R v Hajistassi - [2010] SASC 111

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HAJISTASSI
[2010] SASC 111
Judgment of The Court of Criminal Appeal
(The Honourable Justice White, The Honourable Justice David and The Honourable Justice Kourakis)
27 April 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - REVIEW OF EVIDENCE
CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS - STATEMENTS - VOLUNTARY STATEMENTS - FUNCTIONS OF JUDGE AND JURY - DIRECTIONS TO JURY
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - JURY'S MISCONDUCT, BIAS OR FAILURE TO APPLY MINDS TO REAL ISSUES
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - PROVOCATION - DIRECTIONS TO JURY
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
Appeal against conviction for murder - appellant killed the deceased by inflicting multiple stab wounds - issue of self-defence was raised at trial - evidence of the deceased's violent predisposition was adduced - whether the Judge's directions were sufficient to alert the jury as to the way that they could use this evidence in regard to the issue of self-defence - discussion of the principles concerning the admissibility of evidence regarding a victim's violent predispostion.
Whether the directions adequately alerted the jury that the evidence concerning self-defence should also be considered in relation to the accused's intention .
Held: the ways in which the jury could use the evidence regarding the deceased's violent predisposition were clear from the closing submissions of counsel and from the Judge's directions.
Evidence was adduced at trial of telephone calls containing both inculpatory and exculpatory statements as direct evidence from the accused- whether the jury should have been further directed that the exculpatory statements amounted to evidence of their truth.
Held: not necessary for the Judge to give a further direction as to the proper evidentiary use of the exculpatory statements.
Whether several matters regarding the composition and conduct of the jury accumulated to cause a miscarriage of justice - one juror was excused from service because it was communicated to the Court that he felt unable to cope with the task - another juror reported that she found some of the evidence distressing and a third asked for an advance warning of any graphic or potentially disturbing evidence - no evidence that the jury were distracted from their task by the reactions of the affected jurors to the evidence.
Held: the Judge did not err by failing to declare a mistrial when excusing the juror - the reactions of the two other jurors did not indicate that a miscarriage of justice had occurred.
Whether the Judge erred in failing to leave the defence of provocation to the jury - provocation was not a defence raised at trial.
Held: the evidence upon which the appellant relies was insufficient to produce, in the minds of a reasonable jury, a reasonable doubt that the killing did not occur in circumstances of provocation.
Whether the verdict is unreasonable and unsupportable by the evidence - appellant relies on a number of features which the appellant contends were inconsistent with guilt.
Held: the features of the evidence emphasised by the appellant were not inconsistent with a verdict of guilty - verdict not unreasonable or unsupportable by the evidence.
Appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 288A, s 353; Juries Act 1927 (SA) s 56; Supreme Court Criminal Rules 1996 r 12, referred to.
R v Hector [1953] VLR 543; Re Knowles [1984] VR 751; R v Collie (2005) 91 SASR 339; Masciantonio v The Queen (1995) 183 CLR 58, applied.
Re Ellem (No 1) (1995) 2 Qd R 542; R v PP [2002] VSC 523; R v Cakovski (2004) 149 A Crim R 21; R v Clothier (2001) 122 A Crim R 353; The Queen v Earley Unreported, Supreme Court of South Australia (King CJ, Millhouse and Olsson JJ) 6 April 1990 Jdgt No 2199; Van Den Hoek v The Queen (1986) 161 CLR 158; The Queen v R (1981) 28 SASR 321; Holmes v Director of Public Prosecutions [1946] AC 588; R v Fricker (1986) 42 SASR 436; R v Gardner (1989) 42 A Crim R 279; Libke v The Queen (2007) 230 CLR 559, considered.

R v HAJISTASSI
[2010] SASC 111
Court of Criminal Appeal: White, David and Kourakis JJ

WHITE AND DAVID JJ: The appellant was convicted by a jury of the murder of James Farquhar. He appeals by permission on five grounds.
In June 2008, the appellant was living in a house in Frederick Street, Welland with his mother (Ms Stone) and the deceased. Ms Stone and the deceased had been living in the house for about 12 months and during part of that period had an intimate relationship. However, as at June 2008, they were no longer in an intimate relationship but were simply living in the same house. The appellant had been staying in the house since about March 2008.
At one stage during the period of their intimate relationship, the deceased had struck Ms Stone. She reported the assault to the police and the deceased was arrested. The following day he made an apparent suicide attempt. After his recovery, the deceased returned to live in the house with Ms Stone but thereafter they shared the house without cohabiting.
On the night of 26 June 2008 the deceased was at a hotel drinking. During his absence, Ms Stone decided to cease living in the house and to move out on the following day. Ms Stone told the deceased of her intentions by text message and confirmed her intentions to him when he returned at about 10.30 pm. Some further intermittent conversation occurred between the deceased and Ms Stone, sometimes in the lounge of the house and sometimes in the yard where Ms Stone was smoking a cigarette. At one stage the deceased went to the kitchen and cut up some mettwurst or salami. He then moved to a seat in the lounge room and commenced eating it.
At about 11.30 pm, the appellant came out of the room in which he had been sleeping to go to the toilet. Ms Stone ushered him outside and told him that she would be leaving the house on the following day. She said that the appellant looked at her and said something like: “Look, you know, I don’t really want to hear it”. Ms Stone told the appellant that the deceased could be violent when he drank alcohol. The appellant asked Ms Stone if the deceased had ever hit her. She told him that he had, and referred to an earlier occasion when she had explained some injuries by saying that she had fallen over a puppy. The appellant then asked why she was the one moving out of the house, and Ms Stone responded by saying that it was easier that way. Ms Stone said that the appellant then shrugged and looked bewildered.
The appellant then went inside. Ms Stone stayed outside to have another cigarette. However, very shortly after the appellant had gone inside, Ms Stone said that she heard the deceased “basically going off his nut in a rage”. She heard him scream “I’m sick of this fucking shit” and then either “fuck off you cunt” or “you fucking cunt”. Ms Stone then ran next door to call the police.
After making the call, she saw the appellant coming down the driveway of their own home. He was holding a rug to his head and was moaning and crying. The appellant said to her: “He attacked me and I think I’ve killed him”. The appellant had a laceration to the right side of his forehead and was using the rug to cover the wound.
An ambulance arrived. Initially the ambulance officers treated the appellant who was then in the neighbour’s house. They were then directed next door. They found the deceased already dead, lying on the floor of a sunroom at the very back of the house. The trail of blood suggested that he had moved from the lounge room (where it appeared that the altercation had occurred) to the kitchen and then to the sunroom where he had died.
The appellant was taken by ambulance to the Royal Adelaide Hospital. During the course of the journey, the ambulance officer, Ms Copley, asked him what had happened. She said that he replied: “I asked him why he was hitting my mum. He started attacking me. I didn’t know what to do. I had a knife and ….”. She said that the appellant then started to cry.
A pathologist gave evidence that the deceased had sustained five stab wounds. One wound was to the left chest just below the nipple. Another was on the left-hand side of the deceased’s back, about half way between the belt line and the shoulder. A third wound, which was adjacent to the second wound, had passed through the lung and had damaged the heart. This was the fatal wound. There was a fourth wound at the top left-hand side of the back and a fifth wound to the neck, just to the left of centre. The path of that wound went towards the front of the deceased’s body. The prosecution alleged that it could be inferred from the trajectory of the fifth wound that the deceased was either face down when it was inflicted, or that the wound was inflicted from behind. The pathologist could not give any opinion as to the order in which the wounds had been inflicted.
The appellant did not give evidence at his trial. However, the prosecution led evidence of eight telephone calls made by him to relatives and friends while he was in the Adelaide Remand Centre in the period 1 July to 12 July 2008. In accordance with standard Remand Centre procedures, these calls were both monitored and recorded. The fact of the monitoring and recording was made known to both the appellant and the recipient of his calls at the time. Tapes of the conversations were tendered at the trial. The appellant told several of the recipients of his calls that on the night of 26 June he had asked the deceased why he had hit his mother and that the deceased had then got up from his seated position and attacked him. He described the deceased holding him in a kind of headlock and gouging his fingers into his eyes so badly that he thought he would lose an eye. During the course of the struggle he reached out for the knife and used that to stab the deceased. Even after he had inflicted the first stab wound, the deceased had continued to attack him and so he repeated the stabbing.
The prosecution case was that the appellant had attacked the deceased, prompted by his anger at having learnt that the deceased had previously assaulted Ms Stone. The prosecution contended that the appellant’s claim that he had had no choice but to act in self-defence was false, being something which he had raised in an attempt to exculpate himself.
At the end of the prosecution opening, defence counsel made an address to the jury under s 288A of the Criminal Law Consolidation Act 1935 (SA) (CLCA) identifying the principal issues for the jury’s consideration as whether the accused intented to kill or to inflict grievous bodily harm, and self-defence.
Self-Defence and the Deceased’s Previous History of Violent Behaviour
The appellant’s first submission on the appeal was that the Judge erred in failing to direct the jury as to the way in which evidence of what was said to be the deceased’s “propensity for violence” could be used in relation to the defence of self defence.
Principles Concerning the Admissibility of Evidence of a Violent Predisposition
In a case in which self-defence is in issue, evidence may be admitted of the deceased’s previous record or history of violence, and of the relationship between the deceased and the accused or those who are close to the accused, such as family members.[1] Evidence of violent conduct may be led even though the accused, at the time of the alleged offences, had no knowledge of it. As was pointed out by the Full Court of the Supreme Court of Victoria in Re Knowles,[2] approving a passage from Wigmore[3]:
[When] a controversy arises whether the deceased was the aggressor, one’s persuasion will be more or less affected by the character of the deceased; it may throw much light on the probabilities of the deceased’s action …
[the] additional element of communication is unnecessary; for the question is what the deceased probably did, not what the defendant probably thought the deceased was going to do. The enquiry is one of objective occurrence, not of subjective belief.[4] [Emphasis in original]
The evidence may be relevant in at least two ways. If the accused knew of the deceased’s history or reputation for violence, the evidence is relevant to the assessment of who was the aggressor in the confrontation and to the assessment of the accused’s appreciation of the danger he or she faced. If the accused did not know of the deceased’s history or reputation, then the evidence may still be relevant to the jury’s assessment of who was the aggressor at the relevant time.[5] In that circumstance, as was pointed out in Re Knowles,[6] the additional element of communication is unnecessary for the question is “what the deceased probably did, not what the accused thought the deceased was going to do”.
[1]    R v Hector [1953] VLR 543; Re Knowles [1984] VR 751.
[2] [1984] VR 751 at 768. See also R v Ellem (No 1) (1995) 2 Qd R 542; R v PP [2002] VSC 523; R v Cakovski [2004] NSWCCA 280, (2004) 149 A Crim R 21.
[3]    Wigmore, J H, Evidence, 3^rd ed, Little Brown and Company, 1940 at 467, 470.
[4]    Re Knowles [1984] VR 761, 768.
[5]    Heydon J D, Cross on Evidence, 6^th Aust ed, Butterworths, 2000 at [19095].
[6]    Re Knowles [1984] VR 761, 768.
The principle of public policy which precludes the prosecution from adducing evidence of the disposition or propensity of an accused person to act in the way alleged has no application in relation to a person other than the accused.[7]
[7] Ibid.
The Evidence Concerning Previous Conduct of the Deceased
Ms Stone described various incidents of violence towards her by the deceased during the period in which they shared the house at Welland. On one occasion she was punched in the face by the deceased and lost consciousness. On regaining consciousness, she called the police and the deceased was arrested. The following day he made the apparent attempt at suicide to which we referred earlier. After his recovery, the deceased stayed with his brother, but after about one week moved back to share the house at Frederick Street, Welland with Ms Stone.
Their relationship was peaceful for a period, but Ms Stone described a later evening when, in the presence of his son, the deceased kicked her. Again the police were called. Ms Stone subsequently stayed away from the house for a short period.
Ms Stone said that the deceased would “fly off the handle” for no apparent reason, although sometimes this was apparently in frustration when something would go wrong with work he was carrying out in his shed.
Ms Stone referred in a general way to a number of occasions when the deceased had been verbally abusive towards her. This behaviour was apparently associated with the deceased’s consumption of alcohol. She said that she had spoken to him about his drinking and had warned him that she would not stay in the house if he continued to consume alcohol. The deceased did limit his alcohol consumption for a period. However, he had resumed drinking for a month or so prior to 26 June 2008. Ms Stone had told him that she was not prepared to continue living in the house if he continued drinking.
Ms Stone thought that the deceased was affected by alcohol when he came home at about 10.30 pm on 26 June 2008. She described him coming into the lounge room and squeezing her shoulders in a way which hurt. She told him that he was hurting her, and asked him to stop, which he did.
There was no evidence that the appellant had any knowledge of the deceased’s violence towards his mother, or of his violent outbursts prior to the evening of 26 June 2008. The evidence suggested that the contrary was the case. Ms Stone said that prior to that evening, she had not told the appellant of the deceased’s assaults upon her. In one of the recorded telephone conversations from the Remand Centre the appellant confirmed that his mother had not told him of the deceased’s violence towards her and continued: “I’ve never, ever seen that side of him. I actually thought he was a good bloke”.
Evidence was also led from the deceased’s brother. He had been informed of the incident in which the deceased had punched Ms Stone. He said, however, that he was not aware of any other incidents of violence by the deceased towards Ms Stone and said that the deceased was not generally short-tempered.
Consideration of the Submission Concerning Absence of Directions
The appellant submitted that not only had the Judge not directed the jury as to the proper use which could be made of Ms Stone’s evidence concerning the appellant’s violence towards her and his violent outbursts more generally, she had effectively suggested to the jury that this evidence should not colour or cloud their consideration of the issues in the trial. In this respect, the appellant referred to that part of the summing-up in which the Judge directed the jury to consider the evidence objectively and dispassionately, putting aside all emotions such as prejudice or sympathy. In the course of giving this direction, the Judge said:
Ladies and gentlemen, in the course of this trial [Ms Stone] gave evidence about some problems she had with [the deceased] which she suggested mainly related to [the deceased’s] drinking. She also described [the deceased] as having been violent to her in the past. Ladies and gentlemen, I mention these matters at this point in the discussion because, depending on your view of the evidence, it might be the case that you disapprove of some aspects of the behaviour of [the deceased]. On the other hand, you might disapprove of some aspects of the behaviour of the accused. It might be the case that you do not care for some of the language used by the accused in the telephone calls from the Adelaide Remand Centre.
The Judge then went on to remind the jury that a criminal court is not a court of morals and that they were not to allow their consideration of the issues in the case to be clouded or influenced by any disapproval they might have of the conduct of the deceased on other occasions or of the accused, or for that matter, of any of the other witnesses from whom they had heard.
The appellant submitted that an express direction should have been given to the jury to the effect that it could take the evidence concerning the deceased’s history into account when considering who was the instigator of the assault.
The appellant did not refer to any authority discussing the particular directions which should be given in relation to self-defence when the victim of the assault has a proven record or history of violence. Instead he relied on statements of general principle to the effect that juries should be assisted in applying the relevant legal principles to the circumstances of the particular case. Those principles do not require a judge to traverse every item of evidence in the summing-up. The extent to which it is necessary to do so depends upon a number of matters including the issues arising in the case, the importance of the evidence to the jury’s consideration of those issues, and the extent to which that importance is self-evident or has been made apparent to the jury during the course of the trial.
The jury in this case could hardly have been in any doubt about the relevance of the evidence concerning the deceased’s history of violence. They were told in the prosecution opening of the deceased’s assault on Ms Stone, of her continuing concerns about the deceased’s unpredictability, of her fear that there may be a repetition of violence, and of her concern about the effects which alcohol consumption appeared to have on the deceased. Ms Stone did give detailed evidence about those matters, both in chief and in cross-examination. The deceased’s violence was a significant topic in the defence cross-examination of Ms Stone.

In his summing-up, the prosecutor anticipated the submission which would be made by defence counsel about this evidence. He reminded the jury of the evidence given by Ms Stone and by the deceased’s brother and then continued:
All of that I suggest to portray [the deceased] as a violent, large, brutal man, capable of extreme force and capable of extreme violence. That no doubt was the reason you heard all of that evidence, to paint him in that light. It is very simple, I suggest. If you paint him in that violent light, the suggestion then becomes “well, there you are. A violent, brutal, aggressive man, a weightlifter, a powerful person. Therefore, I had to defend myself. Therefore, my actions were not unlawful. Therefore, self-defence operates”.
This submission starkly pointed out the use to which the evidence concerning the deceased’s history of violence could be put.
The issue was also highlighted for the jury by defence counsel’s submissions. Counsel invited the jury to consider whether the evidence disclosed the deceased to be a “violent, alcoholic, unpredictable bully” or “just a passive individual, just a meek and mild man who was attacked”. He reminded the jury of the deceased’s history and contrasted the smaller stature and physique of the appellant with the larger stature of the deceased. Counsel described the deceased’s history of violence as important evidence to be considered by the jury.
In these circumstances, we consider the jury would have well understood, without any specific direction from the Judge, the significance of the evidence of the deceased’s history to their consideration of the issue of self-defence.
In any event, the Judge did remind the jury of Ms Stone’s evidence about “the problems” she had with the deceased and reminded them that Ms Stone related those problems to his consumption of alcohol. The Judge then immediately reminded the jury of the submission by the counsel for the appellant at the trial that the deceased may well have reacted to the appellant on the night of 26 June 2008 in much the same way as he had towards the appellant’s mother on the earlier occasion and so had attacked the appellant “in an unpredictable rage”. Next, the Judge reminded the jury of Ms Stone’s assessment of the deceased’s intoxication and of her evidence that she had told the appellant that the deceased could be violent when he drinks.
Later, the Judge reminded the jury of the appellant’s trial counsel’s submission that it was the deceased who was the aggressor in the conflict. The Judge said:
Mr Tremaine, however, put to you that [the deceased] was the aggressor in this conflict. By reference to the evidence of [Ms] Stone and [the deceased’s brother], he described the [deceased] as a violent alcoholic and unpredictable bully. He suggested that after [the deceased] had been subjected to the text messages from [Ms] Stone earlier that evening, the accused complaining about [the deceased’s] treatment of his mother was, in effect, the final straw and that the [deceased] had snapped and got into a rage and had attacked the accused, much as had happened with the earlier incident with [Ms] Stone. He suggested that the words which [Ms] Stone heard uttered by the [deceased] supported the attack starting that way; that is, being initiated by [the deceased]. [Emphasis added]
In our opinion, these directions were sufficient to remind the jury of the deceased’s history of violence and to alert the jury to the way in which that evidence may be relevant to their assessment of who was the aggressor in the altercation. The Judge did not have to give any further direction because it must have been obvious to the jury, from the course of the evidence and from counsels’ closing addresses, how the evidence was relevant.
When seen in the context of the directions as a whole, the jury would not, in our opinion, have understood the Judge’s direction that they not allow their views of the morality of the deceased’s prior conduct to cloud their assessment as a direction that the evidence of the deceased’s history should be ignored. The jury would have understood the direction for what it was, ie, a direction to focus on the issues, and not to be influenced by the wrongfulness of the deceased’s previous conduct towards Ms Stone.
The Directions Concerning Self-defence and Intention
The appellant contended that the way in which the Judge directed the jury concerning self-defence had the effect that the jury would not have understood that the evidence concerning self-defence should also be considered in relation to the issue of whether he had an intention to kill or to inflict grievous bodily harm upon the deceased.
The Judge directed the jury in a conventional manner as to the elements of the offence about which they must be satisfied before returning a verdict of guilty: ie, that an act or acts of the appellant caused the deceased’s death; that the act or acts which caused the death were conscious and voluntary; that the act or acts were done with the intention to kill the deceased or to cause him grievous bodily harm; and that the killing of the deceased (if the jury was satisfied that that is what the appellant had done) was unlawful. In the circumstances of this case, the fourth element meant that the jury had to be able to exclude as a reasonable possibility that the appellant had acted in self-defence. The Judge gave detailed and appropriate directions concerning self-defence.
The appellant’s present submission focussed on a statement by the Judge that she thought:
it fair to say that the significant issue in this case is that of self-defence, and that is an issue which arises in the context of the fourth element to be proved by the Prosecution. [Emphasis added]
The appellant submitted that the effect of the emphasised words in this passage was to “withdraw the issue of self-defence from the question of intention”. The submission was that the jury should have been told that the evidence which was relevant to the issue of self-defence was also relevant when the jury considered the appellant’s intention.
In our opinion, this submission should not be upheld.
The Judge had told the jury at the outset of her directions that it was their function to consider all the evidence, whether or not that evidence was mentioned by her in the summing-up. When directing the jury about the element of intention, the Judge told the jury that “the surrounding circumstances are, of course, relevant matters for you to take into account in deciding whether or not the accused did in fact have the requisite intention when he stabbed [the deceased]”.
In addition, the Judge specifically referred to the evidence that the appellant had been acting in self‑defence as part of her directions concerning the element of intention. The Judge said:
On the defence case, the evidence falls far short of establishing that [the] accused had any such intention. On the defence case, the accused simply reacted to an aggressive attack by [the deceased].
The Judge then followed this direction with direct quotations of statements made by the appellant in two of the monitored telephone calls made from the Remand Centre. In the first, the appellant told the recipient of his call: “I didn’t mean to kill [the deceased]”, and in the second he said “Well, I didn’t expect to kill – kill him, man, I was just trying to get him off me, you know what I mean”. By these directions, the Judge specifically brought to the jury’s attention that the evidence concerning self-defence was relevant to their consideration of whether the appellant had the requisite intention. In these circumstances, it cannot be said that the Judge “withdrew the issue of self-defence from the question of intention”.
It is pertinent to note that the Judge also directed the jury that the evidence concerning self-defence was relevant to their consideration of the second element of the offence, ie, whether the appellant’s action had been conscious and voluntary. The Judge said:
On the defence case, the accused acted as he did in response to an attack by [the deceased]. You will remember that in the phone calls from the Remand Centre the accused said on more than one occasion that [the deceased] had him in a headlock and was trying to gouge his eye out.
The accused said he reached for a knife and tried to get [the deceased] off. The comments made by the accused about reaching for the knife and then stabbing [the deceased] is evidence, I suggest, which enables you to find that the accused acted deliberately when he stabbed [the deceased] and that would therefore satisfy this element although that is a matter for you.
The significance of this direction for present purposes is that it, like the direction concerning intention, would have confirmed to the jury that the evidence relating to self-defence was not to be in some way compartmentalised, and considered only in relation to the fourth element of the offence.
Use of the Appellant’s Out-of-Court Statements for Testimonial Purposes
During the course of argument, the Court granted the appellant permission to amend his Notice of Appeal by adding a ground complaining of the absence of a direction to the jury about the evidentiary effect of his out-of-court statements.
The appellant submitted that the Judge should have told the jury that the statements he made in the monitored telephones calls from the Remand Centre amounted to evidence of the truth of the matters he had asserted in those calls.[8] The gist of the statements was that the appellant admitted killing the deceased, but claimed that the killing had occurred in self-defence. The defence understandably relied at trial upon the content of those calls.
[8] A transcript of the monitored calls heard at trial is summarised in MFI P10.
There has been some debate in the past about the status of an out-of-court statement made by an accused, which includes both inculpatory and exculpatory material. Any statement implicating the accused is, of course, evidence as to its truth, but the use which can be made of exculpatory statements was at one time less clear. The issue was whether they were to be regarded only as material upon which a defence could be based, or whether they were to be regarded as evidence. In R v Collie[9] Vanstone J referred to this issue in the following passage:
I note in passing that the attribution of any evidentiary status to out-of-court statements made by a defendant as part of a “mixed statement” containing both admissions and exculpatory statements has never been free from controversy. In England a debate about the admissibility and use of the exculpatory parts of such statements raged over many decades. The matter seemed to have been settled in R v Duncan (1981) 73 Cr App R 359, where Lord Lane CJ, speaking for the Court of Appeal, took the pragmatic view that the whole of such statement should be admitted and have evidentiary status (at least partly because it was too difficult, and unhelpful, to attempt to explain that the exculpatory parts were something less than evidence of those assertions), but that the jury could be alerted to the differing weight of such statements. However, a line of subsequent cases favoured what came to be called the “purist view”: R v Sparrow [1973] 1 WLR 488; R v Pearce (1979) 69 Cr App R 365; Leung Kam-Kwok v The Queen (1984) 81 Cr App R 83 (PC). Then in R v Sharp [1988] 1 WLR 7 the House of Lords reviewed the question and approved of the position as established in Duncan. Yet again, in 1995 the House of Lords was asked to review the matter on the ground that the law was said to be unduly favourable to defendants who did not testify. The decision in Duncan was again approved: R v Aziz [1996] 1 AC 41. Reference was again made to the varying weight that might be attached to the different parts of such a mixed statement.
In South Australia the authority of the decisions in Duncan and Sharp was accepted in the judgment of Cox J, speaking for the Full Court, in Spence v Demasi (1988) 48 SASR 536. That line of decisions would also seem to be not inconsistent with Peacock v The King (1911) 13 CLR 619, in which the High Court discussed the appropriate direction to be given to juries as to their assessment of an unsworn statement made from the dock. Griffiths CJ held (at 640-641) that the jury should be instructed to take the statement as “prima facie as a possible version of the facts and consider it with the sworn evidence”. Barton J (at 646) found that it “must be conceded to have some evidentiary status”. O’Connor J agreed with both of those views. Certainly statements outside court not on oath could not have any status greater than that of an unsworn statement from the dock.
What flows from these decisions in terms of this case is that the statements made by the appellant as recorded by the listening device could amount to no more than a possible version of the facts unsupported by evidence …[10]
[9] (2005) 91 SASR 339.
[10] Ibid, 374-5, [189] – [191].
In Spence v Demasi Cox J (with whom White and Perry JJ agreed) thought it clear that the whole of the out-of-court statement relied upon by the prosecution, including the exculpatory portions, was to go before the jury and that it was for the jury to decide what parts, if any, they could act upon in reaching their verdict.[11]
[11] (1988) 48 SASR 538 at 540.
In our view, it is unnecessary in this case to consider the authorities in any more detail. On our understanding, Courts in this State do apply Spence v Dimasi. Further, the Judge in the present case did in any event, direct the jury in the way which was most favourable to the appellant, ie, by telling them that they should treat the out-of-court statements as evidence. This is evident in the following passages of the summing-up:
The assertion by the accused that he reached for the knife because Mr Farquhar was gouging his eye in the course of attacking him was mentioned by the accused on a number of occasions in the phone calls made by the accused from the Remand Centre and you will recall that those phone calls were played to you as part of the Prosecution case.
This is, of course, direct evidence from the accused as there is no dispute that he is one of the people speaking on the telephone. Two of those conversations took place on 1 July 2008 and the remainder on 2 July, 4 July, 5 July, 9 July, 11 July and 12 July respectively.
Both counsel referred to those phone calls in the course of their addresses and have made suggestions as to what you can infer from them. The recordings of those phone calls are in evidence before you as Exhibit P14. It is important evidence and the disc containing those calls is available for to you replay [sic]. (Emphasis added)
The Judge reminded the jury of the contents of some of the calls. In our view, no further direction was necessary. To have gone further and directed the jury that those phone calls were testimonial evidence equivalent to evidence on oath would have brought to the jury’s attention the fact that the “evidence” was not on oath and was not subject to cross-examination. That would only have emphasised the fact that the appellant had not given evidence. Such a direction could well have been detrimental to the appellant.
This ground of appeal is not made out.
Juror Considerations
The appellant raised three matters concerning the composition of the jury and of juror conduct which he submitted indicated that a miscarriage of justice had occurred.
The first was that the Judge permitted the trial to continue with 11 jurors after the discharge of one juror under s 56 (1) of the Juries Act 1927 (SA)[12] for reasons to which we will refer shortly. The second was the report of a juror to the Sheriff’s Officer that she had found the contents of a number of the telephone calls made by the appellant from the Remand Centre to be upsetting. The third was a request by another juror concerning the foreshadowed showing of video tape footage of the appellant taken in the early hours of 27 June 2008. The juror asked that the jury be informed in advance whether the video tape included any graphic depictions of the appellant’s injuries or of surgery so that they could be prepared for that evidence, rather than being taken by surprise. The appellant submitted that the juror’s report of her reaction to the telephone calls, and the separate request concerning the video tape footage brought into question the ability of those jurors to bring in an impartial verdict.
[12] Section 56 of the Juries Act 1927 (SA) provides:
(1)If during the course of a criminal trial the presiding judge is satisfied that, by reason of the ill health of a juror or a matter of special urgency or importance, a juror should be excused from further attendance, the judge may order that the juror be excused from further attendance during that trial and for such further period (if any) as the judge determines.
(2)If during the course of a criminal trial a juror dies or is excused under subsection (1), or fails to attend without lawful excuse, the trial will, subject to any contrary direction by the presiding judge, continue with the reduced number of jurors, provided that the number of jurors has not been reduced to less than 10.
The circumstances giving rise to the appellant’s submissions were detailed in the affidavit of the appellant’s trial counsel received on the appeal and in the report from the Judge provided under r 12 of the Supreme Court Criminal Rules 1996.
The appellant’s trial commenced on 7 July 2009. On the morning of 10 July 2009, the jury manager informed the Judge that the wife of the one of the jurors had informed him that her husband was ill, could not come to Court that morning and was not coping with the task of being a juror. The message was to the effect that the juror had been ill at home almost every night during the trial and did not wish to continue serving on the jury. After discussion of these matters with counsel, the Judge excused the juror and rejected an application by defence counsel for the declaration of a mistrial.
On the morning of 15 July 2009 (the 7^th day of the trial) the Sheriff’s Officer attending the jury informed the Judge of the report by a juror that she had found the content of the telephone calls made by the appellant from the Remand Centre to be upsetting. The Judge informed counsel in chambers of this report and asked them to be alert to the jury’s reaction in their references to those telephone calls.
Then, almost at the end of the evidence, the jury was shown video tape footage of the appellant on the night of 26 June 2008 and in the early hours of 27 June 2008. It was at that time that the attending Sherriff’s Officer reported the juror’s request to be informed in advance of any graphic depictions in the video tape. As it happened, although the jury was shown some video tape footage, it did not include video tape of the appellant at hospital.
The appellant argued that while the second and third incidents did not by themselves justify a mistrial they did, when added to the earlier decision to proceed with 11 jurors, have the cumulative effect that a miscarriage of justice had occurred. In particular, the appellant argued that, before deciding to proceed with 11 jurors, the Judge should have made an inquiry as to whether there was some form of communication between the excused juror and the balance of the jury which may have resulted in contamination. As we understand the argument, the fact that the excused juror was upset by the evidence to the point of illness may have been passed on to the balance of the jury and, thereby affected them in their deliberations, to the prejudice of the appellant.
Much of the appellant’s submissions on these topics were based on speculation, ie, inviting the Court to proceed on the basis of possible communications between the excused juror, on the one hand, and the remaining jurors, on the other. However, it is to be noted that the excused juror had not even attended Court on the day that he was excused, and it is also to be noted that there was no evidence or material justifying any suggestion that the rest of the jury was affected.

At the time the juror was discharged, the trial was well advanced, and 13 of the 17 witness for the prosecution had given evidence.
It is the very nature of murder trials that juries will be presented with distressing material. Often they will have had no, or very little, prior life experience to prepare themselves for the photographic evidence of fatal injuries which is placed before them. Occasionally juries will also find the nature of the verbal and physical relationships between those involved both surprising and worrying. It can be accepted that some jurors, faced with evidence of that nature, may, if left without direction, be so overwhelmed by the material that their capacity to decide the case by applying the criminal onus dispassionately to the evidence will be compromised. But juries are not left without assistance. The importance of an objective assessment of the evidence, the need to guard against sources of prejudice and the importance of the onus are all explained as a matter of course. Standard directions to that effect were given in this case.
Viewed objectively, the risk that the jury as a whole would be distracted by the distressing material presented in this case was reduced rather than exacerbated when the juror who had become unwell was excused. The request by a juror that the jury be forewarned about the evidence with which they were to be presented was a sensible and practical measure. Jurors who are forewarned of the nature of the material they are about to hear or view are less likely to be overwhelmed by its offensive nature.
The possibility that the remainder of the jury were distracted, by the reactions of some of their number to the evidence, or to possible evidence, to the extent that they did not deliberate in accordance with their duty and with the directions they were given is entirely speculative. There is, in our view, no more reason to apprehend a miscarriage in this case than in the many murder trails in which juries deal, in silence, with the graphic evidence which is placed before them.
In our view, there was no error in the Judge’s decision to proceed with 11 jurors. This was not a case in which one juror had obtained information concerning the trial from outside the courtroom which may have been communicated to the other jurors.
In our opinion, this ground of appeal is not made out.
The Failure to Leave Provocation to the Jury
After the evidence and before the final submissions, counsel for the appellant at trial submitted that the defence of provocation should be left to the jury. The Judge rejected that submission and refused to direct the jury on provocation, in particular, by directing that it was necessary for the prosecution to exclude as a reasonable possibility that the appellant had been acting under provocation.
The appellant contended that the failure to leave provocation to the jury was an error, with the effect that a significant miscarriage has occurred.
The appellant accepted that the trial was conducted on the basis that his intention when stabbing the deceased, and self-defence, were the principal issues for the jury’s consideration. He also accepted that there was no positive assertion by him in the Remand Centre telephone calls to the effect that he had acted under provocation.
The appellant submits, nevertheless, that if there is material upon which a jury acting reasonably could enter a verdict of manslaughter on the basis of provocation, it is the duty of a trial Judge to put that issue to the jury, even if it was not the defence presented at trial.
There is ample authority to support that proposition.[13] In R v Clothier,[14] Mullighan J referred to a passage in the reasons of King CJ in the unreported judgment of The Queen v Earley[15]:
It follows from the above authoritative statements of the law that if on the evidence it was reasonably open to the jury to bring in a verdict of manslaughter on the basis of provocation, that issue ought to have been left to the jury notwithstanding that the appellant did not give evidence of loss of self-control and notwithstanding that the issue was not raised by the defence and that the judge was not asked to direct the jury on provocation. The test is whether there is ‘evidentiary material which, if accepted, is capable of producing in the minds of a reasonable jury a reasonable doubt as to whether the killing of the deceased by the accused did not occur in consequence of a sudden and temporary loss of self-control brought about by words or conduct of the deceased and as to whether those words or conduct might not have caused an ordinary person to los his self-control and to do what the accused did’, The Queen v Romano (1984) 36 SASR 283 at 286. The question whether a defence should be left to the jury is to be determined upon the version of the facts most favourable to the accused, The Queen v R (1981) 28 SASR 321 at 325. [16]
[13] Van Den Hoek v The Queen (1986) 161 CLR 158, 161.
[14] [2001] SASC 9; (2001) 122 A Crim R 353.
[15] Unreported, Supreme Court of South Australia, King CJ, Millhouse and Olsson JJ, 6 April 1990, Jdgt No 2199 at 4.
[16] R v Clothier [2001] SASC 9 at [50].
The circumstances in which provocation will reduce murder to manslaughter were stated by King CJ in The Queen v R[17] as follows:
It is necessary to recall certain basic principles of the law of homicide. The killing of one person by another with intention to kill or do serious bodily harm is murder. Such a killing may, however, be reduced to manslaughter if the killing results from a sudden and temporary loss of self-control on the part of the killer which is brought about by acts or words of the deceased amounting in law to provocation. To amount in law to provocation the acts or words must satisfy the following test: (1) they must be done or said by the deceased to or in the presence of the killer; (2) they must have caused in the killer a sudden and temporary loss of self-control rendering the killer so subject to passion as to make him for the moment not master of his mind; (3) they must be of such a character as might cause an ordinary person to lose his self-control to such an extent as to act as the killer has acted.[18]
In the same case, King CJ cited a passage from the speech of Viscount Simon in Holmes v Director of Public Prosecutions[19] as to the different functions of judge and jury:
In dealing with provocation as justifying the view that the crime may be manslaughter and not murder, a distinction must be made between what the Judge lays down as a matter of law, and what the jury decided as a matter of fact. If there is no sufficient material, even on a view of the evidence most favourable to the accused, for a jury (which means a reasonable jury) to form the view that a reasonable person so provoked could be driven, through transport of passion and loss of self-control, to the degree and method and continuance of violence which produces the death it is the duty of the Judge as matter of law to direct the jury that the evidence does not support a verdict of manslaughter. If, on the other hand, the case is one in which the view might fairly be taken (a) that a reasonable person, in consequence of the provocation received, might be so rendered subject to passion or loss of control as to be led to use the violence with favourable results, and (b) that the accused was in fact acting under the stress of such provocation, then it is for the jury to determine whether on its view of the facts manslaughter or murder is the appropriate verdict.[20]
[17] (1981) 28 SASR 321.
[18] Ibid at 321-22.
[19] [1946] AC 588 at 597.
[20] Ibid at 322. See also Van den Hoek v The Queen (1986) 161 CLR 158 at 162; Stingel v The Queen [1998] HCA 61; (1990) 171 CLR 312 at 333-4, 337; R v Clothier [2002] SASC 9 at [50].
In Masciantonio v The Queen[21] it was said that the question of whether provocation should be left to the jury should be answered by asking:
whether, on the version of events most favourable to the accused which is suggested by material in the evidence, a jury acting reasonably might fail to be satisfied beyond reasonable doubt that the killing was unprovoked in the relevant sense.[22]
[21] (1995) 183 CLR 58.
[22] Ibid at 67-8.
Applying those well-established principles, the appellant argued that there was evidentiary material capable of producing in the minds of a reasonable jury a reasonable doubt that the killing did not occur in circumstances of provocation.
The appellant pointed first to the evidence of his conversation with Ms Stone at about 11.30 pm, in which she told him that the deceased had, on a previous occasion, assaulted her. That evidence could not by itself provide a basis for a direction as to provocation because that information did not emanate from the deceased. However, the appellant argued that the evidence concerning that conversation provides important context to the evidence of what occurred when the appellant went into the house. As noted earlier, Ms Stone said that shortly after the appellant went inside she heard the deceased “basically going off his nut in a rage”. She heard him scream “I’m sick of this and fucking shit” and then either “fuck off you cunt” or “you fucking cunt”.
Next, the appellant referred to various statements he made in the telephone calls from the Remand Centre. In several of the calls, he said that he had walked into the lounge room and had asked the deceased why he had struck his mother. The appellant said that he expected the deceased to apologise or to explain himself. He said that instead the deceased had risen, struck him in the face, put him in a headlock, and had then dug his fingers into his (the appellant’s) eyeballs so seriously that he thought he was going to lose an eye. The appellant went on to say that if it was not for the deceased doing that, he would not have reached for the knife.
Finally, the appellant submitted that the five stab wounds inflicted on the deceased were consistent with a frenzied attack consequent upon a loss of self-control.
The appellant submitted that the jury, acting reasonably, could, by reference to this evidence, have concluded that it was at least reasonably possible that he had lost self-control and, further, that the deceased’s conduct was of a kind which may have caused an ordinary person to lose self-control and to do what he (the appellant) had done.
In our view, the evidence upon which the appellant relies for the present submission falls well short of satisfying the appropriate test. It does not suggest, even as a reasonable possibility, that the appellant had a sudden and temporary loss of self-control so that he was not, momentarily, the master of his own mind.
In the first place, we note that Ms Stone said that when she told the appellant that the deceased had struck her on a previous occasion the appellant did not appear to lose control. Instead she said that he just shrugged and looked bewildered. The statements which she heard the deceased make after the appellant had gone inside are not suggestive of a lack of control by the appellant. Further, there is no mention of loss of self-control by the appellant in any of the telephone calls which he made from the Remand Centre. Those calls include instead assertions by the appellant that his stabbing of the deceased had been controlled and necessary acts of self-defence. As we have said, there is no suggestion by the appellant in those telephone calls that he had suffered some loss of self-control. As the verdict indicates, the jury excluded self-defence as a reasonable possibility but it does not follow from that conclusion that the jury could thereby have concluded on the evidence that the appellant may have lost his self-control.
Applying the test stated in Masciantonio we do not consider that on the evidence in this case the jury could fail to be satisfied beyond reasonable doubt that the killing was unprovoked.
We also consider that a jury acting reasonably could not have been satisfied that a person with the self-control of an ordinary 26 year old (such as the appellant was) would, in the circumstances in the house at Frederick Street, Welland on 26 June 2008 have lost control to the extent of forming an intention to kill or to inflict grievous bodily harm.[23]
[23] Masciantonio v The Queen (1995) 183 CLR 58 at 66.
There are limited circumstances in which provocative conduct emanating from someone other than the deceased, or other than solely from the deceased may be sufficient for the defence of provocation[24] but circumstances of that kind were not disclosed on the evidence in this case.
[24] R v Fricker (1986) 42 SASR 436; R v Gardner (1989) 42 A Crim R 279.
This ground of appeal is not made out.
The Verdict is Unreasonable and Inconsistent with the Evidence, or is Unsupported by the Evidence
Section 353(1) of the Criminal Law Consolidation Act 1935 (SA) provides:
The Full Court on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law, or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal; but the Full Court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
In order to establish that a verdict is unreasonable or cannot be supported by the evidence, an appellate court must ask whether on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the appellant. In Libke v The Queen, [25] Hayne J said:
… the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.[26] [Emphasis in original, citations omitted]
[25] (2007) 230 CLR 559.
[26] Ibid at 113.
The appellant referred to a number of features in the evidence which he submitted were inconsistent with the verdict of guilty:
1.The evidence of the Ms Stone, about the deceased’s violent temper and his history of violence towards her.
2.The evidence of four witnesses that they saw redness or bruising to the appellant’s eye on the day after the incident.
3.The evidence of a significant wound to the appellant’s forehead.
4.The evidence of the forensic pathologist, Dr John Gilbert, to the effect that he could not determine the sequence in which the five knife wounds were inflicted, and his opinion that the force used in delivering the fatal stab wound was closer to moderate than severe.
Finally, the appellant submitted that the prosecution case characterising the killing as a murder was based on speculation.
Each of these matters was emphasised to the jury. Clearly they required closed consideration by the jury. However, on our review of the whole of the evidence we do not consider that the evidence which the appellant emphasised, considered alone or in combination, leads to the conclusion that the jury must have entertained a doubt about the appellant’s guilt.
The very fact that the deceased had a history of violence could not be seen as being inconsistent with a guilty verdict. The fact that the appellant suffered damage to his eye and a laceration to his forehead was consistent with the prosecution case that there was an altercation. The inability of the forensic pathologist to determine the sequence in which the stab wounds were inflicted did not of itself mean that the jury must have had some doubt. Murder cases in which there were no eye witnesses and which involved two people, one of whom is deceased, and the other of whom does not give evidence, will usually involve some element of surmise or drawing of inferences. Such features do not, of themselves suggest that a jury must entertain a reasonable doubt about the guilt of the accused. In this case the jury was asked to consider the inferences arising from the evidence which we summarised earlier. As we have said, we do not think that on that evidence the jury must have had a doubt about the appellant’s guilt. There was no criticism of the way the Judge directed the jury on how to go about that task.
This ground of appeal does not succeed.
Conclusion
For the reasons given above, we would dismiss the appeal.
KOURAKIS J: As the substantive law of manslaughter presently stands,[27] an offence which would otherwise be murder is manslaughter if the prosecution fails to disprove the following elements beyond reasonable doubt:
(a)Provocative conduct of the deceased or his proxy which, assessed from the perspective of the accused, has the capacity to cause an ordinary person to lose self control to such an extent that he kills; and
(b)A resulting sudden and temporary loss of self control to the extent that the accused kills before he has had the opportunity to regain his composure because he is not the master of his mind.
[27] The Queen v R (1981) 28 SASR 321 at 321-2 per King CJ; R v Cooke (1985) 39 SASR 225 at 235 per King CJ; R v Fricker (1986) 42 SASR 436 at 445 per King CJ; R v Gardener (1989) 42 A Crim R 279; R v Singh (2003) 86 SASR 473 at 493 per Mullighan J; Van Den Hoek v The Queen (1986) 161 CLR 158 at 161 per Gibbs CJ, Wilson, Brennan and Deane JJ; R v Earley (unreported, Supreme Court of South Australia, Court of Criminal Appeal (King CJ, Millhouse and Olsson JJ), 6 April 1990); Masciantonio v The Queen (1995) 183 CLR 58 at 67 per Brennan, Deane, Dawson and Gaurdron JJ; Stingel v The Queen (1990) 171 CLR 312 at 331 per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ.
It is the obligation of the trial Judge to direct the jury on all legal questions which are put in issue at trial and are raised by the evidence.[28] In the context of provocation manslaughter, it is often said that there must be evidentiary material which is capable of constituting manslaughter.[29] To put the threshold for leaving manslaughter by reference to an evidentiary onus is a convenient shorthand, but care must be taken not to slide from an evidentiary onus to a persuasive one. In Stingel v The Queen[30] and Masciantonio v The Queen,[31] the High Court warned that the threshold test is more accurately stated as “whether, on the version of events most favourable to the accused which is suggested by material in the evidence, a jury acting reasonably might fail to be satisfied beyond reasonable doubt that the killing was unprovoked in the relevant sense”.[32]
[28] Pemble v The Queen (1971) 124 CLR 107 at 118 per Barwick J. See also CTM v The Queen (2008) 236 CLR 440 at 495-6 [192] per Hayne J.
[29] Stingel v The Queen (1990) 171 CLR 312 at 334; Masciantonio v The Queen (1995) 183 CLR 58 at 67.
[30] (1990) 171 CLR 312.
[31] (1995) 183 CLR 58.
[32] Stingel v The Queen (1990) 171 CLR 312 at 334; Masciantonio v R (1995) 183 CLR 58 at 67-8. See also Van Den Hoek v The Queen (1986) 161 CLR 158 at 162; R v Earley (unreported, Supreme Court of South Australia, Court of Criminal Appeal (King CJ, Millhouse and Olsson JJ), 6 April 1990).
I have had the benefit of reading the draft judgment of White and David JJ. For the reasons given by their Honours, I agree that on the evidence the jury could not have failed to have been satisfied that the appellant was in control when he killed his victim. I also agree with their Honours in concluding that the jury must have been satisfied that an ordinary person in the proven circumstances would not have lost his self control such that he would decide to kill or cause serious harm. However, I provide my own reasons for coming to this latter conclusion below.
Provocation – the historical and contemporary context

The appellant’s contention that the trial Judge erred in law in failing to leave provocation to the jury, notwithstanding the concession at trial that provocation was no part of the defence case, provides yet another instance of the problematic nature of the defence both as a matter of practice and in point of legal principle. In light of contemporary social norms and neuropsychological learning, the legal test for provocation appears to me to be artificial and, I think, increasingly difficult to apply. I wish to briefly explain why that is so.
Manslaughter by provocation appears to have emerged from the doctrine of “manslaughter by chance medley” where a killing on a sudden falling out between men armed with deadly weapons was treated as manslaughter because the circumstances negatived malice aforethought.[33] Stephen described the evolutionary stage from that early doctrine which had been reached by the 18^th century in this way:
The superficial view that when one man kills another it must be either upon waylaying and premeditation or upon a sudden falling out, has been superseded by the broader and deeper view that the moral character of homicide must be judged of principally by the extent to which the circumstances of the case show, on the one hand, brutal ferocity, whether called into action suddenly or otherwise, or on the other, inability to control natural anger excited by a serious cause.[34]
[33] Sir James Stephen, A History of Criminal Law of England (1883) Vol III at pg 59. See also Discussion Paper of the Model Criminal Code Officers Committee, ‘Model Criminal Code Chapter 5 Fatal Offences Against the Person’ (1998) at 73; Law Reform Commission of Western Australia, ‘Review of the law of Homicide’, Project No 97 (2007) at 202-03.
[34] Sir James Stephen, A History of Criminal Law of England (1883) Vol III at 71.
By the 19^th century an act which would otherwise be murder was manslaughter “if the act by which death is caused is done in the heat of passion caused by provocation unless the provocation was sought or voluntarily provoked by the offender as an excuse for killing or doing bodily harm”.[35] The law accepted that assaults, fights and the sight of adultery could amount to sufficient provocation. In the draft code proposed by the Criminal Code Commissioners late in the 19^th century, “provocation” was defined in a way which, on its face, closely resembles the law as it is applied today:
Any wrongful act or insult of such a nature as to be sufficient to deprive an ordinary person the power of self control … if the offender acts upon it on the sudden and before there has been time for his passion to cool.[36]
[35] Ibid at 81.
[36] Ibid at 81-2.
However, in the 20^th century the requirement of “suddenness” was relaxed.[37] A little later the ordinary person was psychologically cleft and endowed with a subjective appreciation of the gravity of the provocative conduct,[38] but left with “ordinary” powers of self control.[39]
[37] Parker v The Queen (1963) 111 CLR 610.
[38] Director of Public Prosecutions v Camplin [1978] AC 705; R v Romano (1984) 36 SASR 283 at 291; Stingel v The Queen (1990) 171 CLR 312 at 326.
[39] Stingel v The Queen (1990) 171 CLR 312 at 327; Masciantonio v The Queen (1995) 183 CLR 58 at 69.
The primary difficulty with the defence of provocation is that the concept of “loss of self control” has no precise psychological, social or legal meaning. In one sense whenever an unjustified killing is committed there has been some loss of self control. The law, however, distinguishes between a sudden short-lived loss of self control experienced in the face of offensive conduct and a more persistent resolve to transgress against the moral precept against homicide. Secondly, as I have mentioned, the law distinguishes between those with the ordinary power of self control and those without it. There is no clear bright line against which to make either of the distinctions.
Neuropsychological studies have identified particular parts of the brain which are responsible for inhibition and self control. The prefrontal cortex appears to be the site of “executive function”, which regulates impulsive-aggressive behaviour.[40] Lesions to the orbital-frontal area are associated with impulsive aggression.[41] Imaging of the brain has shown a difference in neural activity in those regions of the brain between persons suffering borderline personality disorders with a behavioural dysfunction and control groups.[42] Other studies have differentiated between disturbed inhibition of behaviour, diminished capacity to reflect on consequences and the inability to postpone reward (delay aversion) and have identified different mechanisms which may be responsible for each of those dysfunctions.[43]
[40] Rogers RD, Everitt BJ, Baldacchino A, Blackshaw AJ, Swainson R, Wynne K, Baker NB, Hunter J, Carthy T, Booker E, London M, Deakin JF, Sahakian BJ, Robbins TW, ‘Dissociable deficits in the decision-making cognition of chronic amphetamine abusers, opiate abusers, patient with focal damage to prefrontal cortex, and tryptophan-depleted normal volunteers: evidence for monoaminergic mechanisms’, Neuropsychopharmacology (1999) 20:322-339 at 323.
[41] Soloff PH, Meltzer CC, Becker C, Greer PJ, Kelly TM, Constantine D, ‘Impulsivity and prefrontal hypometabolism in borderline personality disorder’, Psychiatry Research (2003) 123:153-163 at 154, 159.
[42] Silbersweig D, Clarkin JF, Goldstein M, Kemberg OF, Tuescher O, Levy KN, Brendel G, Pan H, Beutel M, Pavony MT, Epstein J, Lenzenweger MF, Thomas KM, Posner MI, Stern E, ‘Failure of frontolimbic inhibitory function in the context of negative emotion in borderline personality disorder’, Americal Journal of Psychiatry (2007) 164:1832-1841 at 1840.
[43] Patti I, Vanderschuren LJ, ‘The neuropharmacology of impulsive behaviour’, Trends in Pharmacological Sciences (2008) 29:192-199 at 192.
The detail of these studies is not of present importance.[44] What is important is that neuropsychology has identified a physiological basis for the law’s distinction, which is not practically susceptible of forensic proof in a criminal trial, between a sudden loss of self control and premeditated behaviour. But that very physiological basis suggests that a loss of self control of the order under consideration here results from an organic dysfunction of the cerebral mechanisms responsible for self control.
[44] It is of course impossible for the law of provocation to accommodate the advances in understanding of the functioning of the brain to which I have referred. I have mentioned that learning only as a context in which the contemporary application of the tests it proposes might be considered.
To my mind it is not at all surprising that the explanation for some persons losing self control to the point of killing may be a dysfunction of those parts of the brain responsible for impulse control rather than the incapacity of those mechanisms, even when properly functioning, to limit the ordinary person’s response to provocative conduct. I would be very surprised if, at least in contemporary Australian society, many persons or even more than a very small number of them would kill in the face of the insults that are still considered sufficient to cause an “ordinary” person to lose self control. The Law Reform Commission of Western Australia has taken a similar view:
As discussed below, a common feature of intimate partner homicides is the breakdown of the relationship or jealousy caused by infidelity. Bearing in mind the incidence of divorce and the frequency in which other relationships end, it is clear that ordinary people do not respond to relationship breakups or infidelity by killing their partners. As Coss stated, ‘[m]en who kill when affronted by their intimate partners are truly extraordinary’.[45] (emphasis in original)
[45] Law Reform Commission of Western Australia, ‘Review of the law of Homicide’, Project No 97 (2007) at 209-10.
I acknowledge that it “is not an appropriate test for provocation to ask whether most people would have responded in the same way as the accused”.[46] A jury must consider whether an ordinary person could lose self control and kill as a result of provocation. However, the undoubted truth that most people do not react in that way must inform the question whether an ordinary person could lose self control in similar circumstances and suggests that he (and it is most often a man who relies on this partial excuse)[47] could not. In my view, common human experience suggests that an abnormality in the functioning of the brain which controls behaviour of the sort discovered by neuropsychological investigation is a more likely cause of a sudden loss of self control than a hypersensitivity to such insults as infidelity or homosexual advances which are still sometimes considered sufficient to raise provocation. In this respect I share the difficulty expressed by Cox J in the following passage in R v Romano[48] in accepting that the ordinary person would lose control and kill in response to provocation of the sort that has been accepted as sufficient in the past:
There is no difficulty in regarding what the wife allegedly said as callous and hurtful and possibly confirmatory of an infidelity that the accused had previously suspected. It is to be borne in mind, however, that a successful defence of provocation requires the possibility of an ordinary man reacting as the accused reacted—that is, not returning his wife's abuse or even striking her, but shooting at her with the intention either of killing her or of doing her some really serious harm. For myself, I do not find that an easy proposition to accept. There is not much point in the law insisting upon an objective element in a provocation defence in this respect and then attributing to the ordinary man an ability to kill or to inflict serious physical harm with a lethal weapon in response to quite disproportionate provocation. It is not a matter of standards or moral judgment or sensitivity or compassion, but of how ordinary people, even ordinary people with particular characteristics, behave. However, it must be acknowledged that the test, as shown in such cases as Moffa v The Queen and The Queen v Webb and The Queen v R, is not as exacting as it once was. I must be guided, in my understanding of the ordinary man, by the majority judgments in those cases, not by the minority judgments.[49]
[46] Ian Leader-Elliott, ‘Case and Comment: Warren, Coombes and Tucker’ (1997) 21 CLJ 359 at 363 (emphasis added).
[47] Bennett MR, ‘Dual constraints on synapse formation and regression in schizophrenia: neuregulin, neuroligin, dysbindin, DISC1, MuSK and agrin’, Australian and New Zealand Journal of Psychiatry (2008) 42:662-677.
[48] (1984) 36 SASR 283.
[49] R v Romano (1984) 36 SASR 283 at 294.
Ultimately, the objective element of provocation is determined not so much by a hypothetical factual inquiry into the fictional mind of the ordinary person but by the application of a normative standard to the provocative conduct. The objective test of provocation is fundamentally determined by the question of whether society would accept that a person who loses self control in those circumstances and kills should be distinguished from others who form, and act on, an intention to kill. Whether or not an ordinary person would have lost self control in the face of the relevant provocative conduct ultimately involves the application of a social standard based on contemporary values.[50]
[50] Parker v The Queen (1963) 111 CLR 610 at 654 per Windeyer J.
The social context which informs that standard has changed much since the 19^th century. An “ordinary” military officer would now be expected to refrain from killing a colleague who spits in his face after branding him a coward.[51] For myself, I would doubt whether much of the conduct which was thought at various times over the last century to have the capacity to cause an ordinary person to lose self control to the point of killing another would now be so regarded. Modern police forces have proliferated and methods of policing have advanced considerably since the establishment of the Metropolitan Police Force for London in 1829 by Sir Robert Peel. The appropriate response to a sudden falling out or an actual or apprehended assault, where self defence is not immediately necessary, is to seek police assistance and later, if appropriate, compensation. Some of the other grounds which traditionally have been thought to have the potential to cause a person with ordinary self restraint to lose control reflect a view of manhood which is no longer generally accepted.[52] There do not appear to be any sound policy reasons to treat the sudden discovery of infidelity, the shock of a homosexual advance or other similar personal affronts as a sufficient basis to partially excuse what would otherwise be murder.
[51] Cf. Parker v The Queen (1963) 111 CLR 610 at 654 per Windeyer J.
[52] The very nature of the accepted categories of provocative conduct have been said to disclose a gender bias: Helen Brown, ‘Provocation as a defence to Murder to Abolish or to Reform’, (1999) 12 A Fem LJ 137; Discussion Paper of the Model Criminal Code Officers Committee, ‘Model Criminal Code Chapter 5 Fatal Offences Against the Person’ (1998) at 89-93; Law Reform Commission of Western Australia, ‘Review of the law of Homicide’, Project No 97 (2007) at 212 - 216.
Tension with excessive self defence manslaughter
The continued existence of manslaughter by provocation also causes some incoherence with the law relating to the partial excuse of murder by reason of excessive self defence. The decision in R v Howe,[53] that excessive self defence reduces what would otherwise be murder to manslaughter, was affirmed in Viro v The Queen.[54] It is still the law in South Australia.[55] In Van Den Hoek v The Queen,[56] Mason CJ held that a loss of self control induced, at least in part, by fear would reduce murder to manslaughter. Mason CJ thought that there was no inconsistency between the two defences because provocation focused on loss of self control and the defence of self defence on the appropriateness of the response. At the time Van Den Hoek was decided it was still the common law position that excessive self defence reduced murder to manslaughter. That position was reversed in Zecevic.[57] In Masciantonio v The Queen,[58] which was decided after Zecevic, the High Court referred to that part of judgment of Mason CJ in Van Den Hoek with approval.
[53] (1958) 100 CLR 448.
[54] (1978) 141 CLR 88.
[55] Criminal Law Consolidation Act 1935 s 15.
[56] (1986) 161 CLR 158.
[57] Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645.
[58] (1995) 183 CLR 58.
In my respectful opinion, although it is true that there is strictly no inconsistency in the dual position that provocation and excessive self defence can reduce what would otherwise be murder to manslaughter, there is much practical tension between them. If excessive self defence is negatived because it is proved beyond reasonable doubt that the accused knew that his conduct was not necessary for a defensive purpose, it is difficult to see how or why his loss of self control should partially excuse murder and reduce the killing to manslaughter when, on this premise, the accused was sufficiently rational to appreciate that his conduct was not defensive.[59]
[59] A Discussion Paper of the Model Criminal Code Officers Committee identified the abrogation of excessive self defence manslaughter as a reason to abolish the partial excuse of provocation because of the similar difficulty experienced by the courts with respect to both defences in articulating legal tests which reflect the moral distinction between such cases and other intentional killing in a clear statement of the law: Discussion Paper of the Model Criminal Code Officers Committee, ‘Model Criminal Code Chapter 5 Fatal Offences Against the Person’ (1998) at 97.
Interstate reform
Provocation has been abolished in Tasmania,[60] Victoria,[61] and New Zealand.[62]
[60] Criminal Code Amendment (Abolition of Defence of Provocation) Act 2003 (Tas).
[61] Crimes Act 1958 (Vic) s 3B, as amended by Crimes (Homicide) Act 2005 (Vic) s 3.
[62] Crimes (Abolition of Defence of Provocation) Amendment Bill 2009 (NZ).
The Law Reform Commission of Western Australia has recommended the repeal of the relevant statutory provision of the Criminal Code of Western Australia together with the reform of replacing the mandatory life sentence for murder with a “prescriptive sentence of life imprisonment”.[63] This recommendation recognises that since the abolition of the death penalty the distinction between a premeditated killing and one resulting from a sudden loss of self control may, subject to mandatory non-parole provisions, be accommodated in sentencing.
[63] Law Reform Commission of Western Australia, ‘Review of the law of Homicide’, Project No 97 (2007) at 222.
In the Northern Territory and the Australian Capital Territory non-violent sexual advances are deemed to be insufficient to provoke on an ordinary person to kill.[64]
[64] Criminal Code Act (NT) s 158; Crimes Act 1900 (ACT) s 13.
Application to this case
Recognising that the power of self control which the ordinary man is expected to exercise is a question of fact to be decided in each case, trial Judges and the Court of Criminal Appeal must approach their respective tasks informed not only by the majority judgments of the past to which Cox J referred in Romano but also by contemporary community standards.
The provocative conduct relied on by the appellant in this case is the argument which he had with the deceased about his mother and the subsequent fight in which his eyes were gouged. The violence inflicted on the appellant’s mother was not in itself conduct capable of provoking the appellant in the legal sense, nor was the disclosure of that violence by the appellant’s mother the provocative conduct of the deceased.[65] Domestic violence is unfortunately all too common, but there are many agencies available to give assistance to the victims of that violence. I understand that many sons in the appellant’s position may wish to confront their mother’s tormentor. However, applying contemporary normative standards I would hold that even the ordinary person who comes to blows over the issue would not become so incensed by a combination of indignation at the response of the unrepentant perpetrator of the violence and being overwhelmed by a fear of injury to himself that he would lose control and kill. I therefore find that a reasonable jury would be satisfied that the ordinary person would not be so affected by the combination of fear and anger that the appellant may have felt that he would form, and act on, an intention to kill.
[65] The Queen v R (1981) 28 SASR 321 at 325-6; R v Arden [1975] VR 448 at 451.
Exculpatory statements
I agree that the other grounds of appeal should be dismissed for the reasons given by White and David JJ. I wish only to add the following observations with respect to their comments concerning the evidential status of the exculpatory parts of statements made by the accused which have been received into evidence as part of the prosecution case. In my view they are clearly evidence on which the tribunal of fact may act in accordance with the weight it assigns to them.[66]
[66] Barry v Police [2009] SASC 295 at [67]; J H Wigmore, Evidence in Trials at Common Law (3rd ed, 1979) Vol 5, at 339, [1465]; Spence v Demasi (1988) 48 SASR 536 at 541-2; R v Familic (1994) 75 A Crim R 229 at 234; R v Callaghan [1994] 2 Qd R 300 at 304; Middleton v The Queen (1998) 19 WAR 179 at 182.
So much appears to have been accepted by Vanstone J in R v Collie,[67] who referred to the acceptance in Spence v Demasi[68] of the proposition stated in the English case of R v Duncan[69] that the whole of a “mixed” statement has evidentiary status.
[67] (2005) 91 SASR 339 at 374-5 [189]-[191].
[68] (1988) 48 SASR 536.
[69] (1981) 73 Cr App R 359.

The appellant in Collie did not give evidence but the trial Judge wrongly directed the jury that evidence of his bad character may affect their assessment of an exculpatory account he gave to others and which had been recorded by listening devices. In the passages cited by White and David JJ at [48], Vanstone J was explaining that that misdirection did not result in a miscarriage of justice because the recorded statements were not supported by any sworn testimony of the appellant. I suggest, with respect, that Vanstone J meant only that in the circumstances of Collie, the weight of the exculpatory statement was so slight that it amounted to no more than a possible version of events. It followed that the misdirection of the trial Judge in Collie could hardly have detracted from the weight the statements deserved.
Moreover, aside from the peculiar status once accorded to the unsworn statement given by an accused from the dock, I do not understand the concept of material which is not evidence but which can be the basis of a defence. A plea of not guilty is not material of that type because it is no more than the pleading of a general denial. Nor are the submissions of counsel material on which a defence can be based; they are no more than arguments about how evidential material can be weighed.
For these reasons, I would respectfully suggest that trial Judges should continue to give the direction that, once admitted, an accused’s statements can be used as tending to incriminate or exonerate the accused. A failure to direct the jury about the available favourable use of exonerating statements may in some circumstances lead to a miscarriage of justice.
Conclusion
I would dismiss the appeal