R v Gangi
[2004] VSCA 244
•17 December 2004
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 165 of 2003
| THE QUEEN |
| v. |
| ANTHONY LOU GANGI |
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JUDGES: | WINNEKE, P., CHARLES and CHERNOV, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 7 December 2004 | |
DATE OF JUDGMENT: | 17 December 2004 | |
MEDIUM NEUTRAL CITATION: | [2004] VSCA 244 | |
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Criminal Law – Murder – Stabbing - Self defence and provocation– Propensity warning not in standard form – No error in propensity direction –– Consciousness of guilt - Post offence conduct: flight, self-inflicted wounds, lies– Provocation – Objective test – Application for leave to appeal against conviction dismissed.
Criminal Law – Sentence – Murder - Total effective sentence of 21 years’ imprisonment with non-parole period of 17 years not manifestly excessive – Application for leave to appeal against sentence dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R.A. Elston, S.C. | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Applicant | Mr T. Kassimatis | Leanne Warren & Associates |
WINNEKE, P.:
I agree with Chernov, J.A. that the applications for leave to appeal against conviction and sentence should be refused. I do so generally for the reasons given by his Honour.
CHARLES, J.A.:
I agree with Chernov, J.A.
CHERNOV, J.A.:
On 10 May 2003, following a nine day trial before a judge and jury in the Supreme Court at Melbourne, the applicant, Anthony Lou Gangi, who is now aged 35 years was found guilty of murdering his older brother, Salvatore Michael Gangi. Not long thereafter, the applicant terminated his counsel’s retainer and, notwithstanding having been granted an adjournment to seek alternative representation, appeared for himself at the hearing of the plea of mitigation in sentence. On 12 June 2003, the learned judge sentenced him to 21 years’ imprisonment and ordered that he serve a minimum term of 17 years’ imprisonment before being eligible for parole.
By notices dated 17 June 2003, the applicant sought leave to appeal against conviction and sentence on the respective grounds that the verdict of the jury is unsafe and unsatisfactory and the sentence is manifestly excessive. On 29 November 2004, the applicant gave written notice of intention to substitute new grounds in each of his notices. When the matter came on for hearing before us, the applicant applied to substitute these proposed grounds. In the event, the Court gave the applicant leave to argue his application on the basis of the new grounds, reserving to itself the decision whether to grant the leave sought until after it heard and considered argument. Before dealing with the substantive grounds, I shall describe briefly the circumstances of the offending.
Circumstances of the offending
The offence was committed on the evening of 25 January 2002 on the footpath outside a hotel, known as Jukes Tavern, which is located near the corner of Jukes Road and McDougall Street, Fawkner. According to a number of witnesses, the applicant had been standing in that area for several hours on that day[1], as if he was waiting for someone. He carried, concealed on his person, a kitchen knife with a serrated blade that was approximately 15 to 20 centimetres in length. At approximately 8.30 p.m., the deceased, his wife and two of his three young children were driving to Brunswick to meet a friend, having earlier had dinner with the applicant’s parents at their house in Coolaroo. Instead of taking the most direct route, the deceased turned into Jukes Road, travelling in the direction of Jukes Tavern. The deceased had been informed earlier that day by his brother, Joseph, that the applicant had been seen in the vicinity of Jukes Tavern and it appears that the deceased went there for the purpose of confronting the applicant regarding his conduct towards the deceased and other members of his family, to which further reference will be made later. Upon sighting the applicant, the deceased parked the car generally adjacent to him, got out and walked over to him. His wife followed a very short time later walking about a metre behind him. The deceased was not armed but he was significantly bigger and stronger than the applicant and, as he approached him, yelled abuse at the applicant. The deceased’s wife also yelled at the applicant before returning to the car in tears and calling the police on her mobile telephone. From the car, she was able to see both men. The deceased continued to argue with the applicant and, as the applicant was walking away, the deceased followed him. After walking only a few metres, the deceased pushed the applicant with two hands to his chest, knocking him off his feet and causing him to fall against an adjacent shop window. The applicant quickly regained his balance, and lunged at the deceased with a knife, fatally stabbing him to the left side of his chest, through his heart. The evidence of several witnesses was that at the time of, and just before, the stabbing the deceased did not have a knife in his hands and that, when the applicant lunged at him, the deceased’s empty hands were raised and he was trying to move his body away from the applicant. The deceased was taken to hospital by ambulance and died early the next morning from the wound.
[1]The evidence of Robert James Alicata was that he saw the applicant there on that day as early as 11 a.m. in morning. Robert Denis gave evidence that he had seen the applicant there on that day at 3.30 p.m. A regular patron of the hotel, Gary Multari, also said that he had seen the applicant hanging about the area during the previous few days.
After the stabbing, the applicant ran from the scene, made his way to his car and drove to a friend’s house. From there, he telephoned his girlfriend, Donna Frost, and arranged for her to collect him in her car from a nearby service station. Frost met the applicant at the nominated service station and the pair drove in her car to the applicant’s flat in Reservoir. The next morning, at approximately 2.45 a.m., a number of police officers from the Homicide Squad arrived at the applicant’s flat. One of them telephoned him from outside the premises, telling him that the police wanted to speak with him. The applicant agreed to come outside and meet police but, instead of walking out the front door, he escaped through the back door. Shortly thereafter, however, he was found hiding in a neighbour’s back yard and was taken into custody. Upon searching Frost’s car, the police found in the glove box a kitchen knife with a serrated blade that had bloodstains on it. The DNA samples taken from it showed that it included material which matched the DNA profiles of both the applicant and the deceased.
In his proposed grounds of appeal relating to conviction, the applicant contends that his Honour erred in the directions he gave to the jury on the issues of propensity, consciousness of guilt and provocation. In order better to appreciate the context in which such directions were given, their terms and the respective arguments of the parties in relation to them, it is necessary to summarise the applicant’s defence case at trial and that of the Crown.
The applicant’s case at trial
The applicant did not deny that he fatally stabbed the deceased, but claimed that he did not do so with the intention of killing him or causing him really serious injury. His defence was that, when the deceased confronted him, he was unarmed and that the knife he used to inflict the fatal wound was taken by him from the deceased during their struggle. He claimed that he stabbed the deceased in self-defence and said to the police during his interview that he had been attacked by the deceased and was in fear for his life when he stabbed him. In support of his claim of self defence the applicant pointed to a number of cuts that were on the back of his left hand (“the hand wounds”) and on the inside of his left forearm (“the forearm wounds”) which, he said, were inflicted by the deceased during the struggle for the knife. The applicant further said that, during the months prior to the incident, the relationship between the deceased and himself had deteriorated markedly and that on the evening in question the deceased’s aggressive attitude to him, including his physical assault, made him lose his self-control and, while in that state, stabbed the deceased with the deceased’s own knife.
Relationship evidence
There was a considerable amount of evidence given at the trial about the applicant’s attitude towards the deceased and other members of the family. It seems that, during the seven or eight months prior to the deceased’s death, the applicant’s relationship with members of his family was very strained. He felt particular animosity towards the deceased and two of his brothers, Joseph and Riccardo, which stemmed from an argument that they had at their parents’ home in Coolaroo on Mothers’ Day, 13 May 2001. The applicant had been drinking all day and was intoxicated by the time the deceased arrived that evening. He asked the deceased to have a drink with him but the deceased refused. The applicant became increasingly disruptive and was eventually asked to leave by his parents. When he refused he was forcibly ejected from the house by the deceased and Joseph, but came back approximately half an hour later looking for his car keys. At this point, a small scuffle broke out between the applicant and his brother Riccardo, but this was quickly stopped by their mother and the applicant left and did not return.
When Joseph came home that night, he discovered that the windows of his car had been smashed and its tyres slashed. He telephoned the deceased, who said that the same thing had been done to his utility, which had been parked in the driveway of his house. The brothers suspected that the applicant was responsible for the damage to their cars and they reported the matter to the police. The police told them that if they located the applicant, the police would arrest him. As a result, during the next few days, Joseph, Riccardo and the deceased searched for the applicant and eventually found him in a panel beating shop. They forcibly held him down until the police arrived. He was arrested and, in the event, spent six months’ in custody but in relation to matters other than the damage that was caused to the two vehicles. During his period of incarceration, the applicant spoke to his father a number of times and admitted to him that he had damaged the deceased’s and Joseph’s cars. But he held his three brothers responsible for his incarceration and threatened on a number of occasions to harm them. He made frequent threats to or in relation to them such as: “Yous dogs better watch your backs.”
The applicant was released from prison on 14 November 2001. On 19 November 2001, a truck parked in the driveway of the deceased’s home was fire bombed. Once again the deceased reported the matter to the police but was told that there was nothing they could do about it. The deceased’s wife, Anna Gangi, gave evidence that the applicant made threatening telephone calls to her home on 5 December 2001 and 31 December 2001, and that he had said to her that he was going to kill the deceased. As a result she obtained an interim intervention order against him. On 22 January 2002, the windows of the applicant’s parents’ house were smashed and Riccardo claimed that shortly thereafter he saw the applicant across the street. On 25 January 2002, the applicant went to his parents’ home. He told his father that he only had one brother, Gino, and that his other three brothers, the deceased, Riccardo and Joseph, were “dogs”. Later that day, he told Riccardo in his father’s garage that the three brothers were going to pay for having him sent to gaol. Riccardo said that during the conversation the applicant suddenly pulled out a knife, which was similar in appearance to that with which the applicant stabbed the deceased, and said: “Don’t think I haven’t used this before” and “Youse are gonna pay for what you have done, and this is not over.” According to Riccardo, the brothers knew that the applicant usually carried a knife because he had previously shown it to them.
The Crown case at trial
A critical issue at the trial was whether the applicant was armed with the knife when he met the deceased outside Jukes Tavern or whether he took it from the deceased and stabbed him in self-defence or while provoked as he contended. In support of its case that it was the deceased who had possession of the knife from the outset, the Crown pointed to Riccardo’s evidence that the applicant had produced a knife in his father’s garage and as to what the applicant had then told him about his prior use of that knife to inflict harm as well as to evidence that the applicant was known to carry a knife, had made threats towards the deceased and had falsely claimed that the deceased had wounded him. The Crown also relied in that regard on the evidence of three witnesses who saw the incident and who said, in substance, that at no stage was there a knife in the hands of the deceased.
In respect of the applicant’s claim that he stabbed the deceased in self-defence and that his wounds were supportive of this fact, the Crown said that the wounds were self-inflicted and that the applicant had lied to the police when he told them that the wounds were caused by the deceased after he produced the knife and the applicant tried to take it from him. By this lie, claimed the Crown, the applicant sought falsely to establish self-defence and provocation. Moreover, it claimed the lie, taken together with the self infliction of the wounds and his flight after the stabbing, demonstrated consciousness of guilt on his part. In that regard it pointed to the evidence of a witness who saw the applicant shortly after the stabbing and who said that he did not observe any blood on him. The Crown also relied, in relation to that aspect of its case, on the evidence of the applicant’s father who said that one of the applicant’s forearm wounds was inflicted by the applicant himself in front of him on the day of the killing, but before it took place. His father explained that the applicant cut his forearm in a gesture of bravado by which he sought to demonstrate to his father the genuineness of his claim that he did not damage the windows of his father’s house on 22 January 2002, as I have earlier mentioned.
Grounds of appeal
I now turn to consider the applicant’s proposed grounds of appeal that were pressed and the submissions in support of them, and I do so in the order in which they were argued. There were five such grounds that related to the application for leave to appeal against conviction and two that challenged the sentence. I will deal first with the proposed grounds that relate to conviction.
Conviction application
Ground 2 – error in propensity evidence direction
Under cover of proposed ground 2, which was argued first, Mr Kassimatis for the applicant, contended that his Honour failed to adequately direct the jury as to how they could properly use in their deliberations the evidence of Riccardo as to what transpired between him and the applicant in their father’s garage. Counsel argued that, because of the prejudicial nature of Riccardo’s evidence, the jury should have been told either to disregard it or that they must not reason, on the basis of it, that the applicant:
(a)had a general disposition for violence or violent crime;
(b)was the kind of person likely to carry and use a knife; and
(c)was the kind of person likely to have murdered his brother.
It was claimed that the judge failed so to direct the jury and that, therefore, the applicant was denied a fair trial.
In my view Riccardo’s evidence to which I have referred earlier,[2] if accepted, was clearly relevant to the competing cases before the jury, particularly on the question which of the applicant and the deceased was armed with a knife when they first confronted one another outside Jukes Tavern. More generally, the evidence was also relevant, inter alia, on the issues of self-defence and provocation. But it is also apparent that the evidence was prejudicial to the applicant. It was propensity evidence in the sense that it was capable of being used by the jury as showing that the applicant had a disposition to engage in conduct of the kind charged. Where the Crown leads evidence of the accused’s unlawful conduct that does not form part of the charged offence - here the applicant’s inferential admission of unlawful use of a knife on previous occasions and evidence that he was usually armed with one – in order to safeguard the accused against the risk of such evidence working substantial prejudice against him or her, it is ordinarily necessary for the judge to tell the jury the purpose for which the evidence was admitted, that it does not itself prove the offence charged, the use to which they can properly put it in their deliberations and, importantly for present purposes, that they are not permitted to reason that such evidence shows the accused to be the kind of person likely to commit the offence alleged. See for example R. v. Best[3], R. v. Vonarx[4], and BRS v. The Queen[5]. That the requirement for such a direction is not confined to cases of propensity evidence led in sexual offence cases has been made clear, for example, by Ormiston, J.A. in R. v. Georgiev[6]. Thus, the relevant question for present purposes is whether the learned trial judge gave appropriate directions in that regard to the jury.
[2]See paragraph [11] above.
[3][1998] 4 V.R. 603 at 615-616 per Callaway, J.A.
[4][1999] 3 V.R. 618 at 622-625 per Winneke, P., Callaway, J.A. and Southwell, A.J.A.
[5](1997) 191 C.L.R. 275 at 308-309 per McHugh, J.
[6](2001) 119 A. Crim. R. 363 at [56].
In his charge, his Honour explained to the jury that Riccardo’s evidence was disputed by the applicant and that, if they were not satisfied beyond reasonable doubt that the knife was produced by the applicant to Riccardo as he claimed, they also could not be satisfied that the applicant said what he was supposed to have said to Riccardo about his previous use of a knife. The learned trial judge also cautioned the jury that the statements so attributed to the applicant, if made, were made in the course of an emotional confrontation so that, consistently with the warning he had given them earlier, the jury had to be cautious in considering whether the statements were “no more than statements of bravado, or exaggerated expressions of anger”. His Honour went on to tell the jury that, on the assumption that they accepted Riccardo’s evidence, they:
“... must not use the alleged statement by the [applicant] that he had used a knife before as demonstrating a propensity to murder. That is a propensity to stab with intention to kill or cause really serious bodily harm, or to so stab otherwise than in self-defence or without lawful excuse.”
The learned trial judge gave a like direction in relation to Riccardo’s evidence that the applicant used to carry knives all the time, saying that “You must not use [that] evidence … as evidence that he had a propensity to murder”. His Honour then went on to direct the jury that if they were satisfied beyond reasonable doubt that Riccardo’s evidence to the effect that the applicant usually carried a knife and professed to having previously used it to inflict harm to others was true, then they could use that evidence as part of the relevant evidence in evaluating the applicant’s case that it was the deceased who produced the knife and that the applicant took it from him before he stabbed him.
Mr Kassimatis argued that his Honour’s direction was inadequate for a number of reasons. First, it was said, it failed to explain the meaning or content of the term “propensity” and that, as such, the jury would not have understood that they were prohibited from reasoning on the basis of Riccardo’s evidence that the applicant was the kind of person who was likely to have murdered the deceased. By reference to certain observations of Callaway, J.A. in R. v. Grech[7], counsel said that the jurors were not logicians and that they “must have spelled out to them expressly the implications of a prohibition of law and the chain of reasoning that is forbidden by it”. Merely to tell the jury, said counsel, that they ought not to reason that the applicant “had a propensity to murder” was not sufficient. Furthermore, it was claimed that to have told the jury not to reason that the applicant had a propensity to stab someone with mens rea was to encourage them to engage in the prohibited reasoning process because such a direction would have “positively invited them to reason that [the applicant] might be the kind of person who carried and used knives simpliciter.” In that context, counsel referred to the observations of Callaway, J.A. in R. v. Macfie[8]. He went on to submit that, by effectively “inviting” the jury to use the applicant’s “apparent propensity for [carrying] knives in assessing the credit of his defence”, his Honour “did little more than render it a virtual certainty that they did reason impermissibly that he was the kind of person who carried and used them.”
[7][1997] 2 V.R. 609 at 612.
[8][2002] VSCA 51 at [2]-[7].
Before dealing with counsel’s submissions as to what should have been the content of the propensity warning given to the jury, it is convenient to put in context the observation of Callaway, J.A. in Grech[9] that jurors “are not logicians”. In that case, the trial judge directed the jury that evidence of the accused’s extraneous sexual conduct, consisting of uncharged acts, was admitted for limited purposes only (which the judge identified) and that it was not to be treated by them as evidence of the specific charges under their consideration. The trial judge said that, if accepted, the evidence could be treated as establishing the nature of the relationship between the accused and the complainant and that it showed that the conduct alleged in the charge was not an isolated instance. In the event, the accused was convicted of a number of counts of incest. He appealed, alleging that the charge was materially deficient because it did not contain a propensity warning. In response to that argument, counsel for the Crown submitted that the direction was sufficient to convey to the jury that they must not reason that, because the accused had engaged in similar unlawful conduct on the earlier occasions, he was the kind of person likely to have committed the offences with which he was charged. Counsel for the Crown emphasised that the jury, having been told that the relevant evidence was admitted “for limited purposes only” and directed as to how they could use it, would have found it obvious that it could not be used as evidence of propensity. It was in relation to that submission that Callaway, J.A. said:[10]
“Logically that is true, but a jury are not logicians. It is often necessary to make explicit an important consequence implicit in a direction. The same is sometimes true of a judgment. In the first paragraph of the passage from R. v. Vonarx … the court said that evidence of uncharged acts can be used ‘only for the limited purpose of determining whether a sexual relationship existed between the complainant and the accused’, but it was still thought necessary to add that the jury should be told not to reason that the accused is the kind of person likely to commit the offence charged.”
By reference to various authorities, including R. v. Vonarx; R. v. Beserick[11] and R. v. T[12], his Honour then said, in the well-known passage in his judgment[13], that the jury should have been told explicitly not only of the limited purpose for which the extraneous evidence was admitted and given a separate consideration warning, but that they should also have been told by the trial judge that they “must not reason that, because the applicant engaged in sexual conduct with his daughters on one or more earlier occasions, he was the kind of person who was likely to have done so on the occasions charged.”
[9]At 612.
[10]At 612.
[11](1993) 30 N.S.W.L.R. 510.
[12](1996) 86 A. Crim. R. 293.
[13]At 614.
That his Honour did not explain to the jury the meaning of “propensity” cannot mean, I think, that they would not have understood its meaning or the chain of reasoning which they were prohibited from adopting. It must be assumed that the jury would have understood, in the context in which the word “propensity” was used, it meant “tendency” or “inclination”. It is true that the terms of his Honour’s direction to which I have referred were not precisely in the terms of the “standard” propensity warning ordinarily given in this State along the lines stated by Callaway, J.A. in Grech and in R. v. J (No.2)[14]. In the latter case, his Honour said[15]:
“In this State [the jury] are told that they must not reason that, because the accused engaged in particular conduct on one or more earlier occasions, he is the kind of person who is likely to have engaged in similar conduct on the occasion charged.”
But, as Callaway, J.A. emphasised in Grech[16] and in Macfie[17], there is no set form of words or “magic formula” that has to be used in giving a propensity direction – the form of it must be tailored to the circumstances of the particular case. Importantly, his Honour emphasised[18] that “an accused is not entitled to a series of directions, each direction reflecting the language of one or other of the authorities”. It is plain enough, I think, that this Court considers that there is no strict formula that must be used in order for a propensity warning to be sufficient to ensure a fair trial and each such direction must be tailored to the particular case.
[14][1998] 3 V.R. 602.
[15]At 641. Winneke, P. and Charles, J.A. agreed with his Honour at 614.
[16]At 613.
[17]At [6].
[18]At 613.
Consequently, the real question is whether his Honour’s propensity warning, set out above, sufficiently conveyed to the jury, in the circumstances of this case, the reasoning process that is forbidden to them. Put another way, did his Honour’s failure to use the words sanctioned in Grech and in R. v. J (No.2) mean that the direction was inadequate? I consider that what his Honour relevantly told the jury was sufficient to convey that prohibition to them. It is understandable, I think, why his Honour did not strictly follow the form of the propensity warning that is ordinarily appropriate to cases involving sexual offences such as those that affirmed the basis of the counts in Grech, Macfie and R. v. J (No.2). In this case, it was important to convey to the jury that they must not reason that the applicant’s extraneous conduct showed that he was the kind of person who was likely to have used the knife to murder the deceased. And in my view the words chosen by his Honour would have sufficiently conveyed this to the jury.
I also consider that it was not necessary that, in order to ensure a fair trial, the jury had to be told, as Mr Kassimatis submitted, that they were prohibited from reasoning on the basis of Riccardo’s above evidence that the applicant was the kind of person who carried and used knives and had a disposition for violence. The prohibition in question was against the jury reasoning on the basis of that evidence that the applicant stabbed the deceased with the relevant intention. It does not follow, however, that the jury could not have proper regard to that evidence in determining other issues such as which of the applicant and the deceased was armed with the knife at the relevant time and whether the stabbing was done in self-defence or under provocation.
Although not determinative of the issue now under consideration, I note that, unsurprisingly, I think, no exception was taken by the applicant’s trial counsel to this aspect of his Honour’s charge so that it may be assumed that he saw no error in, or injustice flowing from, the impugned part of his Honour’s charge.[19] In the circumstances, I consider that there was no error in his Honour’s charge as the applicant contends under cover of the proposed ground 2.
[19]See, for example, R. v. Wright [1995] 3 V.R. 355 at 356 per Phillips, C.J. and Charles, J.A. and at 360-361 per Callaway J.A.; R. v. G.A.M. [2003] VSCA 185 at [10] per Winneke, P.
Grounds 1A and 1B – post-offence conduct and lies
It has already been mentioned that the Crown relied on the applicant’s post-offence conduct, namely, his flight from the scene of the stabbing, his allegedly self-inflicted wounds and his alleged lie to the police that the forearm wounds were inflicted by the deceased, as demonstrating his consciousness of guilt for his brother’s murder. Under cover of proposed Grounds 1A and 1B the applicant’s counsel submitted that his Honour erred in allowing evidence in support of these matters to be left to the jury on the basis that it demonstrated the applicant’s consciousness of guilt. In that context it was also said for the applicant that his Honour erred in leaving to the jury the Crown’s claim that the applicant’s omission to tell the police that at least one wound on his forearm was self-inflicted amounted to a lie which was capable of being evidence of consciousness of guilt. In any event, it was claimed, his Honour’s directions on this issue were inadequate and the fact that they were repeated by the judge on three occasions during his charge, compounded the prejudice of such a direction to the applicant. Consequently, it was said, the trial miscarried.
More particularly, Mr Kassimatis submitted that there was no evidence on which the jury could properly find that the applicant’s wounds were self-inflicted or that they were caused after the death of the deceased. A like complaint had been made to his Honour by the applicant’s trial counsel by way of an exception to the charge. But, as his Honour said in response to that complaint, it was open to the jury to conclude, by looking at the photograph of the wounds and from the fact that the applicant conceded that he cut his wrist in his parents’ kitchen, that he could have caused the relatively slight hand wounds (which his Honour described as “nicks”). Any risk that the jury might improperly reason that these matters demonstrated consciousness of guilt on the part of the applicant would be met, said his Honour, by an appropriate direction.
In my view there was no miscarriage of justice in his Honour leaving to the jury the applicant’s alleged post-offence conduct as evidence of his consciousness of guilt. First, if accepted, the evidence of the applicant’s relevant conduct was plainly capable of being regarded as amounting to consciousness of guilt on his part. It went beyond being relevant only to his credit as was contended for by the applicant’s counsel. Next, I consider that it was open to the jury to find on the evidence, as his Honour explained, that the applicant’s wounds were self-inflicted. Similarly, it was open to the jury to conclude on the basis of, inter alia, the father’s evidence that, by saying to the police by reference to his forearm wounds that “they” were caused by the deceased the applicant told a lie. Likewise, the jury could have regarded the applicant’s failure to tell the police that at least one of the forearm wounds was self-inflicted as being part of his false representation to the police that the wounds were caused by the deceased. If the jury were satisfied about these matters, it would have been open to them to treat the applicant’s post-offence conduct (including the lie and his flight) as evidence of his consciousness of guilt or, put another way, as evidence that the applicant knew that the truth would implicate him in the crime charged.[20]
[20]R v. Camilleri (2001) 119 A.Crim.R. 106 at [26] per Phillips, C.J. and Brooking, J.A.
I also consider that his Honour’s impugned direction on these issues is adequate and very fair to the applicant. In the charge his Honour carefully explained to the jury how the Crown sought to rely on the applicant’s post-offence behaviour, particularly his self-infliction of the wounds and his false representation that it was the deceased who cut his hands and forearms as demonstrating consciousness of guilt on his part. He directed the jury that the Crown’s ability to rely on lies as consciousness of guilt was tied to the jury’s ultimate acceptance that the applicant’s wounds were self-inflicted. His Honour went on to tell the jury that they could only use this behaviour as evidence of the applicant’s consciousness of guilt of the crime charged if they were satisfied, not only that the wounds were self-inflicted and that the applicant lied about it as the Crown alleged, but also that the only interpretation reasonably open is that such behaviour shows consciousness of guilt. And he was at pains to tell the jury that there could have been many reasons, consistent with innocence, why the applicant inflicted the cuts upon himself after the stabbing of the deceased and then lied about it to the police.
In the circumstances, therefore, I would reject the claims made under these proposed grounds.
Ground 3 -provocation
As I have mentioned, at his trial, the applicant claimed that the deceased’s aggressive confrontation of him outside Jukes Tavern caused him to lose self-control and provoked him to stab the deceased. Thus, it was said, even if the jury were to be satisfied to the requisite standard that the applicant inflicted the fatal wound with the intention of killing the deceased, or causing him really serious injury, he could only be found guilty of manslaughter and not murder.
Given that the applicant raised, at his trial, provocation as an excuse for his offending conduct, it was for the Crown to establish, to the requisite standard, that the killing did not take place while he was provoked. The learned trial judge gave the jury a comprehensive explanation of the concept and operation of provocation and related the principles to the circumstances of the present case. As he did with all his directions on the law, his Honour gave his charge on this issue by reference to the aide memoir that he gave to the jury, which summarised the relevant principles. I note that no objection was taken by the applicant’s trial counsel to this document or to his Honour’s charge on provocation. One can assume with some confidence, therefore, that the applicant’s trial counsel did not consider that the charge was materially inadequate as the applicant now alleges or that any injustice flowed to the applicant by reason of the impugned charge.
Before us, however, Mr Kassimatis (who did not appear at the trial) attacked his Honour’s charge insofar as it was concerned with the objective component of the defence of provocation. More particularly, counsel contended that his Honour erred by instructing the jury to assess the conduct or reaction of the applicant to the deceased’s aggressive conduct towards him by reference to the likely reaction of an ordinary person in the same circumstances. Counsel claimed that his Honour should have directed the jury to consider “whether the ordinary person would have lost control to the point of forming an intention to kill or cause really serious injury” and that it was impermissible, for the purpose of determining whether the partial defence of provocation was available to the applicant, merely to “equate” or “compare”, as his Honour did in his charge, the reaction of an ordinary person to the deceased’s conduct with that of the applicant.
In support of this submission, Mr Kassimatis relied principally on what was said by this Court in R. v. Thorpe(No.2)[21] and by Callaway, J.A. in R. v. Conway[22]. In the latter case, Callaway, J.A. referred[23] to the following passage from the joint judgment of Brennan, Deane, Dawson and Gaudron, JJ. in Masciantonio v. R.[24]:
“[T]he question is whether the provocation, measured in gravity by reference to the personal situation of the accused, could have caused an ordinary person to form an intention to kill or do grievous bodily harm and to act upon that intention, as the accused did, so as to give effect to it.”
His Honour then noted[25] that the words “as the accused did” should not be misunderstood. Putting recklessness to one side, said his Honour, “it is the formation of an intention to kill or do really serious physical injury and the carrying out of that intention which are the important considerations, rather than the precise way in which the accused reacted: see R. v. Thorpe (No.2)[26].”
[21][1999] 2 V.R. 719 at 724-725 per Winneke, P., Callaway and Chernov, JJ.A.
[22][2004] VSCA 181.
[23]At [2].
[24](1995) 183 C.L.R. 58 at 69.
[25]At footnote 3.
[26]At 724.
In Thorpe (No.2), this Court found the trial judge’s charge on provocation materially deficient because, in describing the features of the ordinary person, his Honour failed to make it clear to the jury that the gravity of the provocative words or conduct was to be assessed by reference to the characteristics of the accused, this being relevant not just to the subjective test, but also to the objective test. Relevantly, the Court explained[27] the objective test in the following terms:
“2.The objective test is whether the provocative words or conduct measured in gravity by reference to the personal situation of the accused, could have caused an ordinary person to lose self-control to the extent that the accused did: see Stingel and Masciantonio v. R. (Putting recklessness to one side, as the High Court did in Masciantonio, it is the formation of an intention to kill or do very serious physical injury and the carrying out of that intention which are the important considerations, rather than the precise way in which the accused reacted ...)” (Citations omitted.)
[27]At 724.
It is plain that, since provocation was properly raised by the applicant in the circumstances of this case, the jury should have been told in relation to the objective component of the doctrine that it was for the Crown to establish, to the requisite standard, that the provocative conduct of the deceased, the gravity of which was to be measured by reference to the personal situation of the applicant, would not have caused an ordinary person to lose self-control to the extent that the applicant did and stab the deceased with the intention of killing him or causing him really serious injury.
As I have said, the learned trial judge explained to the jury, in comprehensive terms, the concept of provocation and its potential operation in the circumstances of the case. More particularly, in relation to the objective component, his Honour said that the jury were to consider:
“... [whether] the accused did stab the deceased with the intention to kill or cause him really serious injury while in such a state of loss of self-control, [and whether] the ordinary sober person aged 33 would not have been provoked to do what the accused did by provocation of such gravity.”
In determining the gravity of the provocation, said his Honour, all the characteristics of the applicant and the deceased must be considered in the context of their past relationship. His Honour then explained to the jury the application of the various components of provocation to the circumstances of the case and relevantly said:
“You will have to consider whether taken at its highest any ordinary person of that age with ordinary powers of self-control might have reacted in such a violent way to such provocation as may have been given. Perhaps the ordinary person might have got angry enough to pull out a knife and threaten and even cut the deceased. But would that be as much as would be done?
The Crown says the fatal incident was a sudden and vicious and disproportionate response to [the deceased’s] actions and no ordinary person would stab the deceased with the intention of killing or causing really serious injury to the deceased. The defence, however, submits that what you have to look at is what occurred in the context of the totality of the circumstances and [whether] the gravity of the provocation to [the applicant] in the circumstances including the pre-existing relationship of the brothers was such as to give rise to a reasonable possibility the ordinary man might have lost self-control and stabbed [the deceased].”
His Honour then summarised to the jury the issues in relation to provocation by saying that the Crown had to satisfy them beyond reasonable doubt that “... there is no reasonable possibility that the provocation was such that it was capable of causing an ordinary person to lose control and act in the way [the applicant] did, having regard to the gravity or sting of such provocation in the context of the circumstances affecting [the applicant], including the prior family relationship”.
It is true that his Honour did not tell the jury, in terms, that the ordinary person with whom the applicant was to be relevantly compared, was one who might have been provoked by the deceased to form the intention to kill or do really serious physical injury to the deceased and to carry out that intention by stabbing him. But I consider that it would have been obvious to the jury from the whole of his Honour’s charge that the ordinary person had to be one who might have been provoked into intentionally killing the deceased. It is important to bear in mind that the learned trial judge commenced the relevant part of his charge by telling the jury that provocation would arise for their consideration only if they were first satisfied beyond reasonable doubt that the applicant stabbed the deceased with the intent to kill him or cause him really serious injury and his acts were not done in self-defence. Thus, his Honour said, as I have noted, that the jury had to consider whether an ordinary person with the applicant’s characteristics might have been provoked to do “what the applicant did”, it would have been plain to them that, in context, “what the applicant did” was to stab the deceased with the relevant intent and, therefore, the relevant question for them was whether the ordinary person might have reacted to the deceased’s conduct by stabbing him with the requisite intent.
Thus, I consider that, as a matter of substance, the terms of his Honour’s charge accorded with what has been laid down in that regard by the High Court in Masciantonio[28] and Stingel[29]. The apparent gloss that was put on this requirement in R. v. Thorpe (No.2) could not, and did not, alter materially the test formulated by the High Court. The words in the standard test “to the extent that the accused did” mean, in context, “to the extent that the accused did as the Crown alleges”, namely, stabbing the deceased with the requisite intent.
[28]At 69.
[29]At 325.
In any event, even if his Honour erred in his direction on provocation as the applicant contends, no miscarriage of justice would have resulted from such error. More particularly, the applicant would not have thereby lost the opportunity of having the jury return a verdict of manslaughter. It can be assumed that the jury would have appreciated that, before they could consider the question of provocation, they would have had to have concluded that the applicant stabbed the deceased with the requisite intent and not in self-defence. In order to reach that conclusion, they would have had to have rejected the applicant’s claim that it was the deceased, and not he, who was armed with the knife. In those circumstances, there was no realistic possibility that the jury would have concluded in those circumstances that the applicant killed the deceased while under the influence of provocation. And as I have already mentioned, the applicant’s trial counsel saw no error in, or injustice flowing from, his Honour’s charge given that he took no exception to it.
Consequently, I would also reject this proposed ground. In the circumstances, there is no need to consider proposed ground 4, which alleged that the aggregate of the above alleged errors resulted in a miscarriage of justice.
In light of these conclusions, it would be inappropriate to grant the applicant the leave sought to substitute the above proposed grounds for that contained in his filed Notice that related to his conviction and which was not pressed. It follows that I would dismiss the applicant’s application for leave to appeal against conviction.
Application for leave to appeal against sentence
I now turn to consider the applicant’s arguments in relation to the two grounds on which he sought to rely in support of his application for leave to appeal against sentence. It was the applicant’s case under these grounds that, first, his Honour erred in treating the presence of the deceased’s children at the scene of the stabbing as an aggravating factor and secondly, that, in any event, the sentence is manifestly excessive.
Under cover of the first ground, Mr Kassimatis highlighted that it was the deceased who had sought out the applicant and confronted him in a state of anger, followed him when the applicant sought to walk away and then pushed him to the ground. Counsel also pointed to the fact that the deceased’s children were in the back seat of their parents’ car and did not leave the vehicle and that there was no evidence that the applicant even knew that they were in the vicinity. On any view, said counsel, there was insufficient evidence to justify an inference beyond reasonable doubt that the applicant knew of the children’s presence. Thus, it was claimed, it was not open to his Honour to aggravate the applicant’s offending by reason of circumstances outside his knowledge and control. Counsel submitted that such error vitiated the sentences imposed.
Under ground 2, counsel argued that, accepting the history and environment in which the offence was committed, and the judge’s acceptance that it had not been premeditated, the sentences imposed are manifestly excessive.
But, as Mr Elston for the respondent pointed out, the killing here was a very serious example of the offence of murder. It was committed in the context of a lengthy period of animus that flowed from the applicant to his brothers, and visa versa, and after the applicant had threatened on a number of occasions to kill the deceased. Moreover, it was plain that, at the time of the killing the applicant’s wife and children were present, the wife being outside the car with the deceased while the children remained in the vehicle. The car was parked adjacent to where the killing took place in an area where there was adequate lighting. In the circumstances, it was open to his Honour to conclude to the requisite standard of proof that the applicant was aware that the deceased was travelling with his family and that his children were in the vicinity.
The other aggravating features of the crime included the devastating effect that the killing had on the widow and children of the deceased as well as his parents, as the victim impact statements make obvious. The offence is the most serious in the criminal calendar and is concerned to uphold the sanctity of life. There are few mitigating factors applicable here and, to the extent that they exist, they have been taken into consideration by his Honour in his sentencing disposition as the sentencing remarks make plain.
Thus, I consider that the applicant has not made out any specific sentencing error and the sentence is within the range of sentences reasonably available to his Honour given the brutal nature of the crime.
I would therefore dismiss the application for leave to appeal against sentence.
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