergeant earlier in the day, he misapprehended the intention of the corporal, and anticipated some attack.” It seems to have been submitted that the wounds which he inflicted upon the corporal were really the result of a bona fide misapprehension of what the corporal was about to do…”

47 The report goes on to say that “in directing the jury on this part of the case, Rowlatt J said that unless the applicant was so drunk at the time of the commission of the offence as to be absolutely incapable of knowing anything of what he was doing, his drunkenness could afford no answer to the prosecution.” It was submitted for the Appellant that “where there is evidence of provocation the drunkenness of the accused can be taken into account in considering what effect the provocation had on his mind” and that when he dealt with the evidence the trial judge did not put before the jury the applicant’s own evidence in support of his account of provocation.”

48 It was held that “if … there was any evidence that the deceased man approached the applicant in a rough manner, from which the applicant might infer that he was about to deal him a blow, it should have been brought to the attention of the jury in the summing up. … The court has come to the conclusion that there is some ground for the contention that the question should have been left for the jury, whether they believe the applicant’s statement that the deceased corporal approached him in a rough and threatening manner which indicated some intention on his part of being violent towards him, as distinguished from using violent language. Therefore, without going further, the Court considers that it would be justified in cancelling the verdict of murder and substituting for it one of manslaughter. … The only element of doubt in the case is whether or not there was anything which might have caused the applicant, in his drunken condition, to believe that he was going to be struck”.

49 The report of R v Wardrope is very short. So far as presently relevant all it says is that Edmund Davies J directed the jury:-

“1. Provocation must be such as to deprive a reasonable man, not a drunken man or a violent tempered man, of self control and must in fact deprive the accused of self control. The measures taken by the provoked person must be bear (sic) reasonable relationship to the provocation.

2. Self defence. The steps taken by the defendant must be commensurate with and bear reasonable relationship with the violence threatened or apprehended.

3. Drunkenness. A person whose mind was so impaired by drink as to imagine himself attacked was entitled to take such steps in defending himself as when necessary to meet the imagined attack as if it were real or not exaggerated, subject to the direction on self defence above.

4. In respect of each of the above defences, the burden was on the prosecution to prove their case, to eliminate provocation or self defence and to show that the defendant was not so affected by drink as to be incapable of forming the necessary intent.”

50 Secondly, the passage quoted from Halsbury does not indicate in what way the jury ought to take the mistake of fact into account in determining the issue of provocation.

51 Thirdly, it is not apparent why mistakes due to drink or drugs are singled out. Surely, if mistake by the accused as to actions of the person provoking is a relevant factor that should be so however the mistake occurred.

52 Fourthly, as remarks of Brooking J make clear, both the passage quoted and the Court of Criminal Appeal’s remarks introduce a great deal of complexity into what should be a fairly simple factual issue – what did the deceased do? His Honour said (at p 472):-

“How a mistake is to operate in relation to the test of the ordinary man is by no means clear, and that difficulty is compounded where, as so often happens, there is a suggestion that the accused was intoxicated. Intoxication is relevant in relation to the actual loss of control but not in relation to the ordinary man: R v Croft; R v O’Neill [1982] VR 150. What is the effect of mistake to be in relation to the ordinary man where drink plays some part in the mistaken belief, or indeed in any case? Croft suggests that one is to ask whether an ordinary sober man making the same mistake as the intoxicated accused might also have been provoked to the necessary extent. The jury may find that difficult. What of a drunken hallucination, at all events if there is no requirement that the belief be reasonable? Compare R v Hoffman (unreported, Full Court, 19 December 1978), where brief mention is made of drunken mistake and hallucinations in relation to self defence. Does one ask whether the sober ordinary man having that hallucination might have been provoked? If there is a qualification that the belief be reasonable, what does this qualification mean? Is it enough that there be some foundation for the belief? Compare the test in Viro in relation to apprehension of an attack for the purposes of self defence.

Those who suggest that mistake will avail are really challenging the supposed fundamental rule that provocation must emanate from the victim by suggesting that it is qualified: see, for example, what is said in R v Manchuk (1937) 3 DLR 343 at p 347, and in Brett & Waller, Criminal Law, 4th ed. pp 179-180.”

53 Authority for that “supposed fundamental rule” is to be found in, inter alia, R v Simpson (1915) 11 Crim App Rep 218; R v Duffy (1949) 1 All E R 932 and R v Davies (1975) 60 Crim App Rep 253.

54 Fifthly, in the Court of Criminal Appeal’s apparent embracement of the passage from Halsbury, no consideration was given to the apparent departure from the words in s23, “conduct of the deceased” – a departure necessarily implicit in the concept of the accused’s belief as to that conduct. Nor was reference made to what is now the accepted requirement in Australian law that a mistake must be reasonable or to the limitations to the doctrine of mistake referred to in R v Ianazzone. In these circumstances, it is impossible to regard any such embracement as authoritative.

55 Nor do I find the decision in R v Manchuk (1937) 3 DLR 343; (1937) 4 DLR 737 persuasive. The decision was made in the context of Section 261 of the relevant criminal code, which contained no requirement that the provocation be by the deceased. Section 261 is set out at (1937) 4 DLR 737 –

“Culpable homicide, which would otherwise be murder, may be reduced to manslaughter if the person who causes death does so in the heat of passion caused by sudden provocation.”

56 The majority of the Ontario Court of Appeal said that the matter was to be looked at not from the point of view of the victim but from the point of the view of the prisoner subjectively. The Supreme Court of Canada obviously thought this too wide for they said that the section would not apply where the person killed was not thought by the offender to be responsible for the provocation but held that “as regards the source from which the provocation proceeds, that acts of provocation committed by a third person, which might be sufficient to reduce the offence to manslaughter if the victim had in fact participated in them, may have the same effect where the offence against the victim is committed by the accused under the belief that the victim was a party to those acts, although not implicated in them in fact.” The different treatment of the 2 situations as a matter of law does not seem justified by the terms of the statutory provision.

57 The court was clearly to have been influenced by R v Brown (1776) Leitch 148; 1 East’s Pleas of the Crown 246 and possibly by Hall (1928) 21 Cr App R 48 at 54 which the Court said “may have been decided upon similar considerations”.

58 For my part the report in Hall is too cryptic on which to base any conclusions. The Appellant’s case was that he had been attacked by a group of persons earlier and it is not apparent from the report whether that group included the victim of his offence. The court was concerned whether a defence of provocation should have been left to the jury and it had not been.

59 Although Henderson JA in the Ontario Court of Appeal – at p356, 358 - thought R v Brown was not in point as a case where there was an accidental slaying, it does seem to me to provide support for the view that a mistaken view by an Accused that his victim was the author of provocation is to be taken into account. In that case the accused seems to have been involved in a violent affray although behaving with restraint. He was assaulted again several times by a mob of keelmen who ran off. The deceased who the report said “might be mistaken for a keel man was going along about 5 yards from the soldier; but before he past, the soldier went to him and struck him on the head with his sword. The deceased… (a little later) expired… the solider said that he had been badly used; and it was the opinion of two witnesses, that “if he had not drawn his sword, they would both of them have been murdered.”

60 The decision of the Court as recorded in Leach was “The Judges were clearly of the opinion, That it was only manslaughter”. The headnote reads, “If, on a sudden quarrel between two parties of keel-men and soldiers, the blow intended for an individual of the one party would, if death ensues, have amounted only to manslaughter, it will be only manslaughter, though by accident it kill another”.

61 The decision of the court as more fully recorded in East P C was:-

“This was holden manslaughter: it was not murder as the jury had found, because there was a previous provocation, and the blood was heated in the contest: nor was it in self defence because there was no inevitable necessity to execute the killing in that manner.”

62 It may not be inappropriate to remember that Brown was decided at a time when the law relating to self defence and provocation seem to have been intertwined – Russell on Crime, 12th edition, volume 1, p 517-8.

63 Brown and Letinock to which I have referred are relied upon by Glanville Williams (1954) Criminal Law Review 740 at p752 as supporting the proposition that “there seems to be no doubt that a mistaken belief in provocation is equivalent to actual provocation.” However the author continued by submitting:-

“..there is no “objective” test in respect of the mistake; in other words, the mistake need not be reasonable. As a general principle in criminal matters, a mistake entitles the accused to be treated on the basis that the facts he supposed existed, whether the mistake be reasonable or not.”

64 As the cases cited in Jiminez v R (1992) 173 CLR 572 at 582 show, the general principle relied on is contrary to Australian law.

65 It is unnecessary that I refer to a group of other cases including R v Gross (1913) 23 Cox C.C. 455 and R v Porritt (1961) 1 WLR 1372 where actions of the Accused directed at someone who had been guilty of provocation have resulted in the death of innocent parties. These cases seem to me to say nothing on the question of whether “conduct of the deceased” in s23 should be regarded as encompassing mistaken beliefs of the person said to have been provoked.

66 In R v Porter (unreported, Badger-Parker J, 5 July 1990) his Honour expressed the view that “those directions (of Brooking J) given in respect of the common law requirement that provocative conduct be conduct of the deceased are, in my view, appropriate in respect of the New South Wales Acts statutory requirement that provocation be conduct of the deceased …”. In Tumanako (1992) 64 A Crim R 149 at 155 Badgery-Parker J, with the agreement of Clarke JA, citing in support R v Kenney and R v Porter, said:-

“… the provocative conduct which may sustain a defence of provocation need not necessarily be conduct of the deceased personally if it is conduct in the presence of the deceased by a person so closely associated with the deceased that it is reasonable for the jury to attribute the conduct of that person to the deceased.”

67 In R v Hall [2001] NSWCCA 202 at [48], the Court was content to accept that statement “for present purposes”.

68 I have no difficulty in accepting the proposition that within s23 “conduct of the deceased” may include, certainly in circumstances where he is present, conduct for which, in accordance with normal principles of agency, joint enterprise or common purpose, the deceased is responsible. The impact on the person provoked may be just as great and there is nothing in the terms of s23 to exclude the normal rule that what a person may do personally, he may do by an agent. Actions so done may properly be regarded as “conduct of the deceased”. (It is unnecessary for present purposes to consider whether the formulation in the passage just cited is as precise an expression of this principle as it perhaps might be.)

69 Badgery-Parker J’s remarks in R v Porter were clearly made in the course of a trial and while the Reasons of his Honour from which the passage I have quoted is taken, reveal some consideration of earlier authority in respect of other topics, R v Kenney is the only authority referred to in support of his Honour’s conclusion in this regard. And there is nothing in Tumanako to indicate any consideration of the correctness of the second and fourth of the propositions I have quoted from R v Kenney. They were clearly the subject of disapproval by Zelling J in R v Fricker (1986) 42 SASR 436 at 448.

70 There are some other decisions to which reference should be made. In R v Lukins (1902) WN (NSW) 90, Owen and Cohen JJ were of the opinion that, for the purposes of provocation, an accused labouring under a partial delusion must be considered in the same situation as to responsibility, as if the facts, in respect of which the delusion existed were real. Owen J, at least seems to have relied on the answer to the fourth question in R v McNaghten 10 Cl & F 200, viz. “If a person under an insane delusion as to existing facts, commits an offence in consequence thereof, is he thereby excused?” That answer was:-

“(making the assumption that a person labours under an insane delusion as to existing facts only) and is not in other respects insane, we think he must be considered in the same situation as to responsibility as if the facts with respect to which the delusion exists were real. For example, if under the influence of his delusion, he supposes another man to be in the act of attempting to take away his life, and he kills that man, as he supposes, in self defence, he would be exempt from punishment.”

71 At least in the case of a sane offender, I see difficulty in reconciling that answer with the remarks of Wilson, Dawson and Toohey JJ in Zecevic v R at p661-2.

72 In at least partial reliance on R v Lukins, in R v Voukelatos (1990) VR 1, Young CJ at p 3 was of the view, obiter, that a delusional belief in a state of facts was capable of amounting to provocation. Murphy J, at p19 seems to take the same view although his Honour refers to the problems that exist when mistake is allowed to intrude. Hampel J, at p25, refers to an earlier decision of his own where he had taken the same view as that embodied in Brooking J’s directions in R v Kenney where there had been a mistake as to the identity of the provoker.

73 In Abebe (2000) 114 A Crim R 398 at 415 Charles JA, with whom on this point Coldrey AJA agreed, said that there was much to be said for the view that provocation mistakenly believed to have come from the victim should be available for consideration by the jury, provided however, that the mistaken belief is reasonably held. His Honour remarked that such an approach would be consistent with what was said by Wilson, Dawson and Toohey JJ in Zecevic v DPP but, because the Crown had been content not to challenge that view at the trial and the matter had not been fully argued on appeal, his Honour went no further.

74 In none of the cases in which it has been held that a mistaken belief on the part of an Accused as to the content of the provocative conduct or as to the author of it was relevant has there been any significant consideration as to why, if mistake is to be a relevant factor, it should not be attended with the same limitations as generally in the criminal law. In the emotion charged circumstances where death occurs as a result of provocation, by definition, the provocation occurs before an Accused’s loss of control. The Accused is presumably just as able as others to see whence the provocation has come and what it was and while the doctrine of provocation may excuse in some degree his reaction, there is not obviously any reason why he or she should be in any more favoured position than others who have the benefit of the doctrine of reasonable and honest mistake. And insofar as it may be said that the element of lack of self-control is not present in other situations, one might point out that in circumstances of self defence, Zecevic v R makes it clear that the requirement of reasonableness is still insisted upon.

75 Furthermore, it must not be forgotten that insofar as the “conduct of the deceased” may include any mistaken view by the Accused of it, it is that conduct which has to be assessed for the purposes of s23(2)(b)in accordance with what was said by the High Court in R v Stingel (1990) 171 CLR 312 and Masciantonio v R (1994-1995) CLR 183 CLR 58. The fact that the onus is on the Crown to exclude mistake and, even if one puts to one side some of the difficulties adverted to in the passage I have quoted from Brooking J, the need for the exercise of this judgment provides good reason why unreasonable mistakes should not be relevant. And although some of the cases seem to suggest that the mistake might be confined to the identity of the person giving the provocation, if mistake is a relevant consideration, it is not obvious why this should be so. Insofar as s23 uses the expression “conduct of the deceased” to refer to the event which has induced a loss of control and which is to be the subject of the test for self control of the ordinary person, there is no logic in concluding that a mistake as to the “deceased” should be any more significant than a mistake as to the “conduct”. If an accused’s thoughts are to be determinative of whether any actions were conduct of the deceased, why should an accused’s thoughts not be determinative of whether any, and if so what, conduct of the deceased occurred at all? After all, in most situations it is probably the conduct that has greater significance than the identity of the deceased.

76 But I need not further pursue this. In summary, I doubt whether, as a matter of construction of s23 mistakes by an Accused can be regarded as “conduct of the deceased”. Even if that view be wrong, the principle for which I have cited R v Ianazzone, viz that “the honest and reasonable belief doctrine requires belief in a state of facts which, if they existed, would made the defendant’s act innocent” and a “belief does not excuse if its truth would have meant, not that no offence was being committed, but that some other and different offence was being committed” precludes regard being had to them. And if that also be wrong, the general principle that mistakes must be both honest and reasonable would limit those to which regard could be had.

77 I turn next to the question of whether I am obliged to accept the plea to manslaughter which the Accused has given and the Crown accepted. The High Court in Maxwell v R (1995-1996) 184 CLR 501 made it clear that the Accused is not convicted until, expressly or implicitly, the Court does so.

78 In Maxwell v R the accused had been charged with murder. He pleaded not guilty to that charge but guilty to manslaughter. On the basis that the accused had suffered from diminished responsibility the Crown accepted the plea in full satisfaction of the indictment. Later, after further evidence and argument, the Crown sought to withdraw its acceptance of the plea and, in any event, urged McInerney J to reject the plea. Upon the ground that the evidence did not show that the Appellant was suffering from diminished responsibility and that he did not feel he could properly sentence the Appellant as if he were, McInerney J, pursuant to a discretion he believed he had, rejected the plea. The Court of Criminal Appeal dismissed an appeal. A further appeal to the High Court, Toohey J dissenting, was allowed.

79 Dawson and McHugh JJ pointed out that an accused is entitled to plead guilty and while there were circumstances in which a trial judge should advise an accused to withdraw his plea and plead not guilty, an accused could not be compelled to do so and if the accused refused the plea must be considered final. Their Honours went on (at p511):-

“The plea of guilty must however be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt. Those circumstances include ignorance, fear, duress, mistake or even the desire to gain a technical advantage.”

80 Later, referring to the right of the Crown to elect under Section 394A of the Crimes Act to accept a plea of guilty to a lesser offence than that charged in an indictment said that “there is no reason to think that a court has the power to supervise the making of that election or to intervene, save to present an abuse of process, any more than it has where the accused pleads guilty to a lesser offence which is charged in the indictment” – at 513.

81 Then, approving an earlier view of the Court of Criminal Appeal in R v Brown (1989) 17 NSWLR 472, their Honours accepted that in connection with the prosecutor’s authority to accept a plea, the court could in an appropriate case interfere to “give effect to it’s own right to prevent an abuse of process…” Dawson and McHugh JJ continued (at 514):-

“A mere difference of opinion between the court and the prosecuting authority could never give rise to an abuse of process. No doubt a court may, if it thinks it desirable to do so, express its view upon the appropriateness of a charge or the acceptance of a plea and no doubt its view will be accorded great weight. … The court’s power to prevent an abuse of its process is a different matter and the question of its exercise could only arise in this context if the prosecuting authority would seem to be acting in an irresponsible manner. That, as experience happily tells, is seldom, if ever, likely to occur.”

82 Dealing with the circumstances of the case before them, their Honours remarked (at 514) that “upon the plea being accepted by the prosecution, the diminished responsibility of the accused was no longer in issue, and the judge was required to approach the task of sentencing the accused accordingly” and his Honour’s own opinion was irrelevant.

83 Toohey J, as I have said, dissented. His Honour was of the view that the court does have power to reject a plea “in the interests of justice” – at p 525.

84 Gaudron and Gummow JJ said (at 534-6):-

“A decision by a prosecutor to accept a plea to a lesser charge, as permitted by Section 394A of the Act, is a decision not to proceed, or, more precisely, not to present evidence on the more serious charge in the indictment and, at the same time, a decision as to the charge which is to proceed. It is insusceptible of judicial review. Subject to two qualifications, judicial review is precisely what is involved in a court’s rejection of a plea which has been accepted under Section 394A of the Act. …

The first qualification to what has been said as to the rejection of a plea accepted by a prosecutor under Section 394A is that it is a different question entirely whether the plea amounts to a confession of guilt or, for some other reason, there is reason to think the accused is not guilty of the offence to which the plea has been offered. In such circumstances, it is always open to a court to reject a plea. …

The second qualification is that, of necessity, a court always retains power to prevent abuse of its process, including its criminal process. It is conceivable that in some circumstances, it might be an abuse of process for a court to proceed on a plea accepted by a prosecutor under Section 394A of the Act – see R v Brown (1989) 17 NSW LR 472 at 479. Should a question arise in that regard, it would also be separate and distinct from the question whether the plea should be rejected.

It follows from the nature of the criminal trial, in which the prosecution bears the onus of proving guilt beyond reasonable doubt that it cannot be an abuse of process to proceed on a lesser charge whether by acceptance of plea under Section 394A of the Act or otherwise, merely because there is evidence which, if accepted, would sustain a conviction for a more serious offence. Similarly, it cannot be an abuse of process to proceed on a manslaughter charge if there is evidence which, if accepted, would support a finding of diminished responsibility in accordance with Section 23A of the Act.

The psychiatric evidence in this case was far from satisfactory. Even so it was capable of supporting a finding of diminished responsibility under s23A of the Act. And there was no suggestion that it was open to McInerney J to reject the Appellant’s plea on the basis that it was equivocal or that there was some reason to doubt that he was guilty of the offence of manslaughter. Accordingly there was no basis for his Honour’s rejection of the plea. In particular, it was not open to his Honour to reject the plea because he was not satisfied that the Appellant’s responsibility for the shooting of his wife was substantially impaired – a course which necessarily involved an impermissible review of the prosecutor’s decision under s394A of the Act.”

85 In R v Brown at p479 the Court of Criminal Appeal said:-

“There may be circumstances in which it is appropriate to characterise a decision by the prosecuting authorities to charge a person with one offence, to which he is prepared to plead guilty, rather than another and more serious offence which he has apparently committed as an abuse of the process of the court. We do not accept that the Director of Public Prosecutions has an absolute and uncontrolled discretion which empowers him to charge an accused person in whatever way he pleases, regardless of the gravity of the conduct of the accused, and then to require the court to give effect to his decision in that regard.”

86 Later at p481 the Court recognised that the discretion of the Director of Public Prosecutions was very wide and “to describe a bona fide decision by the Director of Public Prosecutions as an abuse of the process of the court is no light matter, and courts should pay due regard to the consideration that it is the executive which is entrusted with the primary responsibility of making decisions of this character.”

87 I confess to a deal of difficulty in understanding some of the remarks of the High Court which I have quoted. However, the following propositions are, I think, clear:-

The court has no general supervisory power over the decision of a prosecutor to accept a plea – all 4 judges.

The Court may prevent an abuse of process – all 4 judges.

If there is evidence to support a conclusion that an offender is guilty of the offence the subject of the plea, there is no abuse of process involved in its acceptance or in the court sentencing accordingly. – per Gaudron and Gummow JJ. Dawson and McHugh JJ’s reference to a “mere difference of opinion” is of similar import. Thus the assessment of the weight of the evidence is for the prosecuting authority, not the court.

An abuse of process may arise if the prosecutor is acting in an irresponsible manner – per Dawson and McHugh JJ and Gaudron and Gummow JJ’s reference to R v Brown.

Sufficient disparity between the offence pleaded to and the Accused’s conduct may indicate such irresponsible manner and an abuse of process. See the acceptance by all 4 judges of R v Brown .

The Court is entitled or obliged to examine the plea to see if it is a true admission of guilt – per Dawson and McHugh JJ – or if there is reason to think the accused is not guilty of the offence to which the plea has been offered – per Gaudron and Gummow JJ.

88 It seems to me that statements to the effect that once the plea was accepted, diminished responsibility was no longer an issue and McInerney J’s own opinion was irrelevant must be considered in the light of the above principles. In other words his Honour’s opinion was irrelevant insofar as he had taken it into account in the exercise of the discretion he mistakenly thought he had. I do not understand any of their Honours to have said that the facts or evidence could not be considered and opinions formed thereon, for the purposes of examining whether there was an abuse of process or in considering the other matters that were proper to be considered. It is difficult, if not impossible to see how these matters could be considered without reference to the evidence bearing on the accused’s guilt and the appropriateness of the plea.

89 Furthermore, in the context of being asked to proceed on the basis of a plea accepted by the prosecution, if the Court can act to prevent an abuse of process, it is difficult to see how it can do so other than by refusing to accept the plea.

90 I have more difficulty with the statements by Gaudron and Gummow JJ to the effect that where “there is reason to think the accused is not guilty of the offence to which the plea has been offered … it is always open to a court to reject a plea” and “there was no suggestion that it was open to McInerney J to reject the Appellant’s plea on the basis that it was equivocal or that there was some reason to doubt that he was guilty of the offence of manslaughter.” McInerney J’s rejection of the plea was for the very reason that his Honour did think that the offender before him was not guilty of the offence of manslaughter to which the plea had been offered but, inferentially, guilty of murder.

91 It may be that their Honours were intending to say “guilty of, at least, the offence” of manslaughter but if so, with respect, one would have expected this to have been expressed. Such an approach would accord with the indication by Dawson and McHugh JJ that the court could look to see if the plea was a true admission of guilt or the result of ignorance or fear etc. However, it does not accord with the suggestion that a plea might be vitiated by the further factor of being motivated by a “desire to gain a technical advantage”.

Conclusions

92 Lest it be thought to have been overlooked, it is appropriate to acknowledge at the outset that in my consideration of the evidentiary material relevant to the Accused’s responsibility for the death of Mr Lee, I should proceed on the view of that material most favourable to the Accused, providing that view is reasonably open. For present purposes I include not only the evidence given in the trial, but the Statement of Agreed Facts and the Facts to be Asserted by the Accused. Whether it is evidence in any formal sense, insofar as it contains hypotheses reasonably open, regard must be had to them and to the fact that on any murder trial, evidence in accordance with the document might be given.

93 As I have indicated, there was no conduct of Edward Lee which could constitute provocation and none by anyone else to which, in ordinary legal concepts, he could be regarded a party. When the claim of provocation is analysed, what is relied on as conduct “of the deceased” is what is said to have been a mistaken belief on the part of the Accused that the “Asian boys were part of a group and acting together”. I have stated my view that this is not “conduct of the deceased” within s23, and that because any mistake would only reduce the offence to manslaughter, the doctrine of “honest and reasonable” mistake has no relevant operation. I am persuaded that neither does mere mistake have any relevance. It follows from these conclusions that any act of the Accused causing death was not done under provocation and the Accused is not guilty of manslaughter.

94 I am also of the view that, even accepting the view most favourable to the Accused of the material before me it is impossible to regard the deceased’s conduct, including the Accused’s mistaken view of it, as in the terms of s23(2)(b) “such as could have induced an ordinary person in the position of the accused to have so far lost self-control as to have formed an intent to kill, or to inflict grievous bodily harm upon the deceased”. During the course of discussion with counsel, I described that part of the incident as preceded the stabbing as “boyish fisticuffs” and although this may not adequately reflect the blow which felled the Accused’s brother, it is not far off it. I do not believe that loss of control so as to form an intention to kill or do grievous bodily harm to Mr Lee is or might be the reaction of an ordinary person in the Accused’s position to what occurred or what he might have thought. Levels of self control of violence are not yet so low. In other words, I would not have left the issue of provocation to a jury. On this ground also, the Accused is not guilty of manslaughter.

95 But if one puts aside the conclusions so far reached, there is in the Facts to be Asserted by the Accused, material which could constitute provocation by the deceased, loss of self control by the Accused thereafter and, by inference because of that provocation, and then the stabbing of Mr Lee in the course of that absence of control. Given the purpose for which the document is submitted one would not expect anything less.

96 It is proper however to compare and contrast some of the contents of that document, some of the matters in the Statement of Agreed Facts and some of the evidence in the trial. Both documents assert that the Accused saw his brother struck and fall to the ground. There was evidence in the trial from a number of witnesses that at the time of the events, the lighting was poor. There was evidence that prior to the confrontation involving Mr Peter Son, three of the Asians had passed the Lebanese group without incident. The evidence also indicated that from confrontation to blow took but a very short time. If the Accused was close enough to see his brother struck and fall, it is in the highest degree unlikely that he would not have seen enough of the events which preceded the blow to know that the Asians were not acting together.

97 The Asserted Facts document says that the Accused’s belief that the Asians were all acting together was confirmed by the fact that they all joined the fight. The evidence of Messrs Rhee and Kim indicates that, in any meaningful sense they did not.

98 All of this evidence to which I have referred in the immediately preceding paragraphs was uncontradicted and unchallenged although one must recognise that, in relation to this and other evidence, the Accused’s defence of alibi imposed some restrictions in this regard. I am not conscious of any weakness in the evidence.

99 Both documents assert a loss of self-control. The assertion derives support from evidence from Messrs Power and Rossinski to the effect that the Accused had said to them that he just clicked and possibly from what the Accused did. On the other hand if, as he asserted he thought his brother was at least seriously injured, going off to procure a knife, rather than attending to his brother or ringing an ambulance, seems fairly unlikely. Furthermore, the evidence of Mr Michael Rhee, supported to a significant extent by that of Daniel Son, to the effect that the Accused had said “I’m going to fucking kill one of these cunts today” before, or while running off, as is an almost inevitable inference, to obtain the knife provides, if it is accepted, at least strong evidence that the Accused’s actions were inspired by a desire to punish or for revenge rather than by loss of control. There was no challenge to this evidence. Again, the evidence was not inherently improbable nor were there any obvious problems with the credibility of the witnesses.

100 I acknowledge that in the foregoing I have referred to evidence in the case and that any evidence is liable not to be accepted. However, until the arrangement was made for the Accused to plead guilty, the Crown had called the evidence and was clearly intending to ask the jury to rely on it. The evidence, as I have tried to point out, provided strong grounds for denying a number of the important propositions in the Agreed Statement of Facts and the Asserted Facts document. Yet it is on the basis of the statements in those documents that the plea to manslaughter is said to be supported and accepted and the Accused should be sentenced.

101 It is patently obvious that the only source of some of the most significant aspects of the documents – what the Accused saw and what he believed - is the Accused. His defence of alibi carries with it the irresistible inference that the information was not previously disclosed to anyone in authority – a proposition confirmed from the absence of any mention in the trial of any record of interview. The inconsistency between that defence and his plea to manslaughter necessarily casts considerable doubt on his credibility. Yet I am told that the Crown agrees with the matters set forth in the Agreed Statement of Facts and does not dispute those set out in the Asserted Facts document. Implicitly the Crown also makes what I regard as the unjustified concession of law that the sight of his brother falling to the ground in response to one punch from a group of five 15 to 17 year old boys could have induced an ordinary person in the position of the accused to have so far lost self-control as to have formed an intent to kill, or to inflict grievous bodily harm.

102 And the background to this is the history of the proceedings. In summary, the Crown proceeded against the Accused on a charge of murder. The Accused raised an issue of alibi. Although the Crown called a number of witnesses whose evidence implicated the Accused, the Crown was at risk that they would not be believed, or at least not to the extent necessary to satisfy the jury to the criminal standard. Subject to the Court not refusing to accept it, a plea to manslaughter would ensure the Accused was convicted and punished for something, even if he were not guilty of that charge. For the Accused, conviction for manslaughter is better than a conviction for murder.

103 But that does not make a conviction for manslaughter proper. If the legitimate choices are between verdicts of guilty and not guilty of murder, a conviction for manslaughter, even by agreement, is improper and an abuse of process.

104 I have already indicated my view that, as a matter of law on 2 separate bases, the Accused is not guilty of manslaughter. While in light of the difference of judicial views, the Crown could be forgiven for not adverting to, or taking a different view on, one – mistake, its implicit concession on the other – the s23(2)(b) test, is surprising. In light of the fact that that concession and the Crown’s agreement and acquiescence in the documents have followed, or been an incident of, arrangement for the making and acceptance of a plea to manslaughter, it is obvious that they have been influenced thereby.

105 Furthermore, experience of the extent to which claims such as that now advanced on the Accused’s behalf, supported in essential aspects by only his word, have been left by the Crown for a jury’s consideration in other cases persuades me that the Crown’s agreement and acquiescence is inspired by the willingness to plead guilty to manslaughter. Although commonly the Court will not know what information the Crown has, in this case, I am persuaded that the agreement and acquiescence is part of the price paid for the plea rather than a proper reflection of the available evidence.

106 In my view, this approach by the Crown represents an abuse of process. Furthermore, in the circumstances, it would also be an abuse of process for the Court to convict the Accused of the offence of manslaughter of which he is not guilty.

107 I am also satisfied that the Accused’s plea to manslaughter was entered, in the words of Dawson and McHugh JJ, “to gain a technical advantage”, viz. to avoid the possibility of conviction for murder.

108 I make it clear that the fact that in the Accused’s trial the only substantive issue was whether the Accused’s stabbed the deceased does not preclude consideration of the topic of provocation. And there is nothing inherently wrong in the Crown and an accused making an arrangement that he will plead guilty to manslaughter and the Crown will accept the plea where there is doubt whether the Accused is guilty of murder or manslaughter. However, it cannot be other than an abuse of process if, on no view of the evidence is the Accused guilty of manslaughter or if, to achieve that agreement or the implementation of it, some perverse or unwarranted view of the facts or the evidence or the law has to be adopted.

109 In saying what I have in the immediately preceding paragraph, I do not, for one moment forget that Gaudron and Gummow JJ said in Maxwell v R that it cannot be an abuse of process merely because there is evidence which, if accepted, would sustain a conviction for a more serious offence and that Dawson and McHugh JJ said that “a mere difference of opinion between the Court and the prosecuting authority could never give rise to an abuse of process”. However, that is not this case. While I clearly do differ from the Crown in a number of respects, my conclusion depends on matters more fundamental.

110 Before I leave these Reasons, I should turn to another topic. Because of the possible prejudice to any further trial of the Accused, particularly one in the near future, I made an order prohibiting publication until further order of the proceedings relating to the acceptance of the Accused’s plea. On reflection, I have reached the conclusion that I should lift that order. While there may be some publicity attendant on the publication of these Reasons, that is something that happens to many alleged offenders prior to their final trial and rarely, if ever, leads to the conclusion that a fair trial, even if delayed, cannot be held. And jurors can be challenged for cause.

111 On the other hand, as the High Court in Maxwell v R made clear, the Court has no supervisory role over the Director of Public Prosecutions. What happens hereafter to the Accused, whether the charge of murder is pursued, lies largely if not exclusively in the Director’s power. I have taken the view that what has occurred to date is improper and the public has a legitimate interest in knowing now of what that has been and of my conclusions. Accordingly my formal orders are:-

1. I refuse to accept the Accused’s plea of guilty to manslaughter.

2. I vacate the orders for non-publication of the proceedings made by me on 27 and 30 September 2002.

R v DIB

11 October 2002

Errata

The version of these Reasons originally published on 9 October 2002 contained errors. These have been corrected in this document. This note indicates the changes.

Changes to punctuation have occurred in paragraphs 20, 26, 29, 55, 62, 73, 75, and 81.

In the paragraphs listed below, the following changes have been made:

8 “or” has been deleted between “Lebanese” and “group”
12 “persons” has replaced “person”

19 “persons” has been deleted

108 “to “ has been deleted before “that he will”

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Last Modified: 10/14/2002

Citations

R v Dib [2002] NSWSC 934

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111

Bell v Tasmania [2021] HCA 42

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10

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Clarke v Regina [2008] NSWCCA 36

Jiminez v the Queen [1992] HCA 14

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CITATION:	R v DIB [2002] NSWSC 934 revised - 11/10/2002
FILE NUMBER(S):	SC 70104/01
HEARING DATE(S):	16-30 September 2002
JUDGMENT DATE:	9 October 2002
PARTIES :	Regina Moustapha Dib
JUDGMENT OF:	Hulme J at 1

COUNSEL :	Mr P Conlon SC (Crown) Mr W Terracini SC (Accused) Mr P Newton (Accused)
SOLICITORS:	SE O'Connor (Crown) TA Murphy (Accused)
CATCHWORDS:	Criminal Law - abuse of process - plea of guilty to manslaughter
DECISION:	Plea of guilty to manslaughter not accepted