R v Khalouf

[2003] NSWCCA 179

CITATION:	R v KHALOUF [2003] NSWCCA 179
HEARING DATE(S):	26/06/03
JUDGMENT DATE:	8 July 2003
JUDGMENT OF:	Meagher JA; Dowd J; Barr J
DECISION:	Appeal against conviction allowed; conviction quashed; new trial ordered.
CATCHWORDS:	Criminal Law - murder or provocation manslaughter - jury unable to agree - directions
PARTIES :	Ali KHALOUF (Appellant) REGINA (Respondent)
FILE NUMBER(S):	CCA 60139/02
COUNSEL:	Crown: P Ingram Appellant: P Byrne SC/GA Bashir
SOLICITORS:	Crown: SE O'Connor Appellant: Ross Hill & Associates

LOWER COURTJURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	70061/00
LOWER COURT JUDICIAL OFFICER :	O'Keefe J

60139/02

MEAGHER JA
DOWD J
BARR J

Tuesday 8 July 2003

REGINA v Ali KHALOUF

Judgment

1 THE COURT: On 26 June 2003 we allowed the appeal against conviction, quashed the conviction, ordered a new trial and announced that we would publish our reasons later on. These are our reasons.

2 The appellant was convicted of murder following a trial by jury and appeals against the conviction and seeks leave to appeal against the resulting sentence. Before the trial began he offered a plea of guilty of manslaughter but the Crown declined to accept it in discharge of the indictment. Consistently with the appellant’s offer defence counsel conducted the trial upon the contention that the appellant was guilty of provocation manslaughter. Although self-defence was left to the jury, that was not a conclusion contended for by counsel for the defence and there was no realistic chance that the appellant would be acquitted.

3 The appellant was charged with stabbing Rebecca Diab to death on or about 18 February 2000 in an hotel at Bass Hill. The appellant and the deceased were having an affair and had gone to that place by arrangement. The appellant stabbed the deceased repeatedly, principally in the upper chest, the throat and the neck. After the stabbing the appellant showered and telephoned his son to tell him that he had killed somebody. Ultimately the son got in touch with the police, who attended the hotel, found the deceased dead, arrested the appellant and took him to the police station. Later on they interviewed him and he admitted stabbing the deceased. He said that during the night the deceased emerged from the bathroom and started waving a knife about in front of him and that he tried to take the knife from her and in the course of doing so received a cut to his hand. He managed to get the knife away from her and began stabbing her.

4 In his evidence the appellant told the jury that the deceased complained to him that every time they went to the hotel his son telephoned. She became increasingly aggressive and used words that were inflammatory to him, a man of Lebanese background. Accordingly, he became angry. The deceased performed an obscene sexual act in front of him while making derogatory comments about him. The incident with the knife followed.

5 It is convenient to deal with the sixth ground of appeal since the Crown made an important concession on appeal. The ground complains that the trial judge erred in his redirections on provocation and manslaughter.

6 His Honour summed up the case on provocation and manslaughter in these words -

Provocation has been raised as an issue in the trial. Let me stress there is no onus on the accused in relation to this.
There is no onus on the accused to prove provocation. The onus of proof to this matter is, as in all things in this trial, on the Crown. The Crown must negate provocation and do so beyond reasonable doubt. What in the law is provocation and what is its effect?
The legislature has relevantly provided:
“Where, on the trial of a person for murder, it appears that an act causing death was an act done under provocation and but for the provocation the jury would have found the accused guilty of murder, the jury must acquit the accused of murder and find the accused guilty of manslaughter.”
So provocation is about acquitting the accused of murder and finding the accused guilty of manslaughter. It is not a walk-free matter.
“For the purpose of this part of the law an act causing death is an act done under provocation where:
a) the act or omission is the result of a loss of self control on the part of the accused that was induced by any conduct of the deceased including grossly insulting words or gesture towards or affecting the accused; and
b) that conduct of the deceased was such as could have induced an ordinary person in the position of the accused to have so far lost self control as to have formed an intent to kill, or to inflict grievous bodily harm, upon the deceased; whether that conduct of the deceased occurred immediately before the act causing death or at any previous time.”
So from this you can see that an act causing death is done under provocation where the following elements, three in number, are present:
A) The act is the result of a loss of self control on the part of the accused.
B) The loss of self control was induced by conduct of the deceased towards of affecting the accused.
C) The conduct of the deceased was such as could have induced an ordinary person in the position of the accused to have so far lost self control as to have formed an intent to kill or to inflict grievous bodily harm on Mrs Diab.
The loss of self control may be due to fear, anger, resentment but it must be present at the time of the killing. Conduct which gives rise to a sense of grievance or revenge will not suffice.
An ordinary person is a person of the accused’s age and sex with ordinary powers of self-control for a person of that age and sex. Whether grossly insulting words were actually used by Mrs Diab is a question of fact for you to determine remembering that the onus is not on the accused, the onus is on the Crown to negate that they were said. Whether the accused lost his self-control is also a question of fact for you, again the onus is not on the accused, it is on the Crown. Whether the grossly insulting words or actions, if said or done, induced the loss of self-control, is also a question of fact for you to determine. Again there is no onus on the accused to prove this. The onus is on the Crown to negate it.
The Crown may establish that the accused’s act was not done under provocation by satisfying you beyond reasonable doubt that any one of (A), (B) and (C) that I have referred to already, was not so. That is by excluding any one of the necessary elements of provocation.
If the Crown has established all the elements of the crime of murder, except that the accused was not acting under provocation, then in that event the accused is not guilty of murder but must be convicted of manslaughter.
So you look at the elements of murder, you work through those, you ask yourselves, has the Crown proved each of those elements? You then come to provocation. If the Crown has not negated provocation then the accused is entitled to an acquittal on the charge of murder, but must be convicted of manslaughter.
Now, I have prepared a sheet that I spoke to you about. We found some typographical errors in them, one of them was the omission of the word “not” which was pretty important, so that has been rectified.
If I can just digress from provocation for a moment you will see what the sheet contains. It contains the elements that have to be established or negated beyond reasonable doubt by the Crown if murder is to be found. It then deals with what grievous bodily harm means. It deals with the matters I have directed you on in relation to self-defence and we are now on p 2 and I have summarised there the directions on provocation that I am giving to you.
Could I say to you ladies and gentlemen, the law of provocation is not easy as you will see as it unfolds and the refinements in it are a source of argument in superior courts.
I have said to you that the Crown may establish that the accused’s act was not done under provocation by satisfying you beyond reasonable doubt that any one of (A), (B) and (D), which you will see on p 2 of the sheet that you have been given, was not so, that is by excluding any one of the necessary elements of provocation.
If the Crown has established all the elements of the crime of murder, except that the accused was not acting under provocation, then in that event the accused is not guilty of murder but must be convicted of manslaughter unless it has also negated the provocation.
That indeed was the final plea to you on behalf of the accused by his counsel. I will return later to the crime of manslaughter. Let me continue with the matter of provocation however. It follows that for the accused to be guilty of murder the Crown must establish all the elements of murder including the intentional act of the accused which resulted in the death of the deceased and that the act causing death was not done under provocation.
Provocation has the three necessary elements (A), (B) and (C) that I have referred to, and it follows that if any one of those elements is excluded by the Crown, that is proved beyond reasonable doubt not to be, provocation is excluded as a partial defence and if the other elements of murder have been established then the crime of murder will have been established because provocation has been negated or negatived.
The first element in provocation is that the act of the accused was the result of a loss of self-control on his part. Let me say something about loss of self-control. The loss of self-control is not the same as an emotion, an emotion such as anger, resentment, hatred, revenge, possessiveness or something of that sort. None of those emotions amount in themselves to a loss of self-control, although they may lead to a loss of self-control.
Loss of self-control must involve the temporary suspension of reason. The temporary suspension of reason, that is a state where the power to reason rationally and sensibly has been lost. The relevant time is the time at which the intention to kill or inflict grievous bodily harm was formed. There must have been a loss of self-control in the sense I have indicated at the time of forming that intention.
Now, whether the accused in this case stabbed the deceased as a result of a loss of self control is a question of fact. It is therefore a question entirely for you, it is your province, not mine or anybody else’s. If the Crown is to exclude provocation on this ground it is for the Crown to satisfy you beyond reasonable doubt that the accused did not stab the deceased as a result of a loss of self-control. If, in your opinion, there is a reasonable possibility that he did stab the deceased as a result of a loss of self-control, reasonable possibility, the Crown will have failed to exclude that element in the legal concept of provocation. That is the first element.
I now go to the second element of provocation. If the Crown has failed to exclude loss of self-control under the first element, it may still exclude provocation by excluding one of the next two elements in the legal concept of provocation, that is elements (B) and (C).
For the Crown to exclude provocation in this way you must be satisfied beyond reasonable doubt that the accused’s loss of self-control was not induced by conduct of the deceased. The question for you in relation to this point is whether you are satisfied beyond reasonable doubt that, if there was a loss of self-control by the accused, it was not induced by conduct on the part of the deceased. That conduct may be either actions or words or it may be both. The principle can be re-stated in a slightly different way, looking at it in a different way. If there is a reasonable possibility that the accused lost self-control as a result of the conduct, be it words or actions or both, on the part of the deceased, the Crown has failed to exclude that element of provocation, and accordingly has failed to that element of provocation, and subject to element (C) has failed to exclude provocation at all.
Now, just to recapitulate. It is a necessary element in the crime of murder that the act was not done under provocation. The Crown must exclude provocation.
The Crown must exclude provocation. It may do this by showing one of the necessary components of provocation was not present. It may show that the act was not done as a result of loss of self control or it may show that loss of self control was not induced by relevant conduct of the deceased towards or effecting the accused. If it is to do either of those two things, it must do so beyond reasonable doubt.
I now come to the third necessary element which I referred to earlier on page two of the sheet you have been given. That is the conduct of the deceased was such as could have induced an ordinary person in the position of the accused so to have so far lost self control as to form an intention to kill or inflict grievous bodily harm on the deceased.
What is meant by an ordinary person in the position of the accused? You will note that there are two ideas built into that phrase; one is the idea of ordinary person; the other is the element, “in the position of the accused”. How can these two components of the phrase be reconciled? The answer to that has been settled by the courts. What I now tell you is the law in that connection which like every legal principle I instruct you on you are bound to accept.
There are two distinct steps. First you determine the emotional effect on the accused of the deceased’s behaviour. That is a question of fact. It is subjective. For that purpose you take the accused himself, not some hypothetical person, not yourselves.
You take the accused with all his personality characteristics insofar as they may be relevant. Conduct which may not be insulting or hurtful to one person might be extremely so to another because of some unusual or abnormal sensitivity which that other person may have. Confronting behaviour may be extremely provocative for such a person because of his personal characteristics which may include age, sex, race, ethnic and cultural backgrounds, life history, personality as it came to be because of life’s experiences on him and other personal qualities and characteristics.
You ask what was the emotional effect of the accused’s behaviour on the accused. If the deceased’s behaviour had a particular sting in it for the accused because of his personal characteristics, that is part and parcel of the emotional effects of the deceased’s behaviour on the accused. It does not matter for that part that most people would not have experienced or might not have experienced whatever emotional response the accused in fact experienced. The gravity of the documents conduct on this line of provocation is not assessed objectively. It is the gravity of that conduct as experienced by the accused. It is entirely subjective.
Having made that assessment of the gravity of the deceased’s conduct as experienced by the accused, you move to the second step. You move now from this man, the accused, to the generality of human kind. You ask whether an ordinary person experiencing the emotions felt by the accused could so far have lost self control as to form an intention to kill the deceased or to inflict grievous bodily harm on her.
For this purpose an ordinary person is a person of the same age and sex as the accused with the ordinary powers of self control for a person of that age and sex. Ethnicity, life history, personality and the like, that is the individual characteristics, play no part in the decision in relation to this aspect of the law of provocation. The test is an objective test for a person of the age and sex of the accused. So there is a little bit of subjectivity in the hypothetical reasonable person. That is you imbue that person with the characteristics of age and sex of the accused.
The concept or notion of self control necessarily involves a range of capacities for self control. Whether the capacity is at this lower end of the range is a matter for your judgment drawing on your experience of people and of life. You bring your knowledge of the world in which ordinary people may react to bear in deciding this matter.
The question is this. Are you satisfied beyond reasonable doubt that the deceased’s conduct was such as could not have induced an ordinary person in the position of the accused to have so far lost self control as to form an intention to kill or inflict grievous bodily harm? If the answer to that question is yes then the Crown has excluded that necessary element of provocation.
Again the matter can be put in another way as I did in relation to the first element. It can be put this way. The Crown will have failed to exclude the third element of provocation if there is a reasonable possibility that the conduct of the deceased was such as could have induced an ordinary person in the position of the accused to have so far lost self control as to form an intention to kill or inflict grievous bodily harm.
If the Crown has also failed to exclude the other elements of provocation which I have dealt with, it will have failed to exclude provocation as an element of murder.
The final element in the crime of murder, namely that the act was not done under provocation would then not have been satisfied and there would have to be a verdict of not guilty of murder, but guilty of manslaughter.
These are the principles of law applicable to the element of the crime of murder, that the act was not done under provocation.
I referred to manslaughter and I should give some directions in relation to that. Where an accused is charged with murder but where the Crown has failed to establish that his act was done with the intention required for it to amount to the crime of murder, there is an alternate verdict available and that is one of guilty of manslaughter.
This aspect of manslaughter or this way of arriving at manslaughter must be considered quite separately from the verdict of guilty of manslaughter which is the crime or result where the issue of provocation which I have just discussed with you has not been eliminated by the Crown.

7 His Honour dealt with manslaughter by unlawful and dangerous act and with self-defence and continued -

Now, you will see on the sheet that I have given to you that in relation to manslaughter one can arrive at a manslaughter verdict in one of two ways in this case. The first way is, if the Crown has failed to prove the specific intent necessary for the crime, and the second way is, if the Crown has established all the elements of the crime of murder except that the accused was not acting under provocation.
I have summarised in this sheet the way in which you may approach this question of manslaughter. The first, if the Crown has failed to prove the specific intent for the crime of murder. This is an approach or a way of approaching the matter which arises for consideration if the Crown has failed to establish that the accused intended to kill the deceased, or that he intended to inflict grievous bodily harm on her.
There, under that approach, the accused is not guilty of murder but guilty of manslaughter if, and only if, the Crown has established that: (a) it was a deliberate act of the accused which caused the death of the deceased, and (b) it was an unlawful and dangerous act. I have worked through on that sheet the things that I have said to you in relation to the various elements of manslaughter under that approach.
The second approach is, if the Crown has established all the elements of the crime of murder except that the accused was not acting under provocation, that is that the Crown proved all the elements one to five that I dealt with at the opening of the summing-up in relation to murder, but that it has not negated provocation and in that event the accused is not guilty of murder but must be convicted of manslaughter.

May I return to the question of provocation and because the evidence touches on some of the matters in relation to murder that I have directed you on, I have kept it until I had given you those directions.
The provocation in this matter is said to be twofold: one, the obscene acts said by the accused to have been done or carried out in his presence by the deceased with the cucumber, using it as some form of instrument of auto eroticism both vaginally and anally.
Well there is an issue of fact to start with that you have got to come to a conclusion on. The question that is posed is, did it happen? And the second thing is, words that were said by the accused to have been said by Mrs Diab. Those words, and I will come to them, were said by Mr Moses, the interpreter who was called to give expert evidence, were words that would be the most insulting words that one could use to a person of Lebanese extraction, particularly the combination of the three words relating to the accused’s mother.
As I have said Mrs Diab is not available to give evidence of what happened in the room, and as counsel for the accused pointed out there was no room video and nobody was running a tape recorder. The closest we come is words and noises heard by Ms Mughelli, which she was unable to understand because they were in a language other than English.
We do, however, have two lots of evidence from the accused. In his oral testimony (p 516):
“Q. When you got into the hotel room what happened after you got in there?”
This is a question asked by his counsel.
“A. We sat and we ate I think a mango and what I think was the red grapes and I was talking to her about how I was going to return home and I was wishing her a happy life with her family. Then we got on the bed and we made love. At all times I was talking to her in a way that would not make her upset so I would stay friends with her.
Q. Did she appear to be doing the same with you, saying nothing that would upset you and staying friends?
A. Approximately yes, at first yes that’s what happened.”
Note the sequence of events. He was then asked by his counsel:
“Q. At some stage did you receive a telephone call on your mobile phone?
A. Correct, from my son.
Q. Was that before or after you had made love to Ms Diab?
A. After making love.
Q. How long did the conversation go for with your son?
A. Seconds, not long. Seconds, not long.”
We know that call took place somewhere around very close to 11 o’clock in the evening, so we have got a situation on that evening that everything was calm, nice, each talking to the other to ensure that no one was upset.
“Q. What happened after that?
A. When I hung up Rebecca said ‘Everytime I am with you your son calls, your children call.’
Q. How did her demeanour appear, how did her behaviour change or was it the same as before? What was happening, what did you see?”
That might be five questions, yes, five questions in one but it certainly gave him the opportunity to answer.
“A. She was very upset, very upset.
Q. You have told us that she said to you in effect, ‘Your son always rings, your family always rings.’ What happened next, what was said after that?
A. She said to me, ‘Every time we are on the bed - I am on the bed with you your children’ – she said, ‘your children ring’ and she started swearing at me saying abusing words.
Q. What did she say?
A. ‘Son of a slut, your mother is a slut, your mother is a head of a league of sluts, your children are sluts. Tomorrow you going to go to your birthday. Your daughter is a slut and I am going to fuck your daughter because her husband is paralysed.’
“I didn’t hear” says the Prosecutor.
“HIS HONOUR: Q. ‘I am going to fuck your daughter because her husband is paralysed.’
A. ‘And your daughter needs this.’
KING: Q. How long did that conversation take?
A. Five minutes, ten minutes, something like that. I was trying to calm her down to pacify her and as long as I was trying to do that she was getting more upset.”
Q. Who went to the bathroom?
A. Rebecca went to the bathroom and came back.
Q. Where did she came back to?
A. To the room where I was on the bed…and I was trying to talk to her gently and calmly. She came she wanted to get on the bed so I would make love to her again. I said to her, ‘Please sit down so we can talk together. I am tired now and I can’t make love. Let us have mutual understanding, calmly.’ She got up quickly from the bed and there was a cucumber on the table. She was using the cucumber on herself.
Q. When you say ‘using the cucumber on herself’ what did you see her doing?
A. She was inserting it on herself from the front and the back.
Q. During that time did she say anything to you?
A. She was saying, swearing saying the same word that she used before. I asked her, ‘Please remove the cucumber’. I was begging her, ‘Why are you doing this to me?’ She told me, ‘I’m going to put it in your mum and dad….I’m going to put it in your mother and father, and Dad and the whole family. Your whole family. And if you are thinking of going back to your wife, you’re not going to go back to your wife unless, I’m going to kill you and kill myself first. I would kill you and kill myself.”
Curious, you may think, how she was going to kill herself first and somehow she would effect the second killing. I am not sure, but that is the evidence.
“Q. Did she say anything, or did she say anything describing the cucumber in relation to you?
A. The first thing she said, ‘This cucumber is better than you. You’re not a man.’ So the cucumber fell on the floor. So I got up in order to pick it up and put it away from her. She hit me on the shoulder.”
And then we have the evidence about the sole of the foot.
“A. I was trying up to that moment to be very calm, very calm with her.
Q. What happened next?
A. When I got up from the floor and I was going back to the bed, she pulled out a knife and charged at me. She hit me the first time and the second time and then other times in my hands and she jumped on me on the bed.” Et cetera.
That is the first account in evidence by the accused of the events and the matters of, I am sorry, the action and words of the deceased said to constitute the provocation.
“Q. When you say she hit you, what do you mean?
A. She hit me with the knife on my hand. She hit me with the knife. I thought that my hand had blown away”.
And then a little later he was asked by his counsel about the mark on the wrist. I don’t propose to go into that. Perhaps you take one of the photographs of the knife into the jury room and have a look at that photograph. You can form your own view about that, whether it is a crease in the wrist as the Crown suggests or a cut as counsel for the accused suggests. And he is asked about the knife.
“Q. What happened after that?
A. I remember after she charged at me while I was on the bed I remember taking the knife and hitting her and after that I don’t remember anything.
Q. Then she attacked you with the knife, is that right?
A. Yes.”
Question were asked and answered in English through the interpreter.
“Q. What was her demeanour like, her behaviour when that was happening?
A. Her – the look on her face wasn’t normal at all.”
Q. Did she say anything to you while she was doing that, doing those things?
A. Yes, she told me, ‘I’m not going to let you go back to your wife or to your house at all.’ I told her, ‘I’m not going back to my wife, I’m going back to my family.’
Q. Was there any more swearing or abuse or anything like that?
A. She was yelling and shouting and swearing and she charged at me and she pushed me on to the bed. I fell with her on the bed. While she was hitting me with the knife I fell with her on the bed.
Q. What sort of swearing words did she say to you?
A. ‘Son of a slut I’m going to f-u-c-k your mother and daughter, your family.’
Q. Did those words at that time have any effect on you?
HIS HONOUR: At which time are you referring to?
KING: During this attack and the words being said at the same time.
Q. When were those words said in relation to when she was attacking you?
A. They were said from the start, when she started until she charged at me and she was swearing and she hit me.
Q. When you say ‘hit me’?
A. She hit me with the knife.
Q. Is there another word for hit that you might use?
A. She hit me with the knife, she cut me.
Q. Is ‘cut me’ another word for ‘hit’ or are you talking about two different things?
A. She was coming on to me in order to hurt me. She came to me to kill me with the knife and she said to me, ‘I’m going to kill you.’”
I have read you that in another context. Well, there is one other passage I think. He has asked:
“Q. How were you at the time she was attacking you with the knife? How were you feeling, what was in your mind?
A. All I was, all I had in my head was to get the knife away from her hand but I couldn’t do that.
Q. Why did you want to get the knife away from her hand?
A. In order to put it aside.
Q. To put it aside?
A. So in order for me to get it away from her and from me.
Q. Why did you want to get it away from you?
A. So I wouldn’t strike her or strike myself or do something wrong.”
Up to then you may think it is a picture, expressed by the accused as one of calmness. He is trying to hose down a situation of tension, a situation of anger and loud response by the deceased, “Let’s sit on the bed, let’s talk things through calmly.”
There is an additional piece of evidence, however:
“I thought I was dead and death was in front of me. I was dead from the fright.
Q. At the time Ms Diab was coming towards you with the knife what effect, if any, did the swearing have on your mind?
A. The swear words had an effect on me before she charged on me with the knife and then she came with the knife. My knees started to go to jelly.
Q. I think you described it before you felt on fire inside?
A. My legs were shaking and my inside was on fire and my whole body was shaking. I didn’t know what was happening to me.”

8 The written directions referred to by his Honour included the following passages -

MURDER
Murder is established if the Crown proves:
1. The deceased died on or about 18 February 2000
2. it was an act of the accused which caused the death of the deceased;
3. it was a deliberate act by him;
4. The act was done -
(a) with an intention to kill the deceased; or
(b) with an intention to inflict grievous bodily harm upon her.
5. the act was not done in self defence, and

6. the act was not done under provocation.

…
MANSLAUGHTER
The accused may be found not guilty of murder but guilty of manslaughter. That may occur in one of two ways.
FIRST WAY: If the Crown has failed to prove the specific intent necessary for the crime of murder.
1. This arises for consideration if the Crown has failed to establish that the accused intended to kill the deceased or that he intended to inflict grievous bodily harm on her and, on that account, is not guilty of murder.
2. Under this approach, the accused is not guilty of murder but guilty of manslaughter if and only if the Crown has established that -
(a) it was a deliberate act of the accused which caused the death of the deceased, and
(b) the act was unlawful and dangerous.
…
Second Way: If the Crown has established all the elements of the crime of murder except that the accused was not acting under provocation.
In that event, the accused is not guilty of murder but must be convicted of manslaughter.

9 The jury retired on 9 August 2001. At 1:40 pm on the following day they asked a question in the following terms -

“Would you please clarify point ‘C’ of provocation with particular reference to:
(1) What is an ordinary person.
(2) Can point ‘C’ be broken into two parts, those being:
(A) Making an assessment of the gravity of the conduct of Rebecca on Ali, taking into account sex, race, history, ethnicity and personality, e.g. Muslim Lebanese background, and
(B1) Them asking ‘would this have the same effect on an ordinary person of the same age and sex only.’?
(B2) Is the ordinary person we are to consider someone like Ali who is bankrupt, has nowhere to live, no family (kicked out) breaking up with girlfriend, or is the ‘ordinary person’ just anyone of the same sex and age?
If part ‘C’ can be broken into these two parts and one is proven, the other not, how can we answer part ‘C’?
Also
(3) With part ‘B’ do we have to believe that the loss of self-control was ‘wholly’ induced by the deceased on the night to find the point proven. If there are contributing factors do we find this not proved?”

10 According to the transcript, during the debate which followed his Honour received a further note from the jury in these terms -

“Should the jury fail to be able to agree unanimously on provocation, is it a hung jury or do we go the (sic) second way of manslaughter?”

and there was this debate about the second note -

HIS HONOUR: What do you say about the hung jury question?
CROWN PROSECUTOR: Would your Honour recite it again for us?
HIS HONOUR: Yes. “Should the jury fail to be able to agree unanimously on provocation is it a hung jury or do we go to (sic) second way of manslaughter?” I do not think they can possibly go to the second way of manslaughter.
CROWN PROSECUTOR: No, they can’t but have we a hung jury?
HIS HONOUR: I do not know. I know as much as you know. I am not in the jury room, I do not skulk around the corridors. I know what is in the question.
CROWN PROSECUTOR: The question indicates to me they have not reached the --
HIS HONOUR: What is the answer to the question that you propose?
CROWN PROSECUTOR: They cannot take that course and then move on to manslaughter simpliciter.
HIS HONOUR: It seems to me you only get to provocation if you have found specific intent and having found specific intent, but you cannot agree on provocation, then they are hung.
CROWN PROSECUTOR: Yes. Can I say this that the wording of the letter indicates they have not reached that position as yet but if they have your Honour would have to give them a Black direction.
HIS HONOUR: The second way for manslaughter if the Crown has established all the elements of the crime of murder except that the accused was not acting under provocation, what happens?
CROWN PROSECUTOR: They cannot move on to that. If they cannot decide provocation they are hung and they cannot, then cannot dismiss it and move on to manslaughter.
KING: I agree. If they did ignore (sic – disagree?) provocation there is no alternative of manslaughter, it has got to be murder, so they are hung.
CROWN PROSECUTOR: The text of the letter does not indicate that they have reached that position.
HIS HONOUR: Absolutely and we will see. Once we have answered the questions we will give them some time and see what they do.
I am not sure that is right for the second way. I think they might be able to.

11 In due course his Honour gave further directions about the ordinary person in the position of the accused and this followed -

HIS HONOUR: You have asked me another question which sent dismay into my heart about a hung jury. Why not go away and see whether those directions help you and say I resume at 3.30, will that give you enough time to discuss that?
FOREPERSON: I think it will.
HIS HONOUR: If need be I will then give you some further directions in relation to hung or not hung. You are under no pressure remember, calm, mature deliberation but I hope those directions will be of assistance to you in resolving this question of provocation.

12 The jury retired again and his Honour sent in further written directions, which appear to have been in the following terms -

“The Crown will exclude provocation either by:
(1) Establishing that the stabbing which caused the death of Rebecca Diab did not result in fact from the loss of self-control on the part of the accused, or
(2) Establishing that such loss of self-control was not induced or caused by some conduct on the part of the deceased, or,
(3) Establishing that the conduct of the deceased was not such that it could have induced or caused an ordinary person in the position of the accused to have so far lost his self-control as to have formed an intention to kill or to inflict really serious bodily injury upon the deceased.”

13 The jury returned to the Court at 3:30 pm and the transcript records that this was said -

HIS HONOUR: Ladies and gentlemen, were those directions of any assistance to you?
FOREPERSON: Yes, they assisted us but we are still where we were at before we came in.
HIS HONOUR: You have asked a second lot of questions:
“Should the jury fail to agree unanimously on provocation, is it a hung jury or do we go to (sic) second way of manslaughter?”
Well now have you got before you the sheets that I handed out to you?
FOREPERSON: Yes.
HIS HONOUR: Now, you only get to the second way of looking at manslaughter if you find that the deceased died on or about 18 February 2000, that it was an act of the accused that caused the death of the deceased, that it was a deliberate act by him, that the act was done either with intention to kill the deceased or inflict grievous bodily harm on the deceased, and that the act was not done in self-defence. Those five elements.
Remember that the crown has to prove a negative under 6, that is that the act was not done under provocation. The act was not done under provocation has to be proved by the Crown and proved beyond reasonable doubt and unless you are satisfied beyond reasonable doubt that the act was not done under provocation, the accused then is entitled to a verdict of not guilty of murder but guilty of manslaughter. Now that is the second way you are asking about?
FOREPERSON: Yes your Honour.
HIS HONOUR: I am concerned that the question that you have asked about the hung jury may indicate when taken in conjunction with the other questions that you may be transposing the onus of provocation on to the accused. The onus is on the Crown to prove it was not provocation and unless the Crown proves that beyond reasonable doubt then you go into manslaughter by the second way.
So, if you have a doubt as to whether or not the elements of provocation have been proved beyond reasonable doubt – have been proved – if you have a doubt about that then you go into way two. Does that help you?
FOREPERSON: Yes.
HIS HONOUR: Then I will adjourn until 4.30 --
KING: Your Honour, some of the jurors were indicating no, it does not help.
HIS HONOUR: What they indicate is totally irrelevant, that is the direction that I am giving and I am sending the jury out to consider it. If they are not helped by it Mr King then no doubt they will send us another question.

14 Again the jury retired but returned with a further question at 4:05 pm -

“We can’t agree unanimously on all aspects of provocation. We have unanimously agreed murder has been established under points 1 to 5 inclusive. Can you confirm your direction is that we must bring a verdict of manslaughter?”

15 His Honour gave further directions as follows -

Ladies and gentlemen I take you to the sheet again. As I said to you earlier the Crown must prove that the act was not done under provocation.
Now, if you are left in any doubt about that then the Crown has failed to prove that element and then you go to the second way of manslaughter. Now that is one situation and that is one interpretation of your note.
Another interpretation of your note is that some of you are satisfied beyond reasonable doubt that the act was done (sic) under provocation and others of you are not satisfied beyond reasonable doubt that the act was not done under provocation, then you are a hung jury.

Now, does that assist you?
FOREPERSON: Yes it does your Honour.
HIS HONOUR: Because your unanimity is part of our system. Unanimity is different from reasonable doubt. Reasonable doubt is what each of you hold in your own mind but if some have no reasonable doubt, do not have a doubt at all, and others do, then you are not unanimous and that is the second situation that your note contemplates.

16 The jury retired again at 4:10 pm and returned with a verdict of guilty of murder at 4:20 pm.

17 There was some uncertainty (at least in the transcript) at trial and not a little difficulty on appeal about the terms and intent of the request by the jury for directions about whether they should go the “second way” to manslaughter if they were unable to agree about provocation. The Crown submitted on appeal that there must have been two notes in almost identical terms as transcribed in paras 10 and 13 above. However, an inspection of the file shows that there was only one note. It was in the following terms and variations from them in the transcript would appear to be erroneous -

Your Honour
Should the jury fail to be able to agree on point 6 provocation is it a hung jury or do we go to “Second Way” of Manslaughter.
Would you please clarify.
Thank you

18 Accordingly, we think that the references at 1:40 pm and 3:30 pm were to the one question in the one note.

19 Any uncertainty about the meaning of the note arose in the first place because manslaughter had been left to the jury on two different bases. That uncertainty would have been avoided in our opinion if the only basis left had been by provocation. Subject to the necessary but almost theoretical defence of self-defence, the only jury issues left should have been those raised by the parties. The appellant’s case was only ever that he killed the deceased but that he was guilty only of manslaughter because he was provoked. Counsel never argued for an acquittal. The accused thereby impliedly acknowledged that he had acted with the specific intent necessary for murder. In our opinion there was no occasion to leave for the jury’s consideration manslaughter by unlawful and dangerous act.

20 The basis of the Crown concession on appeal was the manner in which his Honour redirected the jury in response to their requests. The first submission was that the reference by the jury to the “Second Way” of manslaughter was to provocation manslaughter. This submission may be accepted. Although the meaning of the note was not immediately apparent, and although the Crown Prosecutor appeared at first to consider that the “Second Way” meant manslaughter by unlawful and dangerous act (if that is what the Crown Prosecutor meant by “manslaughter simpliciter”) we think that the jury were referring to provocation manslaughter. So much seems clear from the answer to that effect that the Foreperson gave his Honour and from the correspondence between the expression “Second Way” in the note and in the written directions, where that expression refers to provocation manslaughter.

21 It thus appears that the jury were asking, notwithstanding the clear directions his Honour had given, whether if they disagreed whether the Crown had rebutted provocation, they could return a verdict of not guilty of murder but guilty of manslaughter by provocation.

22 His Honour’s first response was to defer answering the question and to answer the substantial questions about the ordinary person in the position of the accused. His Honour’s only reference to the note was to indicate that he was dismayed and that he might give further directions about the effect of the jury’s inability to agree.

23 The jury returned to court after an hour by arrangement. They had raised no further question but the Foreperson indicated that the jury still needed help. His Honour responded by reciting the elements necessary for murder and provocation manslaughter and repeating his directions about the burden and standard of proof. However, his Honour made no reference to what was troubling the jury, namely whether if they were not unanimous that the Crown had rebutted provocation they should find the accused guilty of manslaughter. It cannot have come as a surprise that, according to defence counsel, some members of the jury were indicating that the further direction had not helped.

24 His Honour’s response, to the effect that the jury could send another question, brought forward the final note. The note repeated the previous request and asked his Honour to confirm that his direction was that they must bring in a verdict of manslaughter. It seems that by using the word must the writer of the note was referring to the written directions under the heading “Second Way …”.

25 His Honour’s first response was to say that if the jury were left in any doubt whether the Crown had proved that the act causing death was not done under provocation they should go to the second way of manslaughter, namely manslaughter by provocation. That direction said nothing about the matter which was troubling the jury, namely the proper course to be taken following their inability to agree. Insofar as the doubt referred to was not a unanimous doubt the direction was incorrect.

26 His Honour then dealt with what he called another interpretation of the note, namely that some jurors were satisfied beyond reasonable doubt and some were not. We have already remarked about the difficulty in relying literally upon the transcript of what was said. We have extracted accurately at para 15 above what his Honour is reported to have said and it seems appropriate to proceed, notwithstanding the possibility of inaccuracy, upon the understanding that what is written was said. His Honour’s remark that some might be satisfied beyond reasonable doubt that the act was done under provocation and others not satisfied beyond reasonable doubt that the act was not done under provocation was likely further to confuse a confused jury. Even if the jury were not misled by the error, and even if the transcript is wrong and there was no error, the concluding remark, namely, “then you are a hung jury” was our opinion unlikely to assist the jury.

27 In the question they last asked the jury plainly demanded to know whether if they disagreed whether the Crown had disproved provocation they must find the accused guilty of manslaughter. The question was never plainly answered.

28 The Crown submitted that his Honour’s last direction was capable of leading the jury to an erroneous conclusion about whether they were “hung” or not. They were never told in plain terms what they must or might do if they disagreed about provocation. We accepted those submissions and considered that the Crown’s concession was appropriately made. We considered that confusion in the mind of at least one juror about the consequences of disagreement might have led to the abandonment of a genuinely held dissenting view.

29 Counsel submitted that if the appeal succeeded on this ground the Court had no need to deal with any other ground of appeal. We have therefore not considered the other grounds.

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Last Modified: 08/13/2003