R v Lees

[1999] NSWCCA 301

CITATION:	R v Lees [1999] NSWCCA 301
FILE NUMBER(S):	CCA 60514/97
HEARING DATE(S):	15/9/99
JUDGMENT DATE:	29 September 1999
PARTIES :	Regina (NSW) Neville Andrew Lees
JUDGMENT OF:	Wood CJ at CL; Newman J; Foster AJ

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S) :	70049/96
LOWER COURT JUDICIAL OFFICER:	Badgery-Parker J

COUNSEL:	G. Nicholson QC with B.W. Cross (applicant) M.G. Sexton SC (Crown)
SOLICITORS:	Patricia White & Associates (Applicant) S.E. O'Connor (Crown)
CATCHWORDS:	CRIMINAL LAW- appeals - appeal against conviction and sentence; CRIMINAL LAW - directions to jury - provocation - whether directions on provocation by "words alone" correct - whether directions on standard of proof correct; CRIMINAL LAW - directions to jury - whether further directions offended principle in Black; CRIMINAL LAW - sentencing - whether special circumstances justifying a variation of the ratio between minimum andadditional terms
ACTS CITED:	Crimes Act 1900 (NSW) s 23 (specifically s23(2)(a) Criminal Appeal Act 1912 s 6(1) Sentencing Act 1989 s 5(2)
DECISION:	Appeal against conviction dismissed; Application to appeal atgainst sentence granted, but appeal dismissed; Conviction andsentence below confirmed

IN THE COURT OF
CRIMINAL APPEAL

No. 60514 of 1997

WOOD CJ at CL
NEWMAN J
FOSTER AJ

WEDNESDAY 29 SEPTEMBER 1999

Regina v Neville Andrew LEES

JUDGMENT

1   WOOD CJ at CL: The appellant was indicted before Badgery-Parker J on 1 September 1997, on a count of murder. He was convicted following trial, and sentenced to a minimum term of penal servitude for thirteen years and six months, and to an additional term of penal servitude for four years and six months. He now appeals against that conviction, and seeks leave to appeal against the sentence.

Facts

2   The victim Michael Grant, was in very poor health before his death, having been diagnosed as suffering from schizophrenia as well as hepatitis B and hepatitis C. Over the last four months of his life he received treatment for bouts of manic depression, and for pain associated with his damaged liver. Valium was prescribed along with codeine phosphate. He also had an addiction to drugs and alcohol. To assist with his deteriorating financial situation, he arranged for the appellant to move into his unit with him. This occurred about a month before the events which brought the appellant before the Court. 3   On the night of the victim’s death, neighbours heard the sounds of a struggle from his unit, including rhythmic banging, expletives, yelling and the smashing of glass. Emergency services were called. When police arrived, they observed the appellant standing over the victim attempting to pour water onto him. No pulse was found and the victim was pronounced dead by ambulance officers when they arrived. 4   Blood was found to be splashed around various parts of the unit. A blood-smeared and smashed vanity mirror was observed in the bathroom. The towel rack, which was smeared in blood over its whole length, was found to have been pulled from the wall. An 80cm. stick was also found on the bedroom floor. The appellant was seen to have injuries to the knuckles of both hands. 5   The victim suffered extensive injuries to his head, neck, arms, hands and lower back. The more serious injuries included subdural and subarachnoid haemorrhages, multiple abrasions and lacerations to the face, nasal fractures, and a fracture of one rib. He also suffered multiple bruising, some of which was of a tramline pattern, consistent with blows having been inflicted by a rod or piece of wood. 6   In an ERISP the appellant said that the fight occurred after he was struck in the mouth by the victim, following complaints concerning the rent that he owed. 7   It was the appellant’s case that, before the fight, the victim had consumed a quantity of Valium and codeine, and was affected adversely by those substances. He had consumed some Valium himself. Dr.Bradhurst, who conducted the post mortem, gave evidence confirmatory of the presence, in the victim’s blood, of substantial levels of codeine and morphine, along with therapeutic levels of Valium, and some levels of alcohol and of cannabinoids. Professor Starmer said that, at the highest, the effect of the drugs found in the appellant’s blood following arrest, would have been a ‘dulling’ of his cognitive functions. 8   The appellant gave evidence that, following the victim’s complaint about the unpaid rent, and the blow to his jaw, there was an exchange of punches. He recalled that, prior to the punch, there was some mention made of his father, who had hanged himself some years earlier on Christmas Day, and who had been found by him in this state, to his very considerable distress. The victim, he said, had often tried to counsel him about this matter, which had deeply affected him. He said that he still harboured a lot of anger towards his father, and was sick of people raising the issue with him. 9   The appellant admitted to losing control and to using extreme force in his response to the victim. He added that the victim was always hassling him or ‘dribbling in his ear’ about rent money and other things, or pressing him for money to buy beer, for marijuana and for prescription pills.

Ground 1 Provocation

10   The substantial issue in the trial was that of provocation. The question that arose, on appeal, was whether his Honour had erred, in so far as he informed the jury that ‘words alone which do not amount to a gross insult are not capable of giving rise to’ provocation. 11   This direction needs to be understood in the light of the summing up as a whole. In explaining provocation his Honour correctly outlined the law, when observing:

“The law defines an act as an act done under provocation so as to reduce murder to manslaughter if three conditions exist. First, that the act is the result of a loss of self-control on the part of the accused. Secondly, that that loss of self-control was brought about by some conduct of the deceased. That does not mean wrongful conduct of the deceased and it does not mean conduct of the deceased intended to bring about a loss of self-control. It is simply whether the loss of self-control resulted from some conduct of the deceased. Thirdly, that that conduct was of such a nature that it could have caused an ordinary person in the position of the accused to have so far lost self-control as to have an intention to kill or inflict serious injury.”

12   After giving this explanation, his Honour instructed the jury:

“Because in law the act is only an act done under provocation if all three of those conditions exist that I outlined to you, the Crown may discharge its onus of proof and exclude provocation from the case by proving that any one of the three conditions did not exist . The Crown does not have to exclude all three.
So the Crown will eliminate the possibility of provocation if it proves any one or more or all of the following propositions. First, the Crown might prove that the act of the accused which caused death did not result from a loss of self-control on the part of the accused. Second, and alternatively, the Crown might prove that there was no provocative act or conduct on the part of the deceased which caused the accused to lose self-control. Thirdly, and again alternatively, the Crown might prove that the act or conduct of the deceased which is said to have caused the accused to lose self-control was not such as could have caused an ordinary person in his position to lose self-control to the extent of forming an intention to do really serious injury to the deceased.”

13   The first element his Honour explained had, for all practical purposes, been conceded by the Crown, with the consequence that he did not take up any time dealing with it. 14   Dealing with the second element, his Honour gave the following direction, which included the passage relied upon by the appellant:

“The second condition upon which it may be found that the act causing death was done under provocation is that the loss of self-control on the part of the accused was caused by conduct of the deceased. The conduct of the deceased that may be considered as provocation may consist of acts alone, or acts in association with words, or words alone, but if words alone are relied upon as constituting provocation, those words must amount to a gross insult . Words alone which do not amount to a gross insult are not capable of giving rise to this issue of provocation. If words are relied on, not alone but together with actions, they need not be of that kind, they need not amount to a gross insult, and what has to be regarded in that event is the whole of the course of conduct of the deceased including both his words and his actions, whether or not those words amounted to a gross insult.

15 It may be assumed that in giving this direction his Honour had in mind s23(2) of the Crimes Act 1900, which is in the following terms:

“(2) For the purpose of subsection (1), an act or omission causing death is an act done or omitted under the provocation where:
(a) the act or omission is the result of a loss of self-control on the part of the accused that was induced by any conduct of the deceased (including grossly insulting words or gestures) towards or affecting the accused; and
(b) that conduct of the deceased was such as could have induced an ordinary person in the position of the accused to have so far lost self-control as to have formed an intent to kill, or to inflict grievous bodily harm upon, the deceased,
whether that conduct of the deceased occurred immediately before the act or omission causing death or at any previous time.”

16 The question whether words or gestures need to be grossly insulting before they can amount to provocation, within s23(2)(a) of the Crimes Act, so as to reduce murder to manslaughter, seems not to have been directly the subject of decision, since the amendment of this provision in 1982. 17 It has always been accepted that physical acts can qualify as provocation. Initially, however, there was some scepticism that mere words could do so. In Holmes v DPP (1946) AC 588, a case decided under the common law, Viscount Simon rejected the proposition that a sudden confession of adultery could constitute provocation of the sort which might reduce murder to manslaughter, disapproving of the dictum to the contrary of Blackburn J, in Rothwell (1871) 12 Cox C.C. 145 at 147. 18 In the circumstances of that appeal, his Lordship noted (at 599) that the expression “provocation by mere words” could have more than one meaning. First “it may mean provocation by insulting or abusive language, calculated to arouse the hearer’s resentment”. Secondly, the phrase “may be used, not as an expression of abuse, but as a means of conveying information of a fact or of what is alleged to be a fact”. 19 His Lordship went on to say (at 600):

“It is not necessary in this appeal to decide whether there are any conceivable circumstances accompanying the use of words without actual violence, which would justify the leaving to a jury of the issue of manslaughter as against murder. It is enough to say that the duty of the judge at the trial, in relevant cases, is to tell the jury that a confession of adultery without more is never sufficient to reduce an offence which would otherwise be murder to manslaughter, and that in no case could words alone, save in circumstances of a most extreme and exceptional character , so reduce the crime. When words alone are relied upon in extenuation, the duty rests on the judge to consider whether they are of this violently provocative character , and if he is satisfied that they cannot reasonably be so regarded, to direct the jury accordingly.”

20   In Moffa (1977) 138 CLR 601, Gibbs J said in relation to the common law, at 616:

“In Holmes v Director of Public Prosecutions the House of Lords authoritatively expounded the rules of the common law on the question whether provocation can be constituted by ‘mere words’. At the time when that case was decided it was already settled that insulting or abusive language (not being menace of immediate bodily harm) could not reduce murder to manslaughter. The law was not so clear as to whether words used as a means of conveying information might constitute provocation. As to this, their Lordships held that a confession of adultery - even a sudden confession - without more is never sufficient to reduce to manslaughter an offence which would otherwise be murder. This rule has been affected by statute in some places but it is still the rule of the common law.”

21   Barwick CJ accepted the correctness of this statement, observing at 605:

“I feel bound to agree with my brother Gibbs’ conclusion that if nothing more had been established by the applicant by way of provocation than mere words and if those words were not, to use the language of Viscount Simon in Holmes v Director of Public Prosecutions of a violently provocative character, the onus upon the Crown of establishing beyond reasonable doubt that the killing of the deceased’s wife was unprovoked did not specifically arise.”

22   To similar effect was the observation of Stephen J at 619:

“In answering this question one bears in mind that no mere confession of adultery, however sudden, suffices ( Holmes v Director of Public Prosecutions 40) Words alone, whether in themselves insulting or obscene or which recount a necessarily provocative event or fact, would, as Viscount Simon there said, have to involve ‘circumstances of a most extreme and exceptional character’ if they were to reduce murder to manslaughter’.”

23   Mason J left the gate open for a somewhat wider application of the rule, in the following passage, at 620-621:

“There is no absolute rule against words founding a case of provocation. The existence of such an absolute rule would draw an arbitrary distinction between words and conduct which is insupportable in logic. No doubt provocative acts justifying the reduction of murder to manslaughter are more readily imagined and more frequently encountered than provocative words which justify the same result. Violent acts, rather than violent words, are more likely to induce an ordinary person to lose his self-control. And a case of provocation by words may be more easily invented than a case of provocation by conduct, particular when the victim was the wife of the accused. There is, therefore, an element of public policy as well as common sense in requiring the close scrutiny of claims of provocation founded in words, rather than conduct.
The observations of Blackburn J and Viscount Simon to which I have referred are salutary warnings against a too ready acceptance of claims of provocation based on words alone. They emphasise the necessity for compliance with the demanding requirements which underlie the concept of provocation.”

24 The common law rule was altered by s23(1) of the Crimes Act 1900 which provided that where, on the trial of a person for murder, it appeared that the act causing death was induced by the use of grossly insulting language or gestures on the part of the deceased, the jury might consider the provocation offered, as in the case of provocation by a blow. 25   In Withers (1925) 25 SR (NSW) 382, a sentence appeal, Street CJ, with whom James and Campbell JJ agreed, stated (at 392-393) that:

“The effect of that section is, as is pointed out by the authors of Hamilton and Addison on Criminal Law and Procedure, to place killing upon provocation arising from grossly insulting language or gestures on the part of the person killed in the same position as killing upon provocation arising from a blow.”

26   The matter was further reviewed in Tsigos (1964-5) NSWR 1597 where Walsh J (with whom Moffit J agreed on this point) noted at 1611 that:

“The historical development of the principle that provocation might extenuate a homicide so as to make it manslaughter was discussed in the judgments of Dixon CJ and Windeyer J, in Parker v R [1963] ALR 524 at 552; [1963] 37 ALJR 3 at p20. Windeyer J referred to two rules which became established. One was that, when a husband discovered his wife actually in the act of adultery and killed her, this was manslaughter. “At the other end of the scale stood pronouncements that reproaches, however, grievous, and insulting words and gestures, however offensive, would not count as provocation if they were unaccompanied by any assault or blow”. Windeyer J went on to say that, perhaps, this latter rule was not always quite so strict, but that it was only in exceptional cases, if at all, that mere words could count even as slight provocation. At [1963] ALR at 554, 37 ALJR at p 22, Windeyer J stated:
‘It is obvious that the purpose and effect of what is now subsection (1) was to abrogate the common law rule that insulting words or gestures alone cannot amount to a provocation sufficient to reduce a killing from murder to manslaughter.’”

His Honour went on to observe:

“This statement does not solve the question of the meaning which has to be given to the expression ‘grossly insulting language’. It is arguable that this expression was chosen with the intention that, whilst the scope of the doctrine of provocation was to be enlarged, this was only to be to the extent that it would now include abusive or offensive language containing a personal insult or affront. If this was the intention, it means that provocation could consist of mere words, in the first of the senses to which Viscount Simon referred, in Holmes v Director of Public Prosecutions [1946] 2 All ER 124; [1946] AC 588, but not in the second of the senses to which he referred. Upon this view statements concerning past acts of adultery or future intended acts of adultery would not, as such, be brought by this enactment within the scope of provocation, although no doubt these might be made in such a manner or combined in such a way with derogatory references to the hearer, that the statements considered as a whole could be regarded as amounting to grossly insulting language. I think there is much to be said for this view of the effect of s.23(1). But no such limitation upon its effect was recognised in the judgment of this Court in R v Withers (1925) 25 SR (NSW) 382.”

27   The correctness of the assumption in Withers, that by reason of the statutory alteration of the common law, the trial Judge had been correct in leaving, as provocation, statements by the wife of the accused that she would not return home and “was going to have a good time”, was left for another day. 28   That the enactment of a statutory provision, governing the law of provocation, should be seen as involving a deliberate departure from the long prevalent common law approach that the kind of conduct which could as a matter of law, constitute provocation reducing murder to manslaughter, was somewhat confined, and did not include a case of mere words, is supported by the observations of the High Court, to that effect, in Stingel (1990) 171 CLR 312 at 323. 29 The question which arises in the current case is to be determined in the light of the further amendment to s23 effected in 1982, the purpose of which was to ensure that conduct may be provocative, in the legal sense, whether it occurred immediately before the act or omission causing death or at any previous time; and also to make it clear that any conduct of the deceased towards or affecting the accused, may be the basis of the defence: Hansard Legislative Assembly 11 March 1982, pp 2482 to 2486. 30   It is now accepted, it would seem, whether the law as to provocation is governed by the common law or by statute or code, that words, particularly those of “an appropriately violent character” can qualify as provocation in law: Dutton (1979) 21 SASR 356; Romano (1984) 36 SASR 282; Allwood (1975) 18 A Crim R 120. 31 The expression “conduct” where used in s 23(2)(a), is itself sufficiently wide to include words, as well as physical acts (which gestures in substance are), directed towards or affecting the accused. So much is indicated by the words in parentheses in the section, which are words of inclusion rather than of addition. The legislative intention in this regard, it may be assumed, was to preserve the availability of the defence, provided under the repealed provision, for those cases where the conduct of the deceased comprised insulting words or gestures, that might properly be categorised as gross, rather than matters of mere insult. 32 It does not necessarily follow from the words in parenthesis, that the category of words or gestures, that can qualify as conduct for the purpose of S23(2)(a), is to be confined to matters of insult. In most cases, the relevant words or gestures will be of that genus. I am not, however, persuaded that the relevant conduct, so far as words or gestures are concerned, should necessarily be confined to words or gestures that assume the description of an insult. Where they are of that character, and they stand alone, then it is reasonable to expect that they should answer the description of being gross, since their potential effect is to reduce murder from manslaughter. 33 It is not, however, difficult to imagine words or gestures which are violent, threatening, or otherwise distressing which do not answer the description of an insult, yet which can be highly inflammatory. It is difficult to accept that the Legislature intended, when amending the 34 Section in 1982, to exclude them from the range of “conduct” that is capable of constituting provocation. For example, it has been held that words amounting to a threat to “cry rape” unless the appellant paid over some money, can qualify as provocation: Webb (1976) 16 SASR 309. Moreover, there is abundant authority for the view that particular acts or words which, if viewed in isolation, are insignificant or colourless, may nevertheless constitute provocation when viewed cumulatively with other words, or with other conduct. R (1981) 28 SASR 321 at 326 per King CJ; Stingel (1990) 171 CLR 312 at 325 and Hutton (1986) 20 A Crim R 315 at 317 and 328. 35 The modern development of the law in relation to provocation by words is usefully encapsulated in the judgment of Ormiston JA, in Tuncay [1998] 2VR 19, at 21:

“It should be observed that the proposition about ‘mere words’ derives from a period in the law when issues as to what constitutes provocation were treated as questions of law to be resolved by the judge and before any direction akin to that now given to juries (although expressed differently) was first introduced in England in the early nineteenth century: cf R v Morly (1666) Kel.53; 84 ER 1079. There at Kel. 55; ER.1080 the judges assembled resolved that ‘no words, be they what they will, are in law such a provocation, as if a man kill another for words only will diminish the offence of killing a man from murder to manslaughter”: see also R v Mawgridge (1707) Kel 119 at 130-1; 84 ER 1107 at 1112. In my opinion, to the extent that these propositions were subsequently adopted, they should be treated as merely reflecting what the reasonable or, now, “ordinary” person would have been treated by a jury as concluding if provocation confined to words had been allowed to go to the jury. The difficulties inherent in taking that view in the twentieth century and the qualifications put on the broad proposition may be seen in Holmes v Director of Public Prosecutions and Moffa : cf. Laws of Australia ‘Criminal Offices (Title 10) para. 92. The general principles as to provocation having now been restated in Stingel and Masciantonio , the question may now be left to the jury as the constitutional tribunal of fact to decide what is the ordinary person’s response to the use of allegedly provocative words, whatever be their form and context, but subject to the power of the trial judge to take away from the jury any claim of provocation which could in no circumstances properly lead to a verdict of manslaughter.”

36   It follows, in my view, that a direction suggesting that words alone are not capable of giving rise to an issue of provocation unless they amount to a gross insult, would be incorrect if it was understood as excluding all other kinds of verbal communication. 37   It is not the case, in my view, that provocation is confined, in the case of words, to matters of insult strictly understood. Other kinds of words may qualify as provocative conduct, such as words of threatened violence, blackmail, extortion and so on. They are equally capable of provoking strong feelings, and they may or may not be accompanied by physical acts. They do, however, need to be of a sufficient violent, offensive, or otherwise aggravating character to be capable of satisfying the third element of provocation outlined above. Mere words of abuse or insult would not normally qualify. 38   The question of law whether there is material in the evidence capable of constituting provocation remains one for the Judge. 39   The test for the trial Judge, as framed in Stingel at 334 and cited with approval in Masciantonio (1985) 183 CLR 58 at 67 to 68, is:

“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”.

40   If the evidence is capable of meeting the test stated, the defence is to be left to the jury Stingel at 333. 41   To the extent that the direction might have indicated that words cannot qualify as provocation unless they constitute a gross insult, it accordingly went too far. That, however, is not the end of the matter, since that direction needs to be understood in the full context of the summing up. 42   In this regard it is critical to note that, at no point in the summing up, did his Honour take away from the jury the remark concerning the suicide of the appellant’s father as being incapable of constituting provocation, or suggest that the jury exclude it from their consideration if they thought that it did not involve a gross insult. At the highest, the appellant submitted that by inference, the jury were directed that unless they reached the conclusion that those words were grossly insulting, then they were to leave this conversation out of consideration. This had an added significance, so it was submitted, if they were satisfied that the victim had not struck the appellant, since that would leave the spoken words as the only conduct on the part of the victim that preceded the incident. 43   This possibility was not, however, canvassed by his Honour. On the contrary, the jury were consistently instructed that they could take into account the remark concerning the appellant’s father when considering the issue of provocation, that is unless the Crown left them satisfied beyond reasonable doubt that no such remark was made. 44   So it was that his Honour said:

There is material before you, if you accept it, which establishes some conduct on the part of the deceased during the course of that night, and perhaps some words uttered by the deceased, which are the matters giving rise to the possibility that this was a killing done under provocation, the possibility which the Crown must exclude beyond reasonable doubt . Those include the assertion made by the accused on at least two or three occasions that the deceased hit the accused, and also the faint suggestion by the accused in the course of his electronically recorded interview, considerably expanded of course in his evidence to you, that the deceased had made a comment about the circumstances in which the father of the accused had met his death ; and also … you need to consider the evidence of Michael Grant’s behaviour, no doubt irritating and no doubt sometimes quite unpleasant, of repetitive nagging, for example, about the rent or repetitive comment on matters which the accused regarded as no part of Michael Grant’s concern, which is what I take the accused to mean during his repeated references to the deceased “dribbling” in his ear.
…
In reaching conclusions as to the effect of Michael Grant’s conduct on the accused that night and as to the capacity of that conduct to cause an ordinary person to lose self-control, you must, as Mr. Zahra very properly said, look at all of the relevant conduct together, not each part of it in isolation because that would be unreal. However, before you get to the stage of looking at all of the conduct together, you must look at the evidence to see whether there really is a reasonable possibility that the particular conduct of the deceased took place, whether the Crown has satisfied you beyond reasonable doubt that no such thing occurred. For that it is necessary to look at each aspect of the deceased’s conduct on which the accused relies separately from the others.”

45   After summarising the evidence in relation to so much of the conduct of the victim as was said to be provocative, involving the punch which the appellant said initiated the fight, his Honour returned to the suicide remark. This was introduced by the observation:

“The second element of conduct on the part of Michael Grant which is relied on as provocation is to be found in the accused’s evidence about his reaction to mention of his father’s death. The Crown says, in effect, that a consideration of the evidence would lead you to be satisfied beyond reasonable doubt that nothing which may have been said by the deceased about the accused’s father, if indeed anything was said, had any role in producing the accused’s loss of self-control, particularly in light of the way the topic came up. The Crown submitted that you would be satisfied that nothing at all was said by the deceased on that topic that evening. You may, no doubt, and you probably would, accept that the accused was terribly distressed and traumatised at the time of his father’s death. There is no dispute about that. The evidence of his mother about that was not challenged, nor was his own evidence; there is corroboration of it in the records of Trigg House (Exhibit 2) and it is indeed precisely what you might expect. To what extent it was still a problem for him at the time of the killing is a matter for you, and indeed it is a matter for you what was the relevance of that emotional sensitivity to the events with which you are concerned.”

46   These passages make it crystal clear that one of the matters left to the jury as potentially constituting provocative conduct included the remarks concerning the suicide of the appellant’s father. The issue that was left in relation to it was whether there was any such conversation, and if so whether it had any role in producing a loss of self control. No issue arose as to whether it should be ignored because it might not qualify as grossly insulting. Moreover, these passages made it clear that the alleged blow, and all of the matters discussed, whether they related to rent, or to the appellant’s father, or to any other matter about which the appellant considered the victim to have been “dribbling in his ear”, were to be considered together, and not in isolation. 47   Had there been any doubt about that, then it would have been entirely put to rest by the direction later given:

“I remind you that in order to determine whether any particular piece of conduct on which the accused relies may have occurred on that night, or whether the Crown has satisfied you beyond reasonable doubt that it did not, it is proper for you to look at the evidence on each of those particular matters directly apart from any other issue, but when you come to resolve the issue whether any conduct on the part of the deceased which occurred that night in fact caused the accused to lose control or may have done so, you should not consider each of the events of that night in isolation, you have to consider together all of the conduct of the deceased as the evidence shows it to you. An event which of itself does not appear to be likely to have caused such loss of control may in fact have done so if it was the culminating event in a sequence of provocative behaviour. If you are of the view that it is reasonably possible that the deceased did say some such things as the accused indicates in the recorded interview, you should not reject the possibility that that in fact provoked his violence without considering everything else that you find may have occurred.”

48   Additionally, in directing the jury as to the way that they should deal with provocation, his Honour explained that the first step was to identify the conduct which they were “prepared to recognise as having possibly occurred and provoked a loss of self control on the part of the appellant”. Among the possible items identified, his Honour noted, was the “remark made by the deceased about the circumstance of (the) death (of the appellant’s father)”. 49   Correctly, his Honour explained that, “having identified the provocative conduct which the evidence suggests may have occurred, and which the Crown has failed to prove did not occur,” the jury had then to consider “how seriously that conduct may have been perceived by the accused himself”, taking into account “what you know of (him), his personality, his condition at the time, and matters in his background which may have given the so called provocative conduct some particular significance to him.” 50   In dealing with the remark concerning the suicide, his Honour said:

“You may think that nothing of that kind arises in relation to any physical assault on him by the deceased, if there was such a thing, nor indeed in relation to his reaction to the nagging or niggling by the deceased, but it may be of particular relevance in relation to the trauma of his father’s death in the circumstances in which it occurred. His emotional reaction to it, if that appears to you to be the case, the persistence of that emotional reaction or sensitivity right up to the date of the killing, you have to take into account, in determining how seriously the accused may have perceived anything in the nature of provocation, arising from something said by the deceased about his father’s death.”

51 His Honour followed this with an entirely conventional, and appropriate direction, concerning the possible reaction of the ordinary person in the position of the appellant, to whatever provocative conduct there may have been. 52 On the second day of the summing up his Honour took the jury through the written directions that were provided that day. Nothing was said, in this exercise, that in any way differed from the directions given the preceding day. Nor was anything different said in the supplementary directions which His Honour gave, after the jury had retired, which were the subject of the third ground of appeal. 53 When the summing up is read as a whole it is clear that his Honour left the case to the jury as one which was not dependent on words alone. Moreover, there is no room, in my view, for the inference that the jury was left with an understanding that they were to leave aside the remarks about the appellant’s father, or indeed any of the other words spoken by him, if that was all that had been said or done, upon the basis that they were not grossly insulting. 54 Although no objection was taken to the directions at the trial by experienced Counsel appearing for the appellant, I would grant leave under R4 of the Criminal Appeal Rules. However, having regard to the manner in which the summing up was framed, I am satisfied that no miscarriage of justice occurred. The case is suitable for an application of the proviso to S6(1) of the Criminal Appeal Act, 1912.

Ground 2 - onus of proof

55   It was conceded by Senior Counsel for the appellant that, if the directions on provocation were to be understood in the context of the general directions as to onus of proof, then this ground could not be made out, since his Honour’s directions in that regard were clear and unequivocal. 56   In my view, this ground of appeal need not be decided upon such a narrow basis, since his Honour clearly went to great pains to point out to the jury where the onus lay in relation to provocation, and did so in terms that were entirely correct. For example, his Honour observed, early in the summing up:

“… the accused is not to be convicted of murder unless the Crown has satisfied you beyond reasonable doubt that the act that caused death was not an act done under provocation, that is to say, the Crown must exclude any reasonable possibility that the act that caused death was done under provocation .”

57   This direction was repeated when his Honour came to outline the law in relation to provocation, in the course of which he observed:

“I told you earlier that the onus rests upon the Crown to prove to you beyond reasonable doubt that the act of the accused which caused the death of Michael Grant was not an act done under provocation ”.

His Honour continued:

“This is not a case where the accused has actually in terms said to you, or to anybody else so far as the evidence shows, that he was provoked. Let me therefore emphasise to you that it does not rest upon the accused to prove that he was provoked. Whatever he may or may not have said, once there is evidence before the court that suggests a possibility that the accused’s act may have been done under provocation, the Crown is called upon to prove beyond reasonable doubt that it was not. That is the situation here. The Crown must exclude any reasonable possibility that the accused’s act may have been done under provocation .”

58   In giving the more detailed directions extracted earlier in relation to the first ground, his Honour repeated in the italicised passages, more than once, the need for the Crown to exclude beyond reasonable doubt the possibility that the killing was done under provocation. 59   In making reference, in various passages in the summing up, to the “reasonable possibility” of provocative conduct existing, his Honour did no more than advert to the evidentiary obligation that rested upon the appellant to raise provocation as an issue in the trial: Johnson (1976) 136 CLR 619 at 641. Once raised, then it rested upon the Crown to eliminate any reasonable possibility that the appellant acted under provocation: Tumanako (1992) 64 A Crim R 149. This his Honour clearly explained in a way which was above reproach.

Ground 3. Further Directions

60   The jury retired to consider their verdict on the second day of the summing up, after his Honour had taken them through the written directions. Later that day his Honour answered several jury questions, after which the proceedings were, at their request, adjourned for the day. After considering the matter overnight, his Honour indicated to Counsel that he intended to give the jury some further short directions, because he was concerned that the questions, that had been asked the preceding day, “suggested that they may be taking less than a sensible and direct route,” and they may “benefit from some further assistance”. Mr. Zahra, Counsel for the accused objected to this occurring in the absence of any request for assistance, or of any indication that the jury were deadlocked. The Crown Prosecutor, however, supported the proposal. 61   As a result, over the objection of Mr. Zarah, his Honour gave a further direction, which began with the observation:

“I apologise for breaking in on your deliberations so early, but I did get the impression yesterday afternoon that you might be having some difficulty and it occurs to me that I may be able to be of further assistance to you.
I know from my experience as a judge that it is very easy in the course of consideration of a problem to reach a stage where you become bogged down in matters of detail and tend to lose sight of the broader picture. It is, of course, not part of my function to tell you how to decide any issue in the case and I carefully refrain from doing that. I may perhaps assist you by suggesting an approach which you might take at this time.”

His Honour dealt first with the issue of intent, identifying the critical aspects of the evidence upon which the jury might concentrate. He continued:

“If you find that that approach simplifies your dealing with the question of intent, you may take a similar, if I can call it such, minimalist approach to the question of provocation, if you come to that question.
There are three aspects of the conduct of the deceased that the accused has relied on. First, his persistent talking about things generally in a manner which could be described as nagging and you may think there is no real issue that that occurred. Secondly, his supposed hitting of the accused; and thirdly, his supposed reference to the circumstances of the death of the accused’s father.
No provocative conduct is of any significance at all if you come to the conclusion that it was of such a nature that it could not have caused an ordinary person in the position of the accused to lose self-control to the extent of forming an intention to do grievous bodily harm. So a practical approach to your task at this stage may be to assume, for the moment, in favour of the accused, all of the provocative conduct on which the accused relies, bearing in mind that you have to look at it as having that degree of seriousness which the accused would have attached to it, and consider first the question whether, if all of that conduct is assumed to have occurred, it is or is not such as could have caused an ordinary person to lose self-control to the required extent.
If you conclude that it was not, if you conclude that it could not have caused an ordinary person to lose self-control, then you would no longer need to consider in detail whether either of the items of conduct which the Crown disputes actually occurred.
Only if you find provocative conduct consisting of all three types of conduct could have caused an ordinary person to lose control would you have to go further and consider whether the Crown has proved beyond reasonable doubt that any of those three kinds of conduct did not occur. If so, you would then have to consider whether whatever is left is such as to cause an ordinary person to lose control.”

His Honour concluded:

“Members of the jury, that is not offered in any way as suggesting how you should decide any issue. I am only seeking to suggest to you lines of approach which may simplify your task. I do not want you to think from anything that I have just said that you are under any pressure of time. You are entitled to take as long as you may need and I and counsel will remain available to assist you for as long as necessary”.
These directions commenced at 10.29am. and the jury retired again at 10.35am. They returned a verdict of guilty of murder that day at 2.43pm.

62   It was submitted that, by offering this ‘minimalist’ approach, his Honour risked being understood as delivering an exhortation or encouragement of the kind that would have offended against the principle established in Black (1993) 69 A Crim R 248, or alternatively was pushing the prosecution case at the expense of the defence case. 63 I am not persuaded that this was so. Having regard to the several requests made the previous day, including a request for some further explanation in relation to provocation, there was no reason in principle why his Honour should not have given such additional directions as he considered might assist the jury. There was no objection by Counsel as to the terms in which these directions were given and there was no error in them. They served to focus upon the most obvious issues, but left open the remaining matters that the jury had to consider, in relation particularly to provocation, before returning a verdict. 64 Moreover, the closing words made it plain that they were free to take whatever time they needed, and were not under pressure to return a verdict. As such, the approach taken did not offend against Black. 65   This ground is not, in my view, made out.

Grounds 4 and 5

66   These grounds were abandoned.

Ground 6 - verdict unsafe and unsatisfactory

67   This ground was pursued upon the basis of the cumulative effect of grounds 1 to 3. In view of the fact that none of those grounds has been made good, this ground must also fail.

SENTENCE

68   This aspect of the appeal was confined to the finding by his Honour that there were no special circumstances, justifying a variation of the usual ratio between the minimum and additional terms. It may be observed that trial counsel conceded that there were no such circumstances. Mr. Nicholson SC has argued that, notwithstanding that concession, his Honour should have found special circumstances in the light of the youth of the applicant, his deprived background, which saw him driven by the brutality of his father to seek refuge in a hostel at the age of sixteen years, the trauma of his father’s suicide, his severe emotional reaction to that event, his history of drug and alcohol abuse, his relatively insignificant criminal antecedents and his offer of a plea of guilty to manslaughter. 69   His Honour carefully took into account all of these matters, in assessing the length of the overall sentence. Additionally, he took into account a report of a psychiatric examination by Dr. Westmore, and the appellant’s co-operation with various programmes, while in custody, designed to moderate his anger and propensity to verbal abuse and to physical violence. 70   Together, these considerations were regarded as favourable subjective circumstances, operating in mitigation of the extremely serious objective circumstances of the offence, which his Honour, a very experienced Judge, described as “one of the most hideous crimes of murder that I have encountered”. 71   His Honour noted that the additional term, which would follow from an application of the formula in S5(2) of the Sentencing act, would “amply provide for the reasonable needs of supervision to facilitate the prisoner’s rehabilitation should he be released from custody at the expiration of the minimum term”. Although that approach assumed release at the end of the minimum term, a matter as to which there could be no certainty, I am not persuaded that, in all the circumstances of the case, his Honour erred in the exercise of his sentencing discretion, or that the sentence, as a whole, was manifestly excessive. 72   The reason for finding special circumstances is the need for a longer additional term than usual, not the need or desirability for a shorter than usual minimum term: Phelan (1993) 66 A Crim R 446. Moreover, even if special circumstances had been found, it does not necessarily follow that there needs to be a readjustment of the proportion between the minimum and additional terms requiring a reduction of the minimum term. The fallacy in this regard was identified in Bloomfield (Court of Criminal Appeal New South Wales 15 July 1998). 73   In this case it appears to me that the proper course was to give the appellant the benefit of the subjective circumstances in the way that his Honour did. Upon this basis, the overall term was in my view entirely within a legitimate exercise of his sentencing discretion. I am unpersuaded that there was any occasion to further adjust the proportion in which the overall term should be made up. 74   Although I would grant leave, I would also dismiss the appeal against sentence. 75   Accordingly, the orders which I propose are as follows:

1. Appeal against conviction dismissed.

2. Application to appeal against sentence granted, but appeal dismissed.

3. Conviction and sentence below confirmed.

76   NEWMAN J: I have had the advantage of reading the draft judgment of Wood CJ at CL and I agree with both the reasons and the orders he proposes. 77   FOSTER AJ: I have had the advantage of reading the draft judgment of Wood CJ at CL and I agree with both the reasons and the orders he proposes.

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