R v Georgos Georgatsoulis Nos. SCCRM 94/118 and SCCRM 94/150 Judgment No. 4580 Number of Pages 13 Criminal Law and Procedure Evidence (1994) 62 Sasr 351

[1994] SASC 4580

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL KING CJ(1), MOHR(2) AND NYLAND(3) JJ

CWDS
Criminal law and procedure - particular offences - Murder - Provocation - objective test - summing up - whether relevance of personal characteristics of accused sufficiently explained to jury - accused's subjective perception of gravity of of fence irrelevant for objective test - intoxication irrelevant for objective test. Stingel v R (1990) 171 CLR 312 and R v Romano (1984) 36 SASR 283, applied. R v Fry (1992) 58 SASR 424 at p.440, discussed.

Evidence - Testimony on murder case of witnesses as to deceased's statements indicating her state of mind in relation to accused's attentions to her, not inadmissible hearsay - deceased's state of mind relevant as indicating nature of relationship with accused.

Criminal law and procedure - jurisdiction, practice and procedure - Summing up - reference to jury's acceptance or non-acceptance of accused's evidence permissible if onus of proof properly explained elsewhere - reference to deceased not being alive to give her version of events permissible. Blatch v Archer (1774) 1 Cowp 64; 98 ER 969, applied.

HRNG ADELAIDE, 19, 22 April, 25 May 1994 #DATE 9:6:1994

Counsel for appellant:     Mrs M E Shaw

Solicitors for appellant:    Zacharoyannis Luppino and Eckermann

Counsel for respondent:     Mr P J L Rofe QC

Solicitors for respondent: DPP (SA)

ORDER
Appeal dismissed.

JUDGE1 KING CJ The appellant was tried by judge and jury in the Supreme Court on an information containing three counts. The first count charged that on the 8th April 1993 he murdered Lisa Mazzone. The second count charged attempted murder of Luigi Stillitano. The third count was an alternative to the second count and charged wounding Stillitano with intent to do grievous bodily harm. The appellant was found guilty on the first and third counts and not guilty on the second count. He has appealed to this Court against his conviction on the murder count.

2. The deceased was a 24 year old unmarried woman who lived with her fiance. The appellant is an unmarried man who was aged 50 years at the time of the alleged crimes. He was born in Greece and came to this country in 1965. His command of the English language was limited. The appellant and the deceased worked together as kitchenhands and undertook related duties in a food establishment known as a diner. They had worked together there for several months. The appellant became infatuated with the deceased and began to pay her attentions. He had flowers delivered to her from time to time and at times touched her in a familiar way. The deceased's state of mind towards the appellant, as disclosed by her words and actions in his absence, was one of disinterest amounting to disdain.

3. On the day of the tragedy the appellant and the deceased had a meal break about 3 o'clock in the afternoon. They took a meal together at a nearby restaurant. A quarrel developed during the meal and voices were raised. The deceased left the appellant's table and walked out of the restaurant. The appellant said to a man who worked at the restaurant: "See what women are. They are whores they are whores. Well she is not going to get too far. I am going to fuck her." The appellant left the restaurant and went to a nearby florist from whom he ordered flowers to be delivered to the deceased between 4.30 pm and 5.00 pm that afternoon. He then returned to the diner. The appellant had had some drinks during the day and when he returned to the diner he drank some beer. The deceased was working in the kitchen. The appellant began preparing vegetables and held a knife for that purpose. A quarrel broke out between the deceased and the appellant during which voices were raised. The appellant thereupon inflicted stab wounds upon the deceased with the knife which he was holding. Luigi Stillitano, a young man who also worked at the establishment, came to intervene. The appellant thereupon stabbed him twice and chased him out of the kitchen. The deceased was at this time lying on the floor and bleeding from her wounds. The appellant returned to the kitchen and inflicted further stab wounds upon her. The police then arrived. When the police arrived, the appellant was bending over the deceased saying "You silly bitch." The deceased died that night on the operating table from the multiple wounds which had been inflicted.

4. The appellant gave evidence of the relationship which he claimed to have existed between him and the deceased. He agreed that he was infatuated with her. He was a 50 year old bachelor who had not previously had a relationship with a woman. He said that he gave the deceased substantial sums of money at her request. On the first such occasion the amount was $50. There followed a sum of $300 and other amounts. On one occasion he visited the Casino with her. She sustained losses and he gave her on that occasion a total of $400. He mentioned other amounts of $200, $100, and $50. The appellant claimed that the deceased rewarded him for these gifts with kisses on the cheek. She repeatedly told him that she would visit him at his home but she did not do so. He would prepare for her arrival, on one occasion with an expensive feast. But on each occasion she disappointed him. For her birthday on January 16th 1993, he made a gift of quite expensive lingerie and she provided him with details of her body size for that purpose. She promised him that he could visit her at her home when her fiance was away and gave him a slip of paper with her address written on it. In January he went to her home at 11 pm in accordance with a previous arrangement. He took expensive seafood and drink. When he arrived her fiance was at home and the three of them consumed some of the food and drink. The fiance gave evidence that the appellant was drunk on that occasion but the appellant denied that. The appellant, according to his evidence, bought TAB tickets at his own expense for the deceased and on one occasion she won a substantial sum of money.

5. The appellant gave evidence that on the day before the tragedy, the deceased promised to come to his home at 11 or 12 o'clock that night. He bathed and groomed himself and waited for her to arrive. He waited until 1.30 or 2 o'clock in the morning but she did not arrive. The following day, the 8th April, was the Thursday before Good Friday. The appellant brought Easter eggs to work and had some drinks during the day. He bought some Kahlua and milk for the deceased. The appellant and the deceased went to a nearby restaurant for their meal break about 3 pm. At the table the deceased accused the appellant of telling her lies by saying, in refusing her request for money on the previous Tuesday, that he had no money to give her. According to the appellant she had seen him with money which belonged to his employer. The deceased became upset and threatened to leave the restaurant. The appellant begged her not to leave as he would be embarrassed in front of Greek people in the restaurant. She left nevertheless and he also left after making the remark to which I have previously referred to a man working in the restaurant. He then went to the florist and spent $25 on the flowers to be delivered to the deceased. He returned to the diner.

6. The appellant gave a detailed account of what occurred prior to the stabbing. He said that after buying the deceased a drink, he reproached her for embarrassing him before the Greek customers in the restaurant. She responded by saying "I don't give a fuck about your friends. I don't give a fuck about the people who work there." The deceased began to scream and yell at him. The appellant was holding a knife which he had been using to prepare carrots and he banged it on the table in anger. There was a heated scene during which the deceased demanded to know whether the appellant was threatening her. She repeatedly dared him to use the knife and at some stage pushed him. She finally said "You can't. You can't do it. Come on you do it. You can't do it because I know that you love me and I love you." The last mentioned expression was used in a mocking tone. The appellant responded "For a long time no, you really make fun of me, you've told me enough lies." He said that he then lost control of himself and stabbed her. He claimed to have no recollection of having stabbed her more than once. He said that Stillitano came at him and that he stabbed Stillitano to defend himself. He agreed that he returned to the deceased who was on the ground and said that he had no recollection of stabbing her again. He gave evidence that he said to the deceased "Do you know now how much I love you? Do you believe it now that I have slaughtered you?"

7. The defence case was one of provocation. The primary argument on the appeal was that the learned trial judge failed to direct the jury directly or adequately as to the objective aspect of the test of provocation.

8. The law relating to provocation was examined by the High Court in Stingel v The Queen (1990) 171 CLR 312. The Court was considering the provisions of s.160 of the Criminal Code of Tasmania and in particular the words "of such a nature as to be sufficient to deprive an ordinary person of the power of self-control". The Court pointed out, however, at page 327 that, "The function of the ordinary person of s.160 is the same as that of the ordinary person of the common law of provocation". The discussion in the judgment of the law of provocation is applicable to the common law. The Court made a clear distinction between two tasks involved in applying the objective test. The first task is to assess the gravity of the insult or affront to the particular accused. The second task is to determine whether the insult or affront of that degree of gravity to the particular accused might be sufficient to deprive an ordinary person of the power of self-control. As to the task of assessing the degree of the gravity of the insult or affront to the particular accused, the Court said at p.326:
    "Even more important, the content and extent of the
    provocative conduct must be assessed from the viewpoint
    of the particular accused. Were it otherwise, it would
    be quite impossible to identify the gravity of the
    particular provocation. In that regard, none of the
    attributes or characteristics of a particular accused
    will be necessarily irrelevant to an assessment of the
    content and extent of the provocation involved in the
    relevant conduct. For example, any one or more of the
    accused's age, sex, race, physical features, personal
    attributes, personal relationships and past history may
    be relevant to an objective assessment of the gravity of
    a particular wrongful act or insult. Indeed, even
    mental instability or weakness of an accused could, in
    some circumstances, itself be a relevant consideration
    to be taken into account in the determination of the
    content and implications of particular conduct. For
    example, it may be of critical importance to an
    assessment of the gravity of the last of a series of
    repeated insults suggesting that the person to whom they
    are addressed is 'mad' to know that that person has, and
    understands that he has, a history of mental illness.
    As Wilson J commented in Hill (1986) 1 SCR, at pp.
    346-347; (1986) 25 CCC (3d), at p.347, the 'objective
    standard and its underlying principles of equality and
    individual responsibility are not ... undermined when
    such factors are taken into account only for the purpose
    of putting the provocative insult into context.'"

9. As to the second task, the Court said at p.327:
    "While personal characteristics or attributes of the
    particular accused may be taken into account for the
    purpose of understanding the implications and assessing
    the gravity of the wrongful act or insult, the ultimate
    question posed by the threshold objective test ...
    relates to the possible effect of the wrongful act or
    insult, so understood and assessed, upon the power of
    self-control of a truly hypothetical 'ordinary person'.
    Subject to a qualification in relation to age (see
    below), the extent of the power of self-control of that
    hypothetical ordinary person is unaffected by the
    personal characteristics or attributes of the particular
    accused." The function of the ordinary person in the
    common law test is: "to provide an objective uniform
    standard of the minimum powers of self-control which
    must be observed before one enters the area in which
    provocation can reduce what would otherwise be murder to
    manslaughter." (p.327)

10. The Director of Public Prosecutions, Mr Rofe QC, asked the Court to clarify the bearing of Stingel upon the judgment of this Court in R v Romano
(1984) 36 SASR 283. He considered that this clarification was necessary because of what he believed to be a misapprehension in some quarters as to the effect of the statement in a judgment of White ACJ with which the other members of the bench agreed in R v Fry (1992) 58 SASR 424 at p.440:
    "Age is the only qualifying attribute in that aspect of
    the objective test which relates to self-control. Cases
like R v Dutton (1979) 21 SASR 356 and R v Romano (1984)
36 SASR 283 must be taken to be overruled insofar as
    they include factors other than age on this question of
    objective self-control."

11. In R v Romano at p.289 I said:
    "It follows from what I have said that I am of opinion
    that the objective test as to provocation, while it
    endows the ordinary person with all the characteristics
    of the accused person for the purpose of assessing the
    gravity of the provocation to him of the words or
    conduct of the deceased, requires the same powers of
    self-control from all, subject only to the qualification
    as to age established by Camplin. Unusual excitability
    and pugnacity, whether due to a temporary factor such as
    intoxication ... or to the normal temperament of the
    accused ... are therefore to be excluded from
    consideration ... ".

12. It seems to me that that expression of the law is identical with that laid down by the High Court in Stingel and could not have been what was thought in Fry to have been overruled. Perhaps the judges in Fry had in mind a passage in the judgment of Cox J in Romano at p.293, concurred with by Legoe J at p.292, which expresses the notion of the ordinary person in somewhat different terms. I point out, however, that in R v Fricker (1986) 42 SASR 436, the Court of Criminal Appeal applied my formulation of the test in Romano without any apparent thought that it could be inconsistent with the majority view in Romano. Be that as it may, as the Director of Public Prosecutions has sought clarification, I state my view that the formulation of the test in my judgment in Romano is entirely consistent with, and confirmed by, the judgment of the High Court in Stingel, and I adhere to what I said in Romano.

13. It is now necessary to consider the directions given by the learned trial judge on this topic. His Honor correctly directed the jury that for words or conduct to amount in law to provocation reducing a crime of murder to that of manslaughter, three conditions must be satisfied. His Honor formulated those conditions in the following words:
    "1. The acts or words must be done or said by the
    deceased to the accused or at least in his presence.
     ....
    2. The acts or words must have caused in the accused a
    sudden and temporary loss of self-control rendering the
    accused so subject to passion as to make him, for the
    moment, not master of his mind. ....
    3. The acts or words must be of such a character as
    might cause an ordinary person to lose his or her
    self-control to such an extent as to act as the accused
    acted."

14. As to the third condition, the objective test, His Honor directed the jury as follows:
    "The third consideration is whether the things said or
    done by Lisa Mazzone were of such a character as might
    cause an ordinary person to lose his or her
    self-control to such an extent as to act as Mr
    Georgatsoulis acted. Here you are no longer looking so
    much at him as opposed to an ordinary person of his age
    and his background. You look at a hypothetical person,
    if you like, of the age and of the sex of the accused.
    Not as Mr Jennings told you a man who is unduly quick to
    anger or to hate. Given the accused's cultural
    background you may allow in your hypothetical, ordinary
    man an attitude towards women which would not be
    ordinarily accepted by most people in the community.
    But it must be an ordinary man with normal powers of
    self-control. So that you take as your standard or
    ordinary person, as your hypothetical person, one with
    the general characteristics of the accused, himself.
    Such as his age, sex and outlook on life including
    outlook towards the opposite sex to the extent that
    those matters might have affected the conduct of the
    ordinary person in the circumstances in which the
    accused found himself on that day. But you exclude any
    extraordinary excitability or tendency to violence which
    you might think that this accused has and must exclude
    also any question of liquor. You look at an ordinary
    person, unaffected by liquor, but with the essential
    characteristics of the accused other than those which I
    have indicated should be excluded. You then put that
    ordinary person in the context in which the accused
    found himself when he stood up in the kitchen of the
    diner that day. Allow for the background of the things
    that had happened between those two people during the
    two or three months they had known each other and ask
    yourself the question whether it is reasonably possible
    that an ordinary person of that kind in that situation
    and with that background would have reacted by losing
    their self-control to the extent that the accused did.
    That is, by doing what the accused did. Or could
    possibly have reacted in that way."

15. His Honor subsequently directed the jury that they could take the liquor which the appellant had consumed into account on the topic of whether the appellant in fact suffered a loss of self-control but that the liquor factor must be excluded in measuring the appellant's conduct against the reactions of an ordinary person. He said, "You look at an ordinary sober person." During the course of its deliberations, the jury returned to Court with some questions. At one stage a juror said: "Sorry, I'm still a bit confused; do we consider all the months before the day as provocation?"

16. His Honor replied:
    "Only as background. The provocation strictly which
    must be addressed is what happened in the kitchen on
    that day, but in assessing the three points that I have
    made you are entitled to look at the background; the
    relationship between these two people. It is important
    from the accused's case that you do, because you heard
    Mr Kourakis explain that what happened that day was just
    the tinderbox at the end of a long series of things
    happening between them which had an effect on the mind
    of the accused, but they are background. The central
    focus of what you are looking at is whether a sober,
    ordinary person of the general characteristics of the
    accused, but excluding any excessive characteristics,
    could possibly react in such a way, multiple stabbing of
    the kind that you have been told about in this case."

17. The jury returned later and asked to have the law's definition of an ordinary person. His Honor then gave a further explanation:
    "Who is an ordinary person. It is a hypothetical person
    which the law asks you to bear in mind only for the
    purposes of this third consideration to do with
    provocation. I put it to you yesterday that it was some

    sort of yardstick, because the doctrine of provocation
    does have its limits and we try to define the limit by
    saying that even if you are satisfied that the accused
    has had a sudden and temporary loss of self-control, the
    deed won't be excused by reference to the concept of
    provocation unless an ordinary person, as defined,
    standing in his shoes, at the time, would have lost, or
    could possibly have lost their self-control, and in a
    way and to an extent that they would have been provoked
    into doing what the accused did. That ordinary person,
    as I say, a hypothetical person, is one from whom we
    exclude any excessive features that might appear in the
    character or make up of the accused. The ordinary
    person cannot be one who is prone to over excitability,
    or prone to excessive violence. If the accused has any
    of those attributes you rule them out when you create
    your hypothetical person, so it has got to be a person
    with normal responses, not extreme or exaggerated
    responses, such as an over tendency to violence, or
    excitability, and it's got to be a person with ordinary
    powers of self-control. It has to be though somebody of
    the age of the accused, and their general make up. Not
    the excessive or exaggerated features they may have, but
    the age and the sex. It must be a man. We endow that
    hypothetical character also with the background which
    has been experienced. We put them down in the full
    setting. We put that hypothetical person down in the
    full setting. We allow for the background. We allow
    for what happened immediately. So the context of it is,
    if you like, the same, so the question then becomes
    whether the - I used the expression reasonable man,
    ordinary man is really what I wanted to say - the
    hypothetical ordinary man, of about the age of the
    accused and about his sex, with his cultural background.
    You have heard me say it, I suppose we should allow for
    perhaps a different attitude towards women for many
    people in the community because of a cultural
    background, but not with any of the excessive features
    that might be thought to apply to the accused. If you
    saw it that way, not over excitable, not prone to
    violence, and somebody with ordinary powers of
    self-control and, given the background, someone who has
    experienced both the background and the context going
    back over a few months, and who has experienced the
    immediate situation in which it all flared up, would
    such an ordinary person, or could such an ordinary
    person possibly react in the way that the accused
    reacted? That's what you have got to ask yourselves, and
    in reaching that view the only one thing I haven't
    mentioned yet, which I mention again: He has got to be
    sober. The ordinary man has to be a sober man and you
    exclude any possible effects of alcohol."

18. I think that it must be said that His Honor's method of dealing with the concept of the ordinary person fell considerably short of perfection. He did not expressly make the distinction between the assessment of the gravity of the insult or affront with respect to which the accused's personal characteristics must be taken into account, and the determination of whether the accused's reaction to the insult or affront of that degree of gravity, conformed to the minimum standard of self-control expected of ordinary persons in the community, as to which the personal characteristics of the accused are irrelevant. In his definitions of the ordinary person, His Honor included the personal characteristics of a particular accused, excepting only unusual excitability or pugnacity, but stressed that he must be sober and have ordinary powers of self-control.

19. Although I think that that method of explaining the concept of the ordinary person to a jury is far short of the ideal, I think that it conveyed the legal concept in a way which, having regard to the facts of the case, would have enabled the jury to grasp its true meaning.

20. In referring to the personal characteristics of the appellant for the purpose of this test, His Honor excluded unusual excitability and pugnacity correctly as those qualities relate only to powers of self-control and not the gravity of the insult to the individual. His emphasis on the point that the ordinary person must have ordinary powers of self-control, would have emphasised to the jury that the personal characteristics of the appellant were to be considered in relation to the assessment of the gravity of the insult. His Honor referred specifically to the appellant's personal history and cultural background and attitudes towards women arising out of those factors. The jury must have realised that the relevance of those factors was to the keenness with which the appellant would have felt the offence which was offered.

21. I have given careful consideration to the arguments advanced on behalf of the appellant's counsel, but I am unable to see that the failure to express the personal characteristics as being referable to the gravity of the insult or affront could have operated to the prejudice of the appellant. That they were so referable would have been obvious to the jury. If the jury were left with the impression that they also had some bearing upon the standard of self-control to be expected, that could only have resulted in the minds of the jury in a lowering of the minimum standard of self-control which would be expected if those personal characteristics were excluded and could therefore only have operated to the advantage of the appellant.

22. I have therefore reached the conclusion that the directions on this topic, although imperfect, sufficiently conveyed a correct understanding of the relevant law to the jury.

23. It was a further ground of appeal that there was a misdirection as to the bearing of what had occurred between the appellant and the deceased prior to the 8th April on the issue of provocation, in the passage which I have quoted above beginning "Only as background." I think that the passage was a correct direction in the circumstances of the case. The clear effect of the appellant's evidence was that he lost his self-control in consequence of what the deceased said to him in the kitchen immediately before the stabbing, considered against the background of his humiliation in the restaurant shortly before and the events which had occurred over the previous few months. I think that the learned judge correctly explained that to the jury.

24. The other grounds of appeal were "that the learned trial judge erred in failing to direct the jury that they ought to bear in mind the accused's own perception of the gravity of the provocation when asking whether an ordinary person might not have lost his self-control" and that he erred "in failing to direct the jury that the appellant's intoxication by alcohol might affect his perception of the extent or significance of the provocation." I think that these grounds of appeal are based upon an erroneous view of the law. Although, for the purpose of the objective test, the personal characteristics of an accused must be taken into account in assessing the gravity of the insult or affront, the test remains objective and the accused's subjective assessment of the gravity of the insult is irrelevant. The question is "How grave would be the insult or affront of the deceased's words or conduct to a person with the appellant's personal characteristics?" The test is objective although the person against whom the gravity of the insult or affront is measured is a person with the personal characteristics of the accused. The fact that the accused person, by reason of intoxication or from some other cause, might have subjectively regarded the insult or affront as graver than a person with his personal characteristics could be expected to do so, has no relevance from the point of view of the objective test.

25. There was a complaint that the learned trial judge failed to put the defence case adequately to the jury, but I am unable to see any justification for that submission.

26. There is a ground of appeal that "the learned trial judge erred in directing the jury inconsistently with the onus of proof when he said 'you must also carefully consider the accused's evidence which, if accepted, would indicate that Lisa was using him - for want of a better expression - taking money, giving him the odd kiss, playing on his feelings but giving him nothing in response.'" The argument in support of that ground was that the expression "if accepted" imported a reversal of the onus of proof. There is no substance in that argument. It is the function of the jury, as the fact-finder to assess the witnesses including the accused and to decide what weight they are prepared to place upon the evidence of those witnesses including the accused. They are entitled to accept or reject evidence as they see fit. There is no misdirection in referring to the acceptance or otherwise of the accused's evidence by the jury provided that the summing up as a whole makes it clear that the onus of proof is on the prosecution. That was made perfectly clear in His Honor's directions and the use of the expression "if accepted" was perfectly proper.

27. A further ground of appeal complained of the following passage in the summing up:
    "It is for you to decide whether you accept what the
    accused says that Lisa Mazzone said to him in the
    kitchen. Bearing in mind of course that she is not
    alive of course to give her account of it."

28. The criticism of this passage is largely answered by what has been said with respect to the previous ground of appeal. As to the reference to the deceased not being alive, it is a well established maxim that all evidence is to be weighed according to the power of one party to produce it and of the other to contradict it; Blatch v Archer (1774) 1 COWP 64 at 65; 98 ER 969 at 970. In weighing the evidence of the appellant, it was proper for the jury to have regard to the fact that the only other person who could have spoken of those events was now dead. The judge was right in directing the jury's attention to that fact. Objection was taken at trial to the admissibility of evidence given by Stillitano, the deceased's mother Dianne Mazzone and her fiance Mr Ressler, as to statements made to them by the deceased. The evidence was admitted over those objections. It was argued on the appeal that the evidence was wrongly admitted. Some of the statements deposed to were admitted to show the deceased's state of mind with respect to the appellant's attentions. It is true of course, as argued by counsel, that what was most significant was not her true state of mind but her words and actions in the presence of the appellant. Nevertheless I think that her true state of mind had relevance. It was part of the context in which the jury had to assess the weight to be attached to the appellant's evidence as to what occurred at the relevant times and the true nature of the relationship between him and the deceased. The evidence was not hearsay but was original evidence of contemporaneous statements made by the deceased indicating her then state of mind. That observation includes evidence given by Stillitano that the deceased told him that her fiance was going to Thailand and that he was not to tell "George or anyone else."

29. Stillitano gave evidence of a conversation with the appellant in which he told the appellant "not to touch Lisa any more or there'll be trouble." The appellant did not respond. That conversation was admissible evidence as part of the context in which the appellant's attitude to the deceased was to be assessed. Some evidence was given by Stillitano, however, as to what led to that conversation and that evidence was, in the strict sense, hearsay. He gave evidence that the deceased had told him that the appellant had touched her and that in consequence she had burnt her arm presumably on some cooking equipment. Although strictly hearsay, this evidence was really inconsequential. The appellant himself gave evidence that he touched the deceased from time to time in a familiar manner. There was no suggestion that the touching was indecent. As the conversation with the appellant was admissible, it was probably better from the appellant's point of view that the background to it be given in evidence lest the jury speculate that a more sinister type of touching was in question.

30. A further ground of appeal complains that "the learned judge erred in failing to direct the jury adequately as to the relevance of intoxication to the separate counts and that, in particular, in failing to explain to the jury the evidence relevant to that issue." In fact there was no evidence that the appellant was under the influence of liquor to any relevant degree. A blood sample was taken later that night. The expert evidence was that his blood alcohol level at the time of the incident was probably about 0.1 per cent and that at that level visible signs of intoxication were not to be expected. Those witnesses who observed him that day did not say that he was intoxicated and observed only minor signs that he had been drinking. The appellant referred to his drinking but did not claim to be under the influence of liquor. The learned judge, however, did give some directions as to the bearing of intoxication upon the issues in the case and I think that they were quite sufficient in the circumstances. Finally there was a complaint that the judge "failed to warn the jury against impermissible propensity reasoning as between the separate counts." The circumstances of this case did not require or warrant any such warning.

31. The only real issue in this case was provocation. There is little doubt that the appellant did in fact lose his self-control. His actions appear to indicate a total loss of control and that he was acting in a frenzy. The critical question for the jury was whether his actions measured up to the minimum standard of self-control to be expected from ordinary members of the community. Mr Rofe argued that no reasonable jury could come to that conclusion and that provocation could have been withdrawn from the jury. I could not accept that submission. I think that provocation was open to the jury. The issue whether the objective test had been met was, however, entirely a matter for the judgment of the jury. For reasons which I have given, I consider that they were adequately directed and that there is no other error vitiating the trial. The minor blemish in admitting the hearsay evidence of the touching could not have produced a miscarriage of justice and the proviso to s.353(1) of the Criminal Law Consolidation Act should therefore be applied. The other grounds of appeal have not been established.

32. In my opinion the appeal should be dismissed. There is also an appeal against sentence. The learned sentencing judge imposed the mandatory sentence of life imprisonment for murder. He imposed a sentence of imprisonment for 7 years for wounding with intent to be served, of course, concurrently with the life sentence. He fixed a non-parole period of twenty-five years. The sentences and the non-parole period were ordered to commence on the day on which the appellant was taken into custody namely the 8th April 1993.

33. Mrs Shaw argued that the non-parole period, having regard to the nature of the offences, was manifestly excessive.

34. As I have said above, I have no doubt that the crimes were not premeditated but were committed while the appellant was in a state approaching frenzy, having lost his self-control. The judge in passing sentence said: "I accept, however, that you had subjectively lost control of your feelings and that your earlier consumption of liquor had probably weakened your control over your emotions."

35. The appellant has no significant prior convictions. His infatuation for the deceased has brought ruin not only to her but also to him and it is impossible not to feel some degree of sympathy for him in his predicament. Nevertheless the crimes were savage crimes which have had terrible consequences.

36. The effect of the non-parole period is that the appellant will be released on parole at the expiration of 16 years and 8 months from the commencement of the non-parole period, that is to say when he is 67 years of age. It is undoubtedly a severe non-parole period having regard to his age and the unpremeditated and emotionally charged nature of the crimes. If the murder had stood alone, I would have given serious consideration to whether it called for the intervention of this Court. It cannot be overlooked, however, that the appellant must also be punished for the serious crime of wounding Stillitano with intent to do him grievous bodily harm. That was a grave crime in itself and fully justified the sentence of 7 years which the judge imposed. The gravity of that crime must also be reflected in the non-parole period.

37. In all the circumstances, I have reached the conclusion that there has been no error in the exercise of the sentencing discretion and that the appeal against sentence should be dismissed.

JUDGE2 MOHR J I agree.

JUDGE3 NYLAND J I agree.