R v Leonboyer

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 275 of 1999

THE QUEEN
	v.
MICHAEL ERIK GONZALEZ LEONBOYER

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JUDGES:	PHILLIPS, C.J., CHARLES AND CALLAWAY, JJ.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	26-29 March and 4 April 2001
DATE OF JUDGMENT:	7 September 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 149

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CRIMINAL LAW – Murder – Conscious and voluntary act – Defence of involuntary action by reason of non-insane automatism – Dissociation – Possibility of jury being misled by expert medical evidence – Provocation – Objective test – Gravity of provocation – Personal characteristics of accused – Ethnicity – Whether words alone can amount to provocation – Undue involvement or interference by judge – Whether verdict unsafe or unsatisfactory.

CRIMINAL LAW – Sentence – Prisoner sentenced on incorrect factual foundation.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G.R. Flatman, Q.C. Ms K. Judd	K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr A.J. Howard, Q.C. Mr R.J. Marron	Lethbridges

PHILLIPS, C.J.:

The applicant, who is aged 29, was convicted of murder by a jury in this Court on 26 October 1999. This offence, which carried a maximum penalty of imprisonment for life, was said to have been committed at Carlton on 6 May 1997. The name of the deceased, a young woman aged 19, was Sandra Morales.

After hearing a plea for leniency the learned judge, on 5 November 1999, sentenced the applicant, who had no prior convictions, to be imprisoned for 18 years. His Honour fixed a non-parole period of 14 years and made a declaration of 914 days pre-sentence detention.

The applicant later lodged notice of application for leave to appeal against conviction pleading the following grounds.

“1.The learned trial judge erred in failing to leave the issue of provocation for determination by the jury.
2.The conviction of the accused was unsafe and unsatisfactory being against the weight of the whole of the evidence and in the result, involved a miscarriage of justice.”

On 11 December 2000, the learned Registrar allowed the further ground:

“3.The learned trial judge’s participation in the trial process by questioning of witnesses, particularly expert witnesses, together with comments by his Honour during the charge was effected in such a manner and at such times so as to cause a miscarriage of justice.”

During the course of hearing these applications leave was sought of the Court to add yet another ground:

“4.The verdict was unsafe and unsatisfactory because there is a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled as to
(a)the expert evidence concerning the applicant’s defence of automatism; and/or
(b)the relationship of that evidence to the requirement that the prosecution prove beyond reasonable doubt that the applicant killed the deceased by a conscious and voluntary act or acts.”

The applicant also lodged notice of application for leave to appeal against sentence pleading that:

“The sentence imposed is manifestly excessive in all the circumstances.”

On 11 December 2000 the learned Registrar allowed two further grounds.

”2. The learned sentencing judge erred in finding that:
iThe applicant had given false evidence as to the conversation in the bedroom with the deceased.
iiThe wounds were inflicted from behind.

3.The learned sentencing judge failed to give any or any sufficient weight to the circumstances surrounding the commission of the offence, including the disassociation, and the consequent state of mind the applicant was in.”

The applicant had undergone an earlier trial in this Court on the same presentment but the jury was unable to reach a verdict and was discharged on 21 May 1999. In that trial the learned judge, with the concurrence of counsel for the prosecution, had left the issue of provocation to the jury.

It is now necessary to set out in summary form the evidence which was adduced at the applicant’s trial. In this task I have had resort to the summary of evidence supplied to the Court, its accuracy having not been subjected to challenge. That this is a summary is to be stressed and resort will later be made to much detail of the evidence.

The applicant, who gave sworn evidence in his own defence, said he was born in Chile. He was brought up in the Catholic faith. Chile had a superstitious culture. His family moved to Australia when he was two and a half years old. From childhood, he has had night terrors – bad dreams which involve dark figures trying to take him away. He was scared of the dark and remained a bed wetter into his teens. He often slept in his brother’s bed as a child.

The applicant stated that he met the deceased in April 1994 when she was 16 years of age. He was some four or five years older. They started to see each other and ultimately commenced a sexual relationship, staying overnight together at their respective family homes two or three times a week. On occasions the deceased stayed with him in Queensland when he was studying at Bond University. They became engaged on her 18^th birthday, 11 January 1996, whereupon she moved into his mother’s house and shared a room with him.

When he first met the deceased she could not speak English and his Spanish was poor. He worked to improve it and pushed her to study focussing on improving her English. He encouraged her to repeat a year at school and in May 1997 she was in year 11. For his part, the applicant studied economics and law at Bond University. He was an “obsessive” student often working at night. He had sleeping problems and would work until he could see some light. On completing his degrees the applicant commenced a Master of Laws course at Monash University. This put him under pressure but he had almost completed it at the time of the death of the deceased.

During 1996 the applicant said his relationship with the deceased was quite “volatile” for they broke up several times. Both were jealous and he was particularly jealous of older men and men who looked at her sexually. She found his study regime boring and they were extremely intense with each other. In early 1997 they broke up when she refused to speak in English and called a friend of his family “a slut”. She returned to her family’s home with most of her belongings. After the break up, they did not sleep together until 27 March 1997. In that month the deceased spoke of having a family but said that if they were to get back together they should find a place of their own. The applicant preferred for them to live with his mother as he wished to undertake a doctorate. The pair went to Philip Island for the Easter break staying at a hotel. It was part of the applicant’s case that his affection for the deceased was demonstrated by certain matters. At the trial, through a police officer, a letter of the applicant, described as “a lead up to Easter” was read into evidence and became Exhibit “L”.

“Dear Sandra, where do I start, how does one begin to express one’s emotions? The reason I’m asking you these questions is that I don’t have any experience in these matters. I guess what I’m trying to say is that you [being the only one in this relationship that was bothered to act ‘human’]. I guess I’ve been too busy trying to be superman, but at the same time not realising that being superman also included a sense of humanity. I didn’t realise that achieving a high level of excellence at the tertiary level, both at the undergraduate and post-graduate level was insufficient to safe-guard our future. Perhaps it would have been sufficient so far as our financial security was concerned, but I’ve now realised that financial security by itself seldom fixes a lonely heart. By lonely heart I’m obviously referring to you, Sandra. Perhaps I was oblivious to the whole situation, who knows. One thing is certain, I adore and cherish you. As I have said on many occasions I cannot imagine a life without you. I want you to know that my first-class performance at Bond University, together with my ultimate selection on the Dean’s list is largely due to your patience, understanding, love and devotion. I’m convinced that I would not have been able to do it without you, which suggests that I will be eternally grateful. Busco algo que aqui no esta, necessito saber. As Catana says, ‘What am I going to do if I love you?’, te camelo, my darling, I hope you enjoy yourself this Easter weekend and finally realise that I have changed in many important respects. But more importantly I pray to God that you realise how much I love you. With love, Michael Leonboyer.” (660-1)

The applicant also relied on other affectionate correspondence and the giving of gifts.

On the Easter Saturday they had an argument and returned to Melbourne the deceased throwing away her engagement ring. However, contact resumed and they started looking for furniture. They spent the night of 10 April 1997 at the Old Melbourne Hotel and two nights at the Brighton Savoy Motel on 16 and 19 April 1997. On 21 April with the applicant’s mother they inspected a flat in St Kilda and decided to move in together and start a family. The applicant agreed to postpone his doctorate and obtained work as soon as he finished his Masters course. In the following weeks, according to the applicant, the deceased was emotionally “hot and cold”. On 3 May, a Saturday, the deceased stayed the night with the applicant and sexual intercourse occurred. On the following Monday, 5 May, they met at the Supreme Court Library and later went to his home by taxi. They drove in his car to St Kilda and the applicant signed the lease for the flat. They had dinner together and the applicant bought her some clothing. They then went to the Elgin Street Medical Centre where the deceased took a pregnancy test which proved negative. This extremely stressed the applicant. They went to his family home in Elgin Street about 8.30 p.m. and joined other family members. They were hugging on the couch and falling asleep. The deceased went to their bedroom and the applicant remained up for another 30 or 40 minutes.

Evidence about their relationship and personalities came from other witnesses. The deceased’s sister Lina denied she was a jealous person. Hermelinda Gaviria, the deceased’s mother, agreed. She could recall only one incident when the deceased expressed jealously touching the applicant. On the other hand, Frances Leonboyer, the applicant’s sister, said that the deceased was a very jealous person. Grace Leonboyer, the applicant’s mother, said the deceased was jealous.

Evidence about an incident quite late at night at the home of the deceased in the winter of 1996 was given by several witnesses. The applicant said that he had a dream about evil spirits or dark shadowy figures which were on top of him. He awoke to see the deceased, her mother and Lina. Lina said that she entered the room and saw the applicant strangling the deceased around the neck. She broke his hold possibly waking him. She had gone to the room upon hearing the deceased screaming. The deceased’s mother said that when she ran into the room the applicant was awake with his hands around her daughter’s throat. He was very frightened and was crying and shaking. They were all hysterical.

The applicant wanted to maintain a relationship with his father, Albert Gonzales-Bravo. They purchased an apartment together in Carlton. According to the applicant’s mother, she and his father had separated in 1980 after a marriage characterised by mental and physical abuse. Mistreatment of her by her husband, often in the presence of the applicant, occurred both before and after the separation. There was evidence that the father had spent two weeks in Mont Park Psychiatric Hospital in 1987 – although he disputed the need for this incarceration. According to the applicant some two or three weeks prior to the deceased’s death his father threatened him with a hammer and verbally abused him whereupon the applicant said he was shocked and wanted nothing more to do with his father. In the past, the applicant said, his father had threatened him with a machete.

In about November 1996, according to the applicant, he and the deceased bought two knives in Lakes Entrance while on a holiday there. They had gone to the local fishing shop to buy bait and other things and while doing this the applicant decided to buy a cheap knife. The deceased asked him to buy her another. The applicant did so as he wanted her to have a knife for protection purposes. The last time he saw his knife was some few weeks prior to the night the deceased died when it was on a filing cabinet in their bedroom. He could not recall whether it was then open or closed.

Fernando Richard Gonzales, a stonemason and friend of the family of the deceased, gave evidence that he had a close relationship involving sexual intercourse with the deceased for some two months prior to her death. He believed that her relationship with the applicant had broken up. On Sunday night, 4 May 1997, he had sexual intercourse with the deceased and no condom was used. He gave his age as 36 at the time of his giving evidence. This witness’s evidence appears to have been undisputed at the applicant’s trial. While he did not give evidence of his age, it would have been apparent to the jury that he was considerably older than the deceased and the applicant.

About five or ten minutes after the applicant had entered the bedroom on Monday 5 May, Grace, Frances and Albert Leonboyer heard a loud scream from the deceased. They ran to the bedroom with the applicant’s mother entering first. According to their evidence the applicant was lying flat on his back on the bed with his feet hanging off it. The deceased was lying on the end of the bed. She was heard to say “Grace, Grace, help me.” The applicant’s mother took hold of her and she stood up. The mother felt a knife. Both the applicant and the deceased had blood on them. Both looked shocked. The applicant was staring at the ceiling and looked “distorted”. His eyes were rolled back and flickering very rapidly. The deceased took two steps and stumbled and she was helped out of the room. In the hallway the deceased was heard to repeat “Why did I tell him, Grace?” Help was summoned by the emergency telephone number. Police from the Carlton and Fitzroy Police Stations attended about 20 minutes to midnight as did ambulance officers. The deceased was seen lying in the hallway opposite the bathroom and she was removed by the ambulance officers. The police officers found the applicant lying across the bed with a doona over him. He had blood on his hands which had small cuts. The applicant was handcuffed and an officer asked him how he had received the cuts. He replied “I don’t know.” He was then cautioned.

An ambulance officer noted that the applicant’s eyelids were flickering rapidly, with intermittent periods of rest. He did not respond to questions but appeared alert. This officer made a note concerning the applicant:

“?? Altered conscious state.”

The applicant’s mother showed a police officer a knife which she removed from a plastic bag containing rubbish that had been hanging on the fridge door. The knife was broken and the handle damaged. As viewed by the jury at the trial, when it became an exhibit, the blade could be rotated 360 degrees. A police officer noted a quantity of hair attached to the blade and hilt. The police gave evidence at the trial of blood smears in the bedroom but there was no evidence of knife damage outside the bed area. A number of blood stains on the doona and its cover and a bed sheet were found to consist primarily of the blood of the deceased with some blood of the applicant. Knife damage in the form of stab-like cuts were found in the deceased’s clothing and on the bed sheet. About midnight, the applicant was conveyed by ambulance to St Vincent’s Hospital whence the deceased had already been taken. The applicant did not speak in the ambulance. After arrival at the hospital the applicant was interviewed at about 12 minutes past midnight by a Detective Senior Constable Casey while on a bed. Casey made notes of their conversation. The applicant’s statements to this officer were the first of a number made by him after the events in the bedroom. The witness read his notes to the jury without objection and their accuracy was not challenged at the trial. According to the witness, the applicant said, after initially not responding, that his name was Michael Leonboyer. He then correctly gave Erik as his middle name. He said he lived at Flat 166, 20 Elgin Street Carlton. Casey then said, “Do you know what’s going on, Michael?” The applicant replied, “Not really.” Casey said, “At the moment you’re in custody, okay. Do you understand that?” The applicant said, “Yes.” The applicant was then cautioned and told he would get an opportunity to make phone calls. He replied “If I’ve done something wrong, I don’t want a phone call, I’d had everything, my girlfriend was going to leave me. I’ve got a law degree, commerce degree, own apartment, car, everything. She was going to leave me.” He then added, “I’ve got nothing without that girl. I’ve been with her three years. So many trips to Queensland that I paid for. I wanted to marry her. Since I was nine years old I’ve known what I wanted. I wanted to be a lawyer. I just want to die now. There is nothing to live for. I feel like nothingness.” He then asked the detective, “Did I hurt her badly?” The detective said, “She’s not very good, but they’re working on her now.” The applicant said, “She’s from Colombia. I taught her how to speak English. She’s only been here three years, you know. What did I do?” Casey said, “I’m not sure Michael, I wasn’t there, I can’t tell you what you did. Do you remember anything at all?” The applicant said, “I just remember fainting. My legs felt like water.” He later added, “I don’t really speak to her family, but they’ve just moved to Maribyrnong, I don’t know the address. Her mother’s name is Gaviria Hermelinda. They’ve only been there two weeks. Her mother broke up with her cousins. I just wanted to take her away from all that shit. That’s incest, you know. She used to love me so much, I was everything to her. Her cousins wanted to get with her. Her first cousin married her sister. They hated my guts.” After pointing out where he believed the deceased’s mother lived in a directory, the applicant said, at about half past one, “I’m starting to feel human again. Is there anywhere I can urinate?” Shortly thereafter a Dr Nido attended on the applicant.

I here interpolate that, around 1.15 a.m. another police officer named Kennedy was alone with the applicant for a short time. He also took notes of their conversation which he read to the jury without objection. The applicant said, “Is she all right? If anything happens I don’t want to live any more.” The detective did not respond whereupon the applicant said, “Do you believe in demons? Every time I close my eyes I see demons. I don’t understand, why does it have to be me?” Again, the detective did not respond. Some time later the applicant asked “Is she all right?” Kennedy said “I don’t know.” The applicant said, “I love her, you know.” Kennedy did not reply. The applicant said “Do you like this job?” Kennedy said, “Yes.” The applicant said, “Do you see many things like this?” Kennedy said, “Like what?” The applicant said, “Do you have – ever have nightmares about it?” Kennedy said, “No.” There was, later, discussion about the deceased’s new telephone number, around 1.34 a.m.

Casey took notes of a conversation between Dr Nido and the applicant. The doctor said, “Hi Michael, I’m Dr Nido, can you tell me what happened?” The applicant replied, “We went to real estate agent, came home, everything was okay. My mother was talking to me, my legs went watery, the police came. Everything was going to be fine.” The doctor said, “You were at home, were you, with your parents?” The applicant replied, “Yeah.” The doctor said, “When was this?” The applicant replied, “About ten.” The doctor said, “Can you remember what happened then?” The applicant replied, “Everything was a blur, I told her I loved her, she kept saying things to me, I can’t remember. My uncle was talking to me there was a knock at the door, it was the police.” The doctor said, “Have you been well in the past?” The applicant replied, “Maybe medically, but not psychologically. My father was – they told me he was in a psych ward.” The doctor said, “How long do you think you’ve had problems?” The applicant said, “Since I was born. It was just inside me.” The doctor said, “Have you had any unusual thoughts?” The applicant said, “I don’t know.” The doctor said, “Have you been treated for psychiatric illness before?” The applicant said, “My brother said yeah. My father tried to assault me with a hammer.” The doctor said, “Have you every seen a psychologist before?” The applicant said, “I don’t think so.” The doctor said, “Have you been drinking?” The applicant said, “No.” The doctor said, “Have you had any drugs or unusual substances before?” The applicant said, “No.” and added, “Is she going to be all right?” The doctor replied, “I don’t know. I don’t know.” The applicant then told the doctor that he did not know what had cut his hands (he had earlier said this to the police at his home). A little after 2.00 a.m. the applicant asked, “Is she all right now?” Casey replied, “We don’t know. She’s still upstairs.” The doctor gave evidence that she conducted a mental state examination on the applicant and concluded that his form of thought was normal and that he was able to think in an appropriate way and respond thus to questions. His speech appeared normal. His wounds were sutured. She put a question mark as to whether he had insight on that night.

A nurse from the hospital, Ms Arnol, gave evidence. She established that the applicant’s neurological signs were satisfactory. He scored 14 out of a possible 15 in a relevant test known as the Glasgow Comas Score. She recalled the applicant being put into a cubicle at about ten minutes past midnight. She obtained the ambulance officer’s notes. The applicant repeatedly asked about the condition of the deceased. At one point he said, “I don’t know why I did it. We were really happy. I had everything going for me. I just finished a double degree in arts and law. Hospital records were put to this witness and she agreed that she had put a cross against “confused”, referring to the applicant. She also said that the applicant either didn’t or wasn’t able to tell her what had brought him to the hospital. He was on occasions emotionally distressed, crying and quite upset. She allowed that in the records there was a notation from a triage nurse “Query fitting, eye movement”.

Dr Nido, having confirmed to the investigating police officers that the applicant was fit to be interviewed, Sergeant Philip Green conducted a video recorded interview with the applicant at the Homicide Squad offices commencing just before 5.00 a.m. The interview was suspended prior to 7.00 a.m. in order that the applicant speak to a lawyer. Upon its resumption, the applicant was questioned as to the events of the previous day. He described meeting the deceased at the Supreme Court Library, the signing of the lease for the flat, the evening meal and the visit to the medical centre already recounted. He described sitting on the couch at his home with the deceased and her going off to bed. He continued:

“And I went into her room and she was sleeping, I hugged her and everything was fine. After that, I just don’t remember. And my mother came on top of me, she was crying. She was telling me what had happened. I heard voices in the background and so forth. My mother gave me a hug. I told her that – I don’t know what I told her. And just everybody came in after that – everybody – ambulance, police. Then I fainted almost, … … … just didn’t want to move for a long time after that. And that’s it. Went to hospital.”

Later he was asked “What happened when you went into the room to join Sandra?” He replied, “That’s when I just told you – just hugged her, and that’s it.” He was asked, “Was Sandra already asleep when you went inside the room?” He replied, “Yes, she was. Actually, she wasn’t asleep at all. Actually, she was watching TV, but she was – we were both half asleep. So, we weren’t – no. She wasn’t asleep at all actually.” Still later he was asked, “After you hugged her, was there any conversation or discussion between the two of you?” He replied, “I can’t remember after that – after the hug.” He was asked, “What’s your last actual memory?” He replied, “That – that’s it. Just going in the bed, giving her a hug and that’s it. After that, it’s just blank.”

The applicant went on to say that his next memory was his mother giving him a hug in the bedroom. His mother looked “kind of fuzzy.” Nothing in the room then alarmed him. He didn’t see any blood. He did remember the police asking him questions and the ambulance downstairs. He said, “I didn’t want to know anything. It was like, I was in like my own trance.” He heard voices and “everything was just, you know, like crazy.” He said he had been experiencing a lot of things lately and mentioned that his father was going to hit him with a hammer and that his father had told his aunty that he was going to get a machine gun from the United States to kill the family. He described his father as a Nazi. He said there had been a lot of things going on in his life adding that it was “probably too much for me”. He described his studies and that the deceased was going to live with him. Her relationship with his family was very good but this was not so as to his relationship with her family. He spoke with disapproval of a relationship in the deceased’s family between first cousins. He denied the deceased had ever asked to call their relationship off. He said that she wanted him to marry her and that that would occur after he got a job and after they moved into the flat. Probably within the year. He was asked if he owned a knife and he replied, “Yeah. I’ve already discussed that. We bought some knives in Lakes Entrance for the purpose of defending ourselves if anything ever happens to us.” He described the knives as normal fishing knives with a fold out blade. He could not remember seeing a knife on the previous night in his bedroom. He had last seen the deceased’s knife some two weeks earlier when she took it out of her school bag. Told that his mother had allegedly found a knife on his bed that night he said that he did not know how that knife came to be there. He said he could not recall how he received cuts to his hand. He was asked if he had any recollection as to how the deceased had received the number of injuries consistent with knife wounds, but he did not answer referring to advice given him by his lawyer. He was told a knife had been located at the flat that night and he said he did not know where the other one was.

The applicant, as has been noted, gave evidence in his own defence. Referring to the pregnancy test and its negative result he said that he was extremely stressed. He wanted the deceased to be pregnant because, he said, “I thought if she was pregnant then no-one would be able to separate us.” She had agreed to keep trying.

The applicant gave evidence of what occurred in the bedroom. He said he closed the door behind him. The light and television were on. The deceased was sitting up in bed, watching the television. She was lying under a sheet and a doona. He recalled lying on the bed and giving her a hug. He could not recall what they were wearing. He also recalled asking the deceased why she had raised the topic of her family members breaking up their relationships. He was concerned that she might believe the “scare mongering” in her family. Sandra’s family told her that he was using her to assist him with his studies (she would do research for him and help him in the library) and that as soon as he finished his Masters of Law, he would leave her. He said he intended marrying her. She was very important to him. He asked her, “you’re not concerned about that happening to us? We’re different aren’t we?” She said, “I’m not sure we are”.

Continuing his evidence the applicant said that the deceased announced that she did not love him any more. She told him that she had been seeing somebody else. He asked her if she was having sex with him and she suddenly announced in extreme anger that she could “…fuck anyone she wanted to fuck. She’d been fucking someone else and that [in Spanish]…he did it better than what you did.” In cross-examination the applicant said that her disloyalty to him was “the most important thing”. In his mind, looking back, this implied that she wanted to leave him.

The applicant continued, “I don’t remember what happened after that until I found myself on the bed. I remember I felt a watery sensation all in my body and everything seemed dream-like, the situation seemed unreal. I could hear voices. Everything was distorted, it didn’t seem real.” The deceased was lying on the bed on her side, looking away from the applicant – she was “staring at herself”. In Spanish, the applicant heard the deceased say, “I don’t want to die.”

On Tuesday, 6 May, Dr Malcolm Dodd, Forensic Pathologist, conducted an autopsy of the body of Sandra Morales. Dr Dodd observed the following groupings of injuries: 1. Nine incised injuries to the head and neck, being stab wounds. These injuries were four to five millimetres in depth, penetrating the full thickness of the skin but not the skull. 2. A group of twelve incised stab-like injuries to the back of the deceased's chest. There were five injuries to the right side, four of which penetrated the lungs. Three injuries to the left side all penetrated the lungs. 3. Some single injuries: one, incised, to the groin near the pubic area, one, incised, to the right upper arm and a superficial, incised, injury to the left elbow. They were all stab wounds. Dr Dodd observed a number of abrasions to the lower limbs, such as to the knee, which may have been caused by blunt contact with a fabric, such as carpet. He also noted an internal blunt injury, to the scalp of the deceased, probably caused by contact with the floor or a wall. Dr Dodd believed that there had been an incised injury to the left breast, which was masked by surgical intervention.

The cause of death of Sandra Morales was given as acute blood loss, secondary to multiple stab injuries, compounded by the collection of blood and air within the chest cavity. Dr Dodd examined a knife (Exhibit "D"), which, in his opinion, was very capable of producing all the stab injuries he described. He observed that there were no defensive-type stab injuries to the hands or forearms of the deceased.

I here interpolate that there was some dispute among the witnesses as to whether the deceased used coarse language. Grace and Frances Leonboyer recalled the deceased using bad language. Hermelinda Gaviria, and her daughters, stated that Sandra was not the kind of person to swear or to use the word “fuck”. Miss Judith Sim, a teacher at Gilmore Secondary College, Footscray, gave evidence that she had never heard Sandra swear or use offensive language in the classroom or in the yard.

The applicant gave evidence that in the period after the violent incident in the bedroom he had flashbacks where he would experience small portions of the incident. By the time he had a conversation with a friend, Gonzalo Arellano, who visited him in prison in June 1997, the applicant said he “remembered everything”. He did not tell Arellano the entire conversation he had with Sandra Morales – he told him the “crux” of it. Arellano gave evidence that the applicant said to him that he blacked out after the deceased informed him she had been having an affair with someone else. The applicant had said he was confused by the way Sandra Morales had behaved towards him prior to the stabbing: she was amorous one second and quite distant the next. He told Arellano that, "she was playing mental games with him.", adding that the applicant was very sad and terribly upset about what had happened to Sandra. Arellano stated, "I think he [the applicant] realised that something had happened because of the commotion”, that perhaps something bad had happened to her. He added, “I think… he [the applicant] saw her walking and then thought everything was okay" In cross-examination, Arellano gave evidence that the applicant may have told him that it was his family that had observed Sandra Morales walking around. The applicant also told him that the relationship with the deceased had been very stressful for him in the weeks preceding the incident and that he had no recollection of stabbing her.

Doctor Justin Barry-Walsh, a fellow of the Royal Australian and New Zealand College of Psychiatrists and employed as a Consultant Psychiatrist with the Victorian Institute of Forensic Health at Rosanna was called by the Crown. He gave detailed evidence of his training and qualifications.

Dr Barry-Walsh gave evidence that dissociation, which is not a well-defined concept, occurs when normally integrated functions of consciousness and awareness become disorganised or split off. In a moderate form, people under great stress might feel unreal or numb. In a more extreme form a person may experience dissociative amnesia as a result of a shock cataclysm, such as an earthquake.

He said he was familiar with the legal term “automatism” as meaning an involuntary and unconscious act for which there is no will. He went on to relate that psychiatry recognises, for example, a person acting in an automatic way in a concussed state, as a result of a blow to the head. Certain epileptic states can lead to automatic behaviours. “Sleep walking” can produce automatic behaviour that could reach the legal test of automatism. Certain metabolic disorders, such as low blood sugar, can produce an automatic state.

Dr Barry-Walsh stated that, in his opinion, if a person was acting without ‘will’ there would be limitations on the kind of acts that could be performed. Disorganised behaviour, he defined, as random, purposeless behaviour. Highly organised and goal directed behaviour, for which there is clear purpose and direction, cannot be the product of an automatic state. However, occasionally people in automatic states will perform complex tasks if these are routine tasks, with which they are familiar and perform on a daily basis.

Though unlikely, Dr Barry-Walsh thought, it would be conceivable that a person in an automatic state could perform a repetitive movement to inflict wounds upon a person who is motionless. A person may act in a grossly dissociated state, without will, as a result of an extremely big surprise: a catastrophe that is overwhelmingly threatening. In his work, he had never identified somebody acting in an automatic state as a result of a psychological blow. It is conceivable but very unlikely that this would occur.

He agreed that one person could be more susceptible to dissociation than others and added that there is a literature that associates hypnotisability with a tendency to dissociate, particularly relating to dissociative disorders.

He stated that there are no physical signs that indicate that certain acts were performed in an automatic state. To determine that a person has behaved in an automatic state, it is essential to establish a reasonable and acceptable cause for that state. That person would have to be amnesic for the relevant period because being in an automatic state implies that a person is unable to process memory. It would also be necessary to identify random or disorganised behaviour and a lack of other plausible explanations for that behaviour. Flickering eyes is a sign of being agitated and distressed and feelings of watery legs, or being weak at the knees, is linked to witnessing frightening, exciting or dramatic events. A feeling of coldness or coolness in a person’s extremities can be explained in a number of ways: like rapid breathing, it may be an indication of distress. None of these physical manifestations is an indication that a person has acted in an automatic state.

In cross-examination, Dr Barry-Walsh agreed that dissociation might occur to the extent of producing automatism if a number of stresses, in combination, represent the equivalent of a catastrophic blow.

Neither Dr Barry-Walsh nor a Professor Mullen, who was also called by the Crown, had examined the applicant.

Professor Paul Mullen gave evidence that he was Professor of Forensic Psychiatry at Monash University and the Medical Director of the Victorian Forensic Mental Health Services. He gave extensive evidence as to his experience and qualifications as a psychiatrist.

Professor Mullen stated that the area of psychiatry dealing with dissociative states lacks clear definition. Dissociation describes a change in mental function where normally integrated functions are broken apart or do not function together. In normal mental function our memory, our perception of ourselves, our perception of our surrounding world and the sense of our self as an individual are all integrated and function as a whole. In dissociative states, aspects of that function are disrupted and memory may be disrupted. Dissociation is a normal mental mechanism, commonly experienced when a person is exposed to a dreadful and sudden shock, a situation of extreme distress or extreme fear. In that state people feel “unreal”. Some people dissociate more readily than others.

Continuing his evidence he said that dissociation does not deprive a person of the ability to perform willed acts. Part of the point of the dissociation is to allow you to go on acting purposefully in a situation where you would otherwise be deprived of the capacity to act, because of fear or distress.

Dissociation may affect memory so that the memory of overwhelmingly distressing, frightening or awful events is cut off. A person may respond to shock by escaping it in two ways: by wandering off in a fugue state or by turning off their memory. The fact that memory is lost does not mean that a person has not acted in a willed manner. Memory is constantly altered and changed so as to assist a person to function. Professor Mullen stated that studies suggest that between one third and one half of people who kill in a domestic situation have no memory whatsoever of the actual killing. The memory is so awful that people protect themselves against it by having amnesia. This does not indicate whether the person has acted wilfully at the time of the event.

In Professor Mullen’s opinion, there are states of being where a person can act without will. In order to determine whether an action was without purpose or will it is necessary to look at the characteristics of the activities themselves. Any complex, directed and purposeful action is difficult to conceive as being carried out by someone whose mind is so disorganised that they cannot will their actions. Simple repetitive actions, which do not require complex preparation, aim or purpose, are possible. The actions of a person acting without will most obviously have the quality of being disorganised and random.

Professor Mullen stated that post-head-injury dissociation is a common situation known to medicine, where action without will is possible. Someone may come to partial consciousness with a severe epileptic fit and, in the period following the fit, be in a state of epileptic automatism. A sleepwalker, in the state between waking and sleep, may act without the usual level or purpose, direction and will. Action by reflex is another action without will. It is possible that, following very severe shock or psychological trauma, gross disorganisation in a person’s mental function occurs such that actions can be carried out in an automatic way. However, these situations are very rare. For example, this has been described as occurring in battle situations, or as a result of disasters such as earthquakes and train accidents. In such situations you might see someone running randomly, thrashing their arms about or walking without obvious directional purpose. All of these actions would be possible in an automatic state. They do not require the person to perceive things, to integrate those perceptions, direct actions, consider actions or carry out a plan.

Professor Mullen considered that the act of opening a weapon requires direction and purpose. If random undirected actions caught the blade of a knife and opened it by chance, then it would have to be an unfortunate coincidence for the random movements of the person with the knife to parallel the random movements of the victim, such that the victim is struck ten times. If that person is aiming, directing and following their actions then there has to be purpose, direction and will behind those actions.

A portion of the book "Forensic Psychiatry: Clinical, Legal and Ethical Issues", dealing with the four basic conditions which establish non-insane automatism, was read to the jury. These conditions were: 1. It is established by the existence of a condition that is capable of compromising the consciousness of the accused, for example, a blow to the head. (In cross-examination the Professor said that you do not dissociate from a bang on the head – it is unconsciousness and concussion that result.) 2. The commission of the crime should be compatible with the actions of a person in such a disordered state of consciousness that they lack voluntary control. For example, a well-planned act is inconsistent with significant disturbances of consciousness. 3. A lack of obvious motivation or provoking events, which make the actions easily understandable as a response to the actual situation, will cast doubt on the existence of automatism. 4. The behaviour subsequent to the offence should be consistent with somebody who is unaware of his or her actions. For example, attempting to hide a crime or attempting to establish an alibi raises doubts as to how conscious the act had been. Professor Mullen agreed that psychological blows might be sufficient to bring about a compromised consciousness.

Professor Mullen gave evidence that there are people who, in response to minor frustrations and the every day difficulties of life, tend to respond by depersonalisation, derealisation and amnesia and these people are referred to as having dissociative disorders. It is plausible to say that there is a connection between a person's hypnotisability and their vulnerability to dissociate to a severe level. This hypothesis has been tested but no final conclusion has been drawn. In Professor Mullen's opinion, neither a history of sleep disturbance nor a history of childhood epilepsy, as opposed to severe epilepsy, is relevant to whether a person is more vulnerable to dissociate.

Professor Mullen said that you might expect certain physical indicators that someone had been in an automatic state. If they had recently recovered from an automatic state it is expected that they might look as if they have had a shock, they might be tremulous, perhaps have difficulty with talking, they might be staring and glassy-eyed. Many people get a feeling of watery legs after they have had a nasty experience. Flickering eyelids and "blepharospasm" is common in people who have had a nasty shock. Rapid eye movement and flickering of the eyes in someone who is not asleep is a concerning indicator of a brain lesion or something wrong with that person's brain. Eye cataplexy, he said, is a symptom of a rare sleep disorder, called narcolepsy, and is a sudden collapsing of muscle tone in the eyes so that they droop down.

In cross-examination Professor Mullen expressed scepticism in relation to psychological blow automatism, except with the most extreme of traumas, which is the majority view. Professor Mullen commented that Professor Burrows, a most eminent psychiatrist, is a general and not a forensic psychiatrist.

The defence called Professor Graham Burrows as an expert witness. He gave evidence that he is a Professor of Psychiatry at the University of Melbourne and the Director of Psychiatry and Psychology at the Austin and Repatriation Medical Centre. He gave evidence of his experience and qualifications in the field of psychiatry. Professor Burrows said he had a particular interest in the area collectively known as the ‘major mood disorders’, such as stress, anxiety and depression. He also had an interest in the biology of the brain. He was the President of the International Society of Hypnosis.

Professor Burrows defined dissociation as a disruption of the integrated functions of the mind: a splitting of consciousness, memory and identity. He stated that there is a high correlation between people who are hypnotisable and people who dissociate. Automatism is an extreme level of dissociation, and is a very rare condition.

Dissociation, he continued, is a result of a physical blow or a psychological blow, which is usually the final of an accumulation of stresses. Professor Burrows declared that the opinion of Professor Mullen, viz, that a sane mind cannot dissociate to the extent of automatism is the minority view amongst psychiatrists. Referring to Professor Mullen's view that purposive behaviour cannot stand up with automatic behaviour, Professor Burrows said that such a view is completely contrary to the whole major classification component of psychiatric disorders.

Professor Burrows said that dissociated behaviour has a purpose but a person may not be aware of what that purpose is, so that they may do something quite complicated and not know how they have done it. He stated that, unconsciously, we are able to do things that we do not consciously know at that point in time. They can come from within our brain because of previous experiences in our lives. We know that there is such a thing as the unconscious because we can demonstrate it with hypnosis. People who walk or talk in their sleep and people who are easily hypnotisable, are people who are likely to dissociate. To determine whether someone is likely to dissociate, look at their history: whether they had dissociation at previous times and how soon it occurred in life; do they dissociate at other times; are they vivid daydreamers; whether there are physical signs of dissociation, such as eye cataplexy, or rapid eye movement. Professor Burrows stated that there could be a provoking event to set off dissociation.

Professor Burrows said that he examined the applicant, taking a full family and personal history from the applicant and other family members. The applicant was also examined by a neurologist, who determined that there was no sign of adult epilepsy and nothing organically wrong with the applicant. The applicant was tested for hypnotisability by Professor Burrows, and by another defence witness Mr Robb Stanley, psychologist, each scoring independently. The applicant was in the top 20 to 25 percent of persons in relation to hypnotisability.

Professor Burrows said it was his opinion that it was highly likely that the applicant had dissociated at the time of the fatal stabbing, to the extent that he was not aware of what he was doing at the time. He came to this conclusion because of the longitudinal history of the applicant, including the previous issues of dissociation, his hypnotisability, amnesia for the event and the total picture. The history of the applicant showed him to be a young man who believed in devils and religious things in keeping with his culture and background; a man frightened of the dark with night terrors; he experienced bed wetting, night walking and trances as a child; he had major problems with his aggressive father who suffered a psychiatric disorder; the incident with his father was a major event; he frequently suffered denial; and he had an intense relationship with his future wife. He had a rigid, obsessional personality, and he was a perfectionist with a rigid sexual outlook. The relationship had been stressful with Sandra over the previous weeks and the applicant felt he had lost control, where before he had been controlling. He had bad study techniques, studying at night, and was experiencing significant sleep disturbance. He also experienced stress over the negative pregnancy test.

Professor Burrows said that the fact of the applicant having more and more fleeting glances, remembering more of the incident, was consistent with dissociation. In his opinion the applicant dissociated before the stabbing. The witness said he was concerned with the fact that the applicant had multiple cuts on his own hands, querying whether the applicant had been defending himself in his own mind at the relevant point in time, which might have been an additional terror experience for him. He further queried whether, in his mind, the applicant was attacking someone else. In cross-examination he questioned whether the deceased may have picked up the knife first.

Given the pattern of the stab wounds, Professor Burrows considered whether that pattern had anything to do with the fact that the applicant was a percussionist. (The applicant had described himself thus in his own evidence.)

Mr Robb Stanley, Clinical Psychologist and Senior Lecturer, University of Melbourne, also gave evidence. Mr Stanley stated his training and experience as a clinical psychologist.

Mr Stanley defined dissociation as a separation of the normally integrated functions of the brain so that they are running independently of each other and with a lack of awareness of each other. Hypnotisability is highly relevant to dissociation, he said. While Professor Burrows performed hypnosis on the applicant, Mr Stanley watched via a video-link. He also concluded that the applicant was highly hypnotisable. Hypnotisability is dissociation at the suggestion of a therapist. A person is unlikely to have the ability to enter a dissociative state unless they also demonstrate hypnotisability. Mr Stanley gave evidence about the results of a personality analysis - that the applicant was prone to emotional denial, extremely rigid, very judgmental and had mild persecutory beliefs, in that he thought life was harsh on him and that people had it in for him.

Mr Stanley stated that the applicant was experiencing a number of stresses at the time of testing: stress because he killed Sandra; as a result of the threats from his father and history of instability with his father; because he had lost control in the relationship with Sandra; and because his vision of his perfect world had more or less evaporated.

The witness thought that it is possible to dissociate to the level of acting automatically, though this is very rare. A person can carry out complex tasks even in a dissociated state because of parallel levels of functioning. He stated that there was no reason to believe that the applicant could not have acted automatically, locating a knife in the bedroom, opening it, if it was not already open, and stabbing a person a large number of times. He gave evidence that a person can carry out the same tasks in a dissociated state as they could in a non-dissociated state and still not have awareness or control over what they were doing.

Mr Stanley gave an unreserved opinion that the applicant had dissociated at the time of the stabbing. The evidence of the applicant's eyes rolling back and eye cataplexy were both signs, he said, of a dissociated state in the applicant at the relevant time. Other signs included the peripheral coldness that was described, lack of awareness of the cuts on his hands, apparent unawareness of the time that was passing and the aspect of amnesia.

In Mr Stanley's opinion the extent of the applicant's memory loss in the first two or three hours after the stabbing was consistent with someone who had been in a dissociated state and was gradually coming out of it, but fluctuating in and out of that state.

Mr Stanley agreed with Professor Burrows that at the time of the stabbing the applicant was so dissociated that he was not aware of what he was doing. The applicant reached for the knife because in the dissociated state he was responding to a perceived threat. Mr Stanley hypothesised that the applicant's desire to have a normal relationship with his father had already been lost and the loss of a perfect life with the deceased was a major blow - the straw that broke the camel's back. In Mr Stanley's opinion, he was certain that the applicant had dissociated to a significant degree and it was highly probable that he had acted automatically. In cross-examination Mr Stanley agreed that it was possible that the applicant stabbed the deceased simply because he was angry with whatever she had told him. In examination-in-chief he said the state of the applicant's amnesia strongly suggests that the dissociation occurred before the attack. In cross-examination he agreed that he did not know for certain when the applicant entered the state of dissociation.

Ground 1 - Provocation

As to ground 1, I have had the advantage of reading the reasons for judgment prepared by Charles, J.A. I agree with his conclusions as to this ground, essentially for the reasons given by his Honour.

Ground 2

The conviction of the applicant was unsafe and unsatisfactory and against the weight of the whole of the evidence. In the result, it involved a “miscarriage of justice”.

In introducing this ground, senior counsel for the applicant made it clear that what was sought on the applicant’s behalf was an independent assessment of the evidence by this Court in order to determine whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of murder. Reference was made to the oft cited decisions of Morris v. R.[1]; Chidiac v. R[2]; M. v. The Queen[3] and Jones v. R.[4]. It is sufficient to say that in the application no dispute occurred as to the principles to be distilled from the above authorities. To that should be added that there was no issue between the parties that the evidence at the trial of the applicant properly raised the issue of automatism and that it was clear his essential defence was that the prosecution had not proved beyond reasonable doubt that his conduct, in causing the death of the deceased, was conscious and voluntary. Counsel also submitted that, should this ground succeed, a judgment and verdict of acquittal should be entered. This Court was reminded that the required assessment must be “both as to [the] … sufficiency and … quality” of the evidence[5].
[1](1987) 163 C.L.R. 454
[2](1991) 171 C.L.R. 432
[3](1994) 181 C.L.R. 493
[4](1997) 191 C.L.R. 439
[5]Morris v. R. at 473

Addressing that part of the evidence which composed the expert evidence of Professor Mullen, Dr Barry-Walsh, Professor Burrows and Mr Stanley, counsel allowed that while the jury were not bound to accept expert evidence, it was not to be disregarded capriciously. R. v. Hall[6] was cited in this connection. It was also submitted that expert evidence fell properly to be considered in the light of the circumstances of the individual case: R. v. Walton[7]. Counsel also contended that factors to be taken into account in assessing expert evidence included the standing of the witness, the force of relevant opinions expressed and the sufficiency and credibility of the evidence upon which they are based.
[6](1998) 36 A. Crim. R. 369
[7][1978] A.C. 788

Finally, and again in introduction of this ground, counsel submitted that the legal principles relating to non-insane automatism are, for the purposes of this application, conveniently found in the decision of the High Court in The Queen v. Falconer[8]. Relevant principles, counsel for the applicant accepted, were accurately set out in a document which was prepared by the learned trial judge and counsel and given to the jury. (It was also submitted, and not gainsaid by counsel for the respondent, that a psychological or emotional blow could trigger an automatic state.)
[8](1990) 171 C.L.R. 30

The document given to the jury read in part:

“To prove the accused guilty of murder the prosecution must prove beyond reasonable doubt:
1. that the accused killed the deceased;
2.by a conscious and voluntary act or acts (that is, that the acts were the product of a conscious mind willing those acts);
3.which were deliberate;
4.with the intention, at the time of inflicting the fatal wounds, of killing the deceased or of doing her really serious injury;

5. without lawful justification or excuse.”

There followed definitions of “conscious”, “voluntary”, dissociation” and “automatism”.

Counsel for the applicant then turned to the evidence adduced at the applicant’s trial relevant to his defence of automatism (and also relevant, so it was said, to the matter of provocation raised by ground 1). Counsel assembled this evidence in the form of a number of categories. In the setting out of their detail there will be inevitably some repetition of evidence earlier described.

*          The applicant’s childhood, home life, attitudes and problems.
The relevant witnesses for this category were the applicant’s sister Frances, his brother Albert and his mother. Their evidence was the subject of comment by some of the expert witnesses. In summary, it was submitted, this evidence conveyed a picture of the applicant having had a troubled childhood and dysfunctional home life. Physical and mental abuse of him occurred. He was sensitive to the issues of sexual morality and infidelity. He had problems of sleep disturbance, anxieties and terrors and a childhood history of fits.
*          The applicant’s work ethic and achievement drive.
The relevant witnesses were the applicant’s sister Frances, his brother Albert and his mother, together with the friend, Arellano who, it will be recalled, visited him in prison when he was on remand. In summary, it was submitted that this evidence showed an obsessive work ethic and achievement drive in the applicant. He sought very high educational attainments with the ambition to become a successful lawyer. He was variously described as dedicated and passionate as to his studies and “highly driven” to succeed.
*          The applicant’s relationship with the deceased.
The relevant witnesses were Chris Tsoronis, at whose home the applicant and the deceased stayed on occasions, the applicant’s sister Frances, his brother Albert, his mother, Arellano, Esneider and Hermelinda Gaviria (the deceased’s sister and mother), Lina Morales and Claire Broderick. This evidence, it was submitted, conveyed a fluctuating relationship between the applicant and the deceased which involved in the applicant a strong commitment to love, marriage and family life and values. The applicant’s sister referred to the relationship as involving “ups and downs, quarrels and split ups”. She said they always seemed to get back together again. She referred to a short break-up in March 1997. There was reference to the applicant and the deceased spending nights at hotels or motels. Both were referred to as being jealous although Hermelinda Gaviria denied this in the deceased. There was evidence of an ostensible friendship, no more, between the deceased and Fernando Gonzales in the two months prior to her death. The applicant’s mother gave evidence that the applicant and the deceased desired the deceased to become pregnant to the applicant at a point of time which happened to be shortly prior to her death. There was other evidence that at the same time steps were taken to obtain the St Kilda apartment where the applicant and the deceased would live together and, indeed, the witness Broderick, a property manager, gave an account of showing the applicant such a place and the signing, by him, of a lease.
*The violent incident between the applicant and the deceased in mid-1996.

Lina Morales and Hermelinda Gaviria gave direct evidence as to this. The applicant and the deceased had stayed at the Gaviria home one night in the winter of 1996. They slept together. The household were awakened by screams of the deceased. They entered the couple’s bedroom and found the applicant with his hands around the throat of the deceased. Lina Morales managed to break his hold. After the event the applicant, who was crying and shaken, declared that he had been dreaming and that two dark figures had been trying to take him away.

*The incident with his father several weeks before the death of the deceased.

The relevant witnesses were the applicant’s sister Frances and brother Albert and the father himself. The applicant’s father was described as a very harsh, mean man who enjoyed terrorising the family. He repeatedly struck the children and, indeed, his wife causing black eyes. It was alleged he admired Hitler and taught Nazi practices. He was generally a tyrant. He and the applicant’s mother separated in 1980. The applicant grew up very unhappy and fearful of his father and would ask, “Why couldn’t he have a father?” The father, while admitting he was strict in bringing up the children, denied Nazi attitudes and threats to his family and alleged that he had been mistakenly arrested on an occasion in 1987 when he had been put into Mont Park Hospital for some two weeks. From the mid-1990s the applicant nevertheless tried to build up a relationship with his father and encouraged the joint purchase of an apartment. After trouble concerning the father and payments to the body corporate of the apartment building, the applicant complained that in the course of an argument his father had threatened him with a hammer (the applicant confirmed in his evidence-in-chief that this incident had occurred. The father also confirmed this but asserted he acted in self-defence.)
* Evidence relating to the evening of 5 May 1997.
This evidence fell into two parts. The first, it was submitted, revealed that prior to the applicant entering the bedroom he shared with the deceased, “everything pointed to the resolution of past relationship difficulties and to a secure emotional and financial future for the applicant with the deceased.” The second, it was submitted, revealed the applicant to have exhibited symptoms of disassociation after the stabbing leading to the reasonable inference that he was in such a state during it. The cause of the dissociation, it was contended, was a shocking revelation in the bedroom of the deceased’s infidelity, associated with sexual taunts. The relevant witnesses as to the first part were Tsoronis, the applicant’s sister Frances and brother Albert, his mother, Fernando Gonzales and Esneider, Angela and Hermelinda Gaviria. Their evidence disclosed that the family dinner on 5 May was a happy one; the applicant and the deceased were “hugging or cuddling” on the couch and they spoke of their move into the apartment. They behaved in a loving way and were falling asleep. “There was no hint of what was to come”, said the brother. Gonzales gave evidence of a sexual relationship with the deceased in the weeks preceding her death. The other witnesses, who noted the relationship, saw nothing in it other than friendship.
The relevant witnesses as to the second part were the members of the applicant’s family as above, various police and ambulance officers and Dr Nido. After the stabbing, the applicant was described as “totally unresponsive”, lying flat on his back on the bed staring at the ceiling with eyes rolled back and flickering very, very rapidly. He seemed totally numb and gone but, at times, was gibbering. The deceased was heard to say repeatedly, “Why did I tell him, Grace?” The applicant was heard to say, “I want to die, I want to die.” He was observed to have lacerations to his hands. A police officer noted that the applicant was “blinking his eyes…a slow motion…occasionally”. An ambulance officer made a note “?? altered conscious state” with respect to the applicant. The applicant told the police officer he did not know how he got the cuts on his hands. The applicant was not uncooperative with the police but could not answer some questions. Upon being taken to St Vincent’s Hospital, the applicant had dealings with a nurse, Ms Arnol.
She saw him in a cubicle not long after midnight. She noted lacerations to his right thumb and left arm. He said he could not feel his hands and feet very well and was confused as to the day and the date. Tested as to coma by application of the “Glasgow Coma Score”, he scored 14 out of 15 which was satisfactory. I have already set out the remarks he made to this witness. He repeatedly enquired, with distress, as to the condition of the deceased and Ms Arnol gave evidence that a triage nurse had noted concerning him “? hands, ? fitting, ? eye movement”. Asked by the nurse what had brought him to hospital, the applicant “wasn’t able to tell me or he didn’t tell me”.
The applicant also had conversations with some police officers. The first was at about midnight with Constable Casey, and this has already been described. The second conversation was with Kennedy and occurred about 1.15 a.m. The detail of this has already been set out. At about the same time the applicant had conversation with Dr Nido, who asked him to tell her what had happened. I have already set out the conversation which followed upon this request.
Dr Nido also gave evidence that the applicant claimed that he thought he might have a psychiatric disorder and that he might have been born that way. He referred to his father and a psychiatric problem but said that he himself had never been in a psychiatric hospital and he denied any past history of hallucinations or delusions. He said he had not taken alcohol or drugs or medication that night. The doctor considered his form of thought was normal and that he was able to think appropriately in relation to questions. She saw no reason why he should not be interviewed by the police.
In June 1997 the witness Arellano spoke with the applicant. I have already set out their conversation.
* The Knife.
The relevant witnesses were the applicant’s mother, some police, including a crime scene examiner, interviewing police, Dr Dodd (the forensic pathologist) and some of the expert witnesses. When the applicant’s mother took hold of the deceased upon entering the bedroom after the screaming was heard, she felt a knife. She subsequently placed this knife in a plastic bag containing rubbish that had been hanging on the refrigerator door. She showed it to a policeman. It was later examined by an officer of the forensic science centre. It was in a broken state. (Indeed, the learned Director showed, in the course of his submissions to this Court, that the blade could be effectively rotated some 360 degrees.) Stab type cuts were found in the deceased’s clothing and the bed sheet. Dr Dodd, who found on post mortem the injuries already recounted on the deceased, gave his opinion that the knife, which became Exhibit “D” was very capable of producing her injuries. Questioned by the police, in a record-of-interview conducted on 6 May, the applicant said that he and the deceased had bought some knives at Lakes Entrance for the purpose of defending themselves. They had fold out blades. He said that the last time he had seen the deceased with her knife was possibly two weeks prior to her death when she had taken it out of her school bag. Told of his mother’s discovery of the knife after the stabbing incident, he said he did not know how the knife came to be there. In his evidence-in-chief, the applicant confirmed his account of the purchase of the knives, dating the purchase in November of 1996. He said that the last time he had seen his knife was when it was on the filing cabinet in the bedroom a couple of weeks “before the tragic incident”. He was not aware how it had got there. It was implicit in his account of critical events in the bedroom that he had no recollection of taking up the knife and using it to stab the deceased.
(It was submitted by counsel for the applicant that the injuries to his hands were “defensive type” and it was postulated that the deceased may have obtained the knife and been holding it, perhaps fearfully, at the time of her confession of infidelity. Counsel for the applicant at trial, who was obviously familiar with such injuries, elicited from Dr Dodd that the deceased had none. Photographs of the applicant’s hand injuries were available but the matter of them being “defensive type” was never taken up with this witness. Professor Burrows also referred to this postulation, but, very properly did not venture an opinion on it. A homicide detective, Green, produced another knife, Exhibit “K” and this seems to have been treated at the trial as the knife of the deceased.)

Turning to the expert evidence at trial, it was submitted by counsel for the applicant that the evidence of Professor Burrows and Mr Stanley was both “powerful and cogent”. They were both well recognised experts and had actually examined the applicant. While Professor Mullen and Dr Barry-Walsh were also acknowledged experts, it was said, they did not have the advantage of such examination. (While this was so, nothing was overtly made of it at the trial for the reason that the applicant had apparently declined examination at their hands.) Nevertheless, it was submitted, both Professor Mullen and Dr Barry-Walsh did concede that a grossly dissociated state could occur as a result of “a dreadful and sudden shock, a situation of extreme distress or extreme fear” (Professor Mullen) or, “as a result of an extremely big surprise: a catastrophe that is overwhelmingly threatening” (Dr Barry-Walsh). In summary, as to this ground, it was submitted that the evidence of Professor Burrows and Mr Stanley, combined with that of the other evidence, apart from and including that of the applicant (and including the abovementioned concessions) meant that it was not open to the jury in all the circumstances to be satisfied beyond reasonable doubt of the guilt of the applicant.

The learned Director submitted that it was open to the jury to be satisfied beyond reasonable doubt that the applicant was not in such a dissociated state that he was not aware of what he was doing at the time he killed the deceased. He submitted further that the evidence showed the acts performed by the applicant were not random or purposeless. It was open to the jury, he contended, to regard the alleged trigger to the applicant’s acts as not capable of being properly characterised as a threatening, catastrophic or overwhelming event. It was also contended that all the evidence of matters personal to the applicant, which had been canvassed in his own evidence and that of his family members and friends, while of assistance in showing that he was suffering stress at the time of the stabbing (and explanatory of it) could nevertheless be properly regarded by the jury as not raising a reasonable doubt as to whether he was acting automatically at the critical time. The postulation that the deceased may have obtained the knife and was holding it was, it was contended, entirely without basis in the evidence. The jury had access to the knife. The evidence (witnesses McBride and Denham) was that it was in a broken condition with the blade capable of revolving 360 degrees as the Director demonstrated. Reliance was also placed on various statements of the applicant after the event, “I want to die”, “my girlfriend was going to leave me” and “maybe I loved her too much in the end”.

In the resolution of this ground I shall turn first to the evidence of the expert witnesses – Professor Mullen and Dr Barry-Walsh, Professor Burrows and Mr Stanley. The sufficiency of the learned judge’s directions as to the legal principles touching expert evidence has not been challenged on this application.

“You are not obliged, ladies and gentlemen, to accept all that a witness has said, on the one hand, or to reject it all, on the other hand. You are perfectly entitled according to your own good judgment to accept some of what a witness has said and to reject another part of what that witness has said.
You have also heard a substantial body of evidence of opinions from particularly the psychiatrists and the psychologist, and also the pathologist, Dr Dodd. Normally a witness is not entitled to express his or her opinion and is confined to describing what that witness saw or heard or did. But the law makes an exception about things beyond the knowledge of ordinary persons, such as yourself or myself; for example, in the area of psychiatry or of pathology. That is what the law calls specialist evidence. To give specialist evidence a person must first give qualifications and experience which is why you heard those specialist witnesses at the start of their evidence being asked their qualifications and their experience in their respective fields, pathology, psychology, psychiatry. A specialist witness, however, is not a judge of the facts of the case. Only you 12 good people are the judges of the facts of this case. In assessing the evidence of specialist witnesses you ask yourselves the same questions that you ask yourselves about ordinary witnesses: Is the witness truthful? Is the witness accurate and reliable? But with specialist witnesses you also ask yourselves further questions. You ask yourselves: How well qualified is the witness? How relevantly qualified is the witness? How experienced is the witness? How relevantly experienced is the witness? Upon what facts is the witness expressing the opinion? Because an opinion is only as good as the facts upon which it is based. And finally: Is the specialist fair and objective as you would expect a specialist to be or not fair and objective?
Consider the opinions of the specialists fully and carefully, giving due weight to their expertise. But this is not a trial by psychiatrist. This is a trial by jury. You are the judges of this case and the sole judges of this case. In particular, you decide whether you accept the evidence of the accused, that he has a blank about what he did. That is for you to decide. No one else. You 12. Bearing in mind the onus of proof which I shall define for you in a moment.”

It follows that the jurors would have understood that while the expert evidence was responsibly put before them for their consideration, they were not obliged to act upon it. That the defence expert witnesses were of high standing may be readily apparent. It would have also been clear that their opinions given in the trial, while forceful and expressed without reservation, were dependent for their weight upon the material on which they were based. In this connection there is no doubt that Professor Burrows’ central opinion was substantially based on the applicant’s claimed amnesia of critical events. The Professor, having given the opinion that there was a high possibility that at the time of the killing the applicant had dissociated to the extent that he was not aware of what he was doing at the time said:

“…He disassociated afterwards as shown by the information, but the question people always ask is why do you think that it occurred prior to that. It’s because of his amnesia before the event and the total picture.”

The witness later added:
“Now he in fact doesn’t remember the events beforehand and I believe that. It’s not just, you know, my feeling. I believe that’s what actually happens in disassociate states, that they can’t remember the actual trauma or the details there and he never has and also he wasn’t able to say where these cuts came from on my [sic] hands and what’s actually occurred through that whole process so I put it into the total picture. I believe he disassociated before the event.”

So, too, asked about the applicant’s claim of amnesia (and while placing reliance on other matters) Mr Stanley replied:

“There are a series of things that go along with disassociation, severe disassociation, and amnesia, spontaneous amnesia is one of them. If the events causing the person to disassociate are severe enough then it’s very likely they’ll develop either a complete or partial amnesia for those events.”

Mr Stanley also listed the applicant’s lack of memory “of the event” as one of the major stresses he appeared to exhibit according to both the witness’s own assessment and testing. Later Mr Stanley said, “The major indication that it [disassociation] occurred before the act is the fact that there is no memory at all for the attack.”

It is apparent from the content of the learned judge’s charge that the Crown Prosecutor put it squarely to the jury that the opinions of the defence experts were based upon acceptance of the truthfulness of the applicant. As to the case of Hall supra, cited on behalf of the applicant, automatism was indeed the central issue. Its facts, however, differ markedly from the case of the applicant in that not only was there ample evidence of bizarre behaviour in the accused person at relevant times, but the relevant expert evidence of a defence medical witness, while cross-examined upon, was not contradicted.

In my opinion, there were in the evidence matters which would have entitled the jury, acting responsibly and bearing in mind the burden of proof, to reject the applicant’s claim of amnesia and, consequently, the opinions of Professor Burrows and Mr Stanley. They were the applicant’s statements to family members, “I want to die, I want to die”; his statement to Constable Casey, “My girlfriend was going to leave me”, his omission to tell Arellano of the obscene language and the taunt allegedly used by the deceased, and the opinions of Professor Mullen and Dr Barry-Walsh, together with the evidence on which they were based. That evidence consisted of Dr Dodd’s findings on post mortem (which were not challenged) together with several photographs taken of the body of the deceased. Dr Dodd was shown photograph 144 which showed eight of the nine incised injuries found to the back of the deceased’s head. He was also shown photograph 145 which showed 12 incised injuries to the back of the chest. All the injuries to the back of the head and ten of the injuries to the back were in short compass. In assessing the prosecution claim, reliant on the opinions of Professor Mullen and Dr Barry-Walsh, that the patterns of these injuries evidenced purposeful, non-automatic, conduct in the applicant, it could not have escaped the jurors’ attention that the evidence on which these opinions were based was undisputed. No issue of credibility attached to it. The photographs depicting it were, to say the least, graphic.

As to the evidence of the applicant’s background and events leading up to the fatal evening, in my opinion it was open to the jury to regard it as no more than evidence creating stresses in him and explanatory of his violent reaction to the deceased’s statement of infidelity, the occurrence of which does not seem to have been disputed at the trial. So, too, if the jury found amnesia as to vital events in the applicant (or at least did not reject it) it was open to them using the evidence of Professor Mullen, to conclude that it was no more than the applicant protecting himself from any memory of his tragic conduct.

In cross-examination, the applicant accepted that the knife used to kill the deceased was his knife and that it was normally kept closed. He had last seen it on the filing cabinet near the bed about a couple of weeks before the killing. In the course of his examination-in-chief, his own counsel asked him:

“You accept you stabbed Sandra to death, don’t you?

The applicant replied:
“I accept – I accept that I stabbed her.”

Counsel then asked:
“As it turned out, you stabbed her and she died?”

The applicant replied:
“Yes, I accept that.” He added he had not the slightest recollection of the event.

In his instructions to the witness Mr Stanley, the applicant acknowledged that he believed he had killed the deceased and inflicted her fatal injuries. Later Mr Stanley was asked, “He picked up the knife because it was a knife, didn’t he?” The witness answered, “Yes.”

Again, the content of the judge’s charge shows that the Crown Prosecutor put it to the jury that they should find the applicant had picked up the knife because it was a knife and then stabbed the deceased. In cross-examination Professor Burrows was asked:

In my view, with respect, it was not open to the judge to conclude, beyond reasonable doubt, that the applicant had given false evidence as to this conversation. The jury’s verdict did not mean that the jury had disbelieved the applicant’s account of the conversation with the deceased, since it was open to the jury to have accepted that those words had been spoken, and nevertheless to have been satisfied beyond reasonable doubt that the applicant had acted consciously, voluntarily and deliberately in stabbing the deceased. It is true that his Honour then said that the applicant was not to be punished for his untruthful evidence. But his Honour nonetheless then expressly treated the applicant’s supposed false evidence as “a delimitation of the remorse you are said to feel for your victim”. It follows that the judge gave less weight to the applicant’s repeatedly expressed remorse on a foundation which was, with respect, false.

In my view ground 2(i) is made out and, error being shown, it is necessary for this Court to resentence the applicant. In the course of sentencing reasons, his Honour set out a number of matters which should be taken in the applicant’s favour on the question of sentence. The crime was plainly not premeditated, and was committed while the applicant was at least in a state of high emotion, not as a consequence of calculation. The evidence established that the applicant was indeed rigid, possessive, and controlling, with an idealised view of his relationship with the deceased and their future. His Honour found the applicant to have significant prospects for reformation. He had no prior convictions. The applicant had had an afflicted upbringing by reason of his father’s violence and abuse over many years. He had had a traumatic episode with his father only three weeks before the death of the deceased. He had a long and commendable history of study, aiming to make a worthwhile contribution to society, with all the self-denial and discipline necessary to that process. The applicant had also had the burden of a lengthy period of uncertainty and delay, including two trials, which was plainly oppressive. His Honour also found the applicant to be remorseful, although finding that this was not full remorse on the basis I have mentioned. The judge noted the submission that the applicant’s sentence should be significantly reduced because of the evidence that his fatal actions were committed in a state of significant dissociation, even if, on the jury’s verdict, short of automatism. As to this submission his Honour said “I do not agree. You knew what you were doing when you did it.” His Honour then said that he took into account in reduction of sentence the matters to which I have just referred. His Honour indicated that the pre-eminent principles in sentencing were general deterrence and reformation, and that punishment was also relevant, special deterrence being of least relevance.

The submission made in this Court was that while for sentencing purposes the applicant was to be sentenced for having killed the deceased with murderous intent, the judge nonetheless failed to give sufficient weight to the circumstances surrounding the commission of the offence, including the applicant’s dissociation and his consequent state of mind. It was submitted that his Honour, while referring to some of the matters including the special circumstances of the applicant referred to in paragraphs [10]-[14] and [78] above and his personal disturbance, failed to give sufficient weight to the combined effect of these matters. On the evidence, the deceased was an equally jealous partner in the relationship with the applicant and

had, to some extent, played “mind games” with him in the weeks leading up to her death. It cannot, I think be doubted that the applicant was in a highly-disturbed state at the time of his attack on the deceased. She had, on the evidence, had intercourse with a man other than the applicant shortly before her death, and had certainly disclosed to the applicant something of this relationship in the moments leading up to her death, notwithstanding their plans shortly to set up house together and begin a family.

In all the circumstances I would sentence the applicant to 15 years’ imprisonment for the murder of Sandra Morales, and would direct that he serve a minimum period of 11 years before becoming eligible for parole.

CHARLES, J.A.:

I have had the advantage of reading the reasons for judgment prepared by the Chief Justice. I gratefully adopt his Honour’s statement of the facts. I also would grant leave to add the proposed ground 4. I agree that grounds 2, 3 and 4 of the application for leave to appeal against conviction should fail, in substance for the reasons given by the Chief Justice. I would only add the following, in relation to ground 4.

There was an abundance of evidence upon which the jury were entitled to conclude that the applicant’s behaviour was well-directed, purposeful and logical. The applicant located a knife, which was usually kept closed, wherever it was in the bedroom. He then made a sustained attack on the deceased, largely to her back and the back of her head, striking her with the knife more than 20 times. He had a powerful motive to attack the deceased, having clearly just been told about the affair she had been having with another. The judge gave the jury directions on murder and automatism which provoked no exception at the trial. In this Court counsel for the applicant was not able to identify any error of law either in the judge’s charge, or in the chart made available to the jury with the consent of counsel. In my view the

applicant’s case on automatism was a very difficult one. It was plainly open to the jury to convict the applicant of murder on the Crown case and I do not think it surprising that the jury were apparently left with no reasonable doubt as to his guilt.

Ground 1 claimed that the judge erred in failing to leave the issue of provocation for determination by the jury. Before turning to the arguments at trial and in this Court, it is convenient to begin by setting out what was said on the subject of provocation in the judgment of Brennan, Deane, Dawson and Gaudron, JJ. in Masciantonio v. The Queen[13] -
[13](1995) 183 C.L.R. 58 at 66-67.

“A homicide, which would otherwise be murder, is reduced to manslaughter if the accused causes death whilst acting under provocation. The provocation must be such that it is capable of causing an ordinary person to lose self-control and to act in the way in which the accused did. The provocation must actually cause the accused to lose self-control and the accused must act whilst deprived of self-control before he has had the opportunity to regain his composure.
…
The test involving the hypothetical ordinary person is an objective test which lays down the minimum standard of self-control required by the law. Since it is an objective test, the characteristics of the ordinary person are merely those of a person with ordinary powers of self-control. They are not the characteristics of the accused, although when it is appropriate to do so because of the accused’s immaturity, the ordinary person may be taken to be of the accused’s age.
However, the gravity of the conduct said to constitute the provocation must be assessed by reference to relevant characteristics of the accused. Conduct which might not be insulting or hurtful to one person might be extremely so to another because of that person’s age, sex, race, ethnicity, physical features, personal attributes, personal relationships or past history. The provocation must be put into context and it is only by having regard to the attributes or characteristics of the accused that this can be done. But having assessed the gravity of the provocation in this way, it is then necessary to ask the question whether provocation of that degree of gravity could cause an ordinary person to lose self-control and act in a manner which would encompass the accused’s actions.
…
… the question is whether the provocation, measured in gravity by reference to the personal situation of the accused, could have caused an ordinary person to form an intention to kill or do grievous bodily harm and to act upon that intention, as the accused did, so as to give effect to it.”

See also Stingel v. The Queen[14]; R. v. Thorpe (No. 2)[15]; R. v. Smith (Morgan)[16].

[14](1990) 171 C.L.R. 312 at 325-6, 329.

[15][1999] 2 V.R. 719 at 724-725.

[16][2001] 1 A.C. 146 at 166-169.

As the Chief Justice has said, the applicant had undergone an earlier trial before Hampel, J. on the same presentment. During that trial, counsel for the prosecution accepted that the issue of provocation should be left to the jury. In Masciantonio, in the judgment previously referred to, their Honours said[17] that “a judge is naturally very reluctant to withdraw from a jury any issue that should properly be left to them and he is therefore likely to tilt the balance in favour of the defence.” Influenced, no doubt, by these words, Hampel, J. left the issue of provocation to the jury. When the applicant came to be tried a second time, the Crown again did not oppose the issue of provocation being put to the jury. The second judge however ruled that provocation was not open to be left in the limited circumstances of the case. His Honour described the applicant as “a jealous, controlling, possessive, rigid and judgmental person with mild (non-psychiatric) persecutory beliefs and with some idealisation of world view including of his future with Ms Morales.” His Honour found that there was plainly sufficient material to go to the jury on the subjective element of provocation, the question being whether there was sufficient on the objective criterion, that is, whether the words or acts were capable of provoking an ordinary person in the way defined by the law. His Honour then said that there was –

“On the evidence of the accused, first, a confession of infidelity, second, a statement of future unfaithful conduct, and third, a taunt; but there was no more than that.”

His Honour’s conclusion was then expressed in the following terms –
“The law allows for human frailties; thus the law of provocation. But its central tenet is respect for and protection of human life. To allow provocation to be left with the jury in the critically limited circumstances of this case would be to significantly extend the law of provocation. There is no authority, principle or fact which would warrant such a course. Such a course would significantly alter the proper balance between human imperfection and the protection of human life.”

[17]183 C.L.R. at 68.

In this Court the Director of Public Prosecutions made submissions in support of the judge’s ruling on provocation. Counsel for the applicant vigorously submitted that the Crown should not be permitted to make any such submission on appeal, not having submitted at trial that provocation was not open on the evidence. It was submitted that if at trial the prosecution had taken the view that provocation should not go to the jury, it should have said so, and that the failure on the part of the prosecutor to take this course at trial should be treated on appeal in the same way as the failure of defence counsel to take an exception to the charge at trial.[18]
[18]Cf. R. v. Wilton (1981) 28 S.A.S.R. 362 per King, C.J. at 367-368.

I do not agree. There is, as was pointed out in Lee Chun-Chuen v. The Queen[19], a practical difference between the approach of a trial judge and that of an appellate court. It is perfectly understandable, as the Court observed in Masciantonio[20], that a judge will be reluctant to withdraw from the jury any issue that should be left to them. It would, in my view, be perfectly proper for a prosecutor also to tilt the balance in favour of the defence, by raising no opposition in a case of doubt to the issue of provocation being left to the jury. But, as was said in Masciantonio in the same passage, “An appellate court must apply the test with as much exactitude as the circumstances permit.” The judge having ruled that provocation was not open on the evidence to be left to the jury, in my view the Director was clearly entitled to support that ruling in this Court.
[19][1963] A.C. 220 at 230.
[20]183 C.L.R. at 68.

The Crown submission was that this was a case involving “mere words”. Reliance was placed on Holmes v. DPP[21] where Viscount Simon said –

“In my view, however, a sudden confession of adultery without more can never constitute provocation of a sort which might reduce murder to manslaughter … 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.”

[21][1946] A.C. 588 at 600.

In Moffa v. The Queen[22], the accused was charged with the murder of his wife, and admitted the killing but claimed he had acted under provocation. The evidence of provocation was alleged to be found in an unsworn statement from the dock. The accused’s version was that married life had become unhappy and that his wife had threatened to leave him. On the morning of the killing, his wife had scornfully rejected his advances. His version continued that she had contemptuously rejected his continuing affections and said that their marriage had ended; she had boasted of promiscuous sexual conduct with men in the neighbourhood; called him “a black bastard”; thrown a telephone at him, and then thrown at him photographs of herself naked. Barwick, C.J., Stephen, Mason and Murphy, JJ. in separate judgments held that the judge had correctly left the issue of provocation to the jury. Gibbs, J., in dissent, relying on Holmes v. DPP, said[23] that it was not open to a jury to find that a reasonable man could have been provoked by the words and actions of the deceased to such an extent as to use the violence to which the applicant resorted. Barwick, C.J., Gibbs, Stephen and Mason, JJ. accepted[24] that Holmes was still good law. Mason, J. said[25] however that –

“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, particularly 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.”

[22](1977) 138 C.L.R. 601.

[23]At 616.

[24]At 605, 616, 619 and 620-622.

[25]At 620-621

In R. v. Tuncay[26] the accused was charged with the murder of his wife, they both being of Turkish background. The wife had told the accused that she intended to leave him, taking the children with her, because of his drinking of alcohol and that she would look for a man who adhered to the religious beliefs of Islam. The accused said that if she left he would commit suicide. The wife responded in words to the effect that if he did that, she would be free of him, that it would make it easier. The accused then killed his wife in a savage attack. The defence of provocation was left by the trial judge to the jury, but the Court of Appeal said that the issue of provocation should not have been left to the jury. The principal judgment was given by Hedigan, A.J.A. His Honour said[27] –

“Having regard to the statements of principle, particularly in Stingel and Masciantonio, I am of the opinion that the issue of provocation should not have been left to the jury in this case. No reasonable jury, even taking the case at its highest in terms of the evidence that might be thought to be in support of the provocation, could have concluded that any incident of the behaviour by words or conduct of the deceased could have caused an ordinary person to form an intention to inflict serious bodily harm or death. Even assessing the so-called gravity of the conduct said to constitute the provocation by reference to the relevant characteristics of the accused and, even putting it in the context as to whether the provocation that degree of gravity could cause an ordinary person to lose self-control and act in that manner, it is impossible to my mind to reach a conclusion that the deceased’s conduct could lead to the actions which here occurred.”

[26][1998] 2 V.R. 19.

[27]At 29.

In a short concurring judgment, Ormiston, J.A. said[28] –

“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.”

[28]At 20-21.

In R. v. Parsons[29], the accused, who was involved in a longstanding and bitter dispute with his estranged de facto wife, attacked the wife, stabbing her 48 times and killing her, during an adjournment of a Family Court hearing of claims to maintenance and access to children. He was charged with murder. It was suggested that the wife had smiled and laughed at the accused before the attack, and in evidence the accused said the wife had said to him immediately before the attack “we have got you now, you bastard”, and that she could do what she liked with the children. The defence relied on the stress caused by the family law proceedings. The trial judge ruled that the evidence did not raise any issue of provocation. On appeal it was held that the trial judge was right to withdraw provocation from the jury. Brooking, J.A. (with whom Phillips, C.J. and Hampel, A.J.A. agreed) said[30] -

“I doubt very much whether the words – and smile and laugh – attributed by the applicant to the victim … could be viewed as ‘provocation’ and so I doubt very much whether one is required to consider the possible response of the ordinary person. I am content, however, to deal with the case by simply asking whether the ‘provocation’ alleged to have been offered by the victim just before she was killed could in the view of a reasonable jury have met the ordinary person test. I have no doubt that the answer is that it could not.”

[29](2000) 1 V.R. 161.

[30]At [14].

In this Court reliance was also placed on R. v. Abebe[31], where the accused was charged with the murder of his ex-wife’s lover. The accused had admitted killing the deceased but relied on the defence of provocation. The accused and the deceased were Ethiopian, and the accused’s ex-wife was Eritrean. The accused in evidence said that the behaviour of his former wife and the deceased was contrary to Ethiopian custom, that there were rumours about their relationship circulating in the Ethiopian community and that this had upset him and made him ashamed. His evidence was that his ex-wife said to him, in the presence of the deceased, that she and the deceased were lovers and were going to live together and that the deceased then smiled at him in an arrogant or condescending manner, shortly before he attacked the deceased. The prosecution conceded that provocation should be left to the jury. On appeal it was held that in the consideration of the gravity of the allegedly provocative conduct the accused was entitled to have brought into consideration his ethnicity, that is, the fact that he and all the others involved were Ethiopian or Eritrean, and, to the extent that the jury accepted it, the evidence of what was occurring between the accused’s ex-wife and the deceased, the rumours in the Ethiopian community as to their relationship, and the accused’s shame and humiliation.
[31][2000] 1 V.R. 429.

The applicant’s counsel made in this Court a substantial argument, in reliance on Masciantonio, but also on Abebe (which had not been decided at the time of the trial), that in applying the objective test the gravity of the allegedly provocative conduct must be put into context by reference to the relevant characteristics and attributes of the applicant, including his age, sex, race, ethnicity, physical and mental features, personal attributes, personal relationships or past history. The relevant issues, said to support this argument were the applicant’s –

(a)troubled childhood and dysfunctional home life, including physical and mental abuse;
(b)sensitivity to the issue of sexual morality and infidelity (particularly his father’s attitude to this topic);
(c)sleep disturbance, anxieties and childhood history of fitting;
(d)obsessive work ethic and drive to achieve at a high educational level and ultimately to become a successful lawyer (which involved encouraging the deceased to perform in the same way);
(e)fluctuating relationship with the deceased ultimately involving (as he believed) a firm and lasting commitment of love, marriage, family life and values. On the evening of the stabbing, everything pointed to the resolution of past relationship difficulties and a secure emotional and financial future for the applicant with the deceased;
(f)acting in a dissociated state by grabbing the deceased around her throat while sleeping with her in mid-1996 and a significant breakdown of his relationship with his father two-and-a-half to three weeks before the death of the deceased;
(g)exposure, in a sudden and highly-charged emotional situation, to the shocking revelation of the deceased’s secret infidelity, associated with sexual taunts; and
(h)mental and physical condition following the stabbing, including his confusion and amnesia for significant events.

Particular matters relating to Chilean cultural issues were said to include the following -

(i) the importance of Chilean culture to the applicant;
(j) the importance of the family unit;
(k)corresponding with (b) above, the father’s obsession with sexual morality and the need for fidelity within the family unit;
(l)superstitions of Chilean/South American culture concerning evil spirits, devils and night terrors;
(m)jealousy in the applicant’s relationship with the deceased, evidencing the passion and intensity of the South American romantic culture.

Upon examination I should have thought that most of these matters, for example, (a), (c), (d), (e), (f), (h), (i), (j) and (l), have no apparent bearing on the gravity of the provocation here alleged. Those which might be argued to have relevance to the gravity of the provocation from the perspective of the applicant were, first, a sensitivity to the issue of sexual morality and fidelity, secondly, the applicant’s exposure to the revelation of infidelity and taunts, and thirdly, the element of jealousy in the relationship evidencing the passion and intensity of the South American romantic culture.

As to the first of these, there was a substantial body of evidence as to the father’s obsession with sexual morality and the need for morality within the family unit. For him, the biggest shame was getting pregnant and not being married. The father’s reaction to learning about a marriage breaking up, or somebody getting pregnant out of wedlock, was that he would “totally lose control” and start calling his wife a slut or a whore. He would regularly lecture his wife and children about morality and women who were unfaithful to their husbands. While all of this disclosed an obsession with sexual morality on the part of the applicant’s father, no evidence was given of any like obsession or idiosyncrasy on the part of the applicant.

As to the second issue, the applicant gave evidence, in cross-examination, of what the deceased said to him. After mentioning the confession of infidelity and the taunt (spoken in Spanish), examination-in-chief continued as follows –

“Do you remember anything after that?---I don’t remember what happened after that until I found myself on the bed. I remember I felt a watery sensation all in my body and everything seemed dreamlike, the situation seemed unreal. I could hear voices. Everything was distorted, it didn’t seem real.”

During cross-examination, after saying the deceased had told him that she had been having an affair, the cross-examination took the following form –
“You didn’t tell Mr Arellano the exact words that you say Sandra used, did you?---No, I didn’t, no.
Yet you’d remembered those words at the time you spoke to him?---That’s correct, yes.
Why didn’t you tell him the words she used?---Because that was the crux of what I always considered important.
Well, you always considered the words important, didn’t you?---No, I didn’t, no. It was the fact of disloyalty, the fact that she was having a sexual relationship with another man, that was the most important thing.
You’ve previously said, haven’t you, that you didn’t know why - - -? ---That’s correct, yes.
- - - you hadn’t told Mr Arellano all the detail?---That’s correct, yes.
Is that really still your state of mind, you don’t know why you didn’t tell it all to him?---I say with the benefit of hindsight, having had four months to think about why, it’s the fact of disloyalty, that would have been the more important thing.”

The applicant would, no doubt, have been intensely hurt by what he saw as the deceased’s disloyalty. But there was no evidence given that the applicant was in any position of particular vulnerability to the sexual taunt. Had any such evidence existed, it would surely have been produced at trial. The applicant’s lengthy record of interview was in evidence, as also his returning recollection of what had happened, given to witnesses such as Mr Arellano. The applicant himself also entered the witness box. Two psychiatrists gave lengthy evidence, during the defence case, of their examination of, and interviews with, the applicant.

In truth the evidence upon which the applicant relied on these issues said very little as to the gravity of the supposed provocation in relation to him. The evidence was that the applicant, although born in Chile, came to Australia when he was two-and-a-half years old. He grew up in an environment consistent with the family’s origins. He was extremely well-educated having regard to his university accomplishments and was plainly a civilised and sophisticated man. Counsel for the applicant, however, argued that it would have been intensely hurtful and humiliating for the applicant to be told that the deceased was having a relationship with an older man at the very time they were contemplating taking a flat together and starting a family. The applicant’s case was in effect that the deceased was living a lie while purporting to re-enter a relationship with the applicant, an extreme form of betrayal aggravated by the secrecy surrounding her dealings with the older man. But the evidence also showed that the deceased, only 19 years old, was in a difficult relationship with the applicant, who was obsessive, demanding and keen to regain control of a relationship which had recently had its difficulties.

In so far as the third element, jealousy, is concerned, again there was no evidence of any particular cultural or other idiosyncrasy on the part of the applicant. He had, as I have said, lived most of his life in Australia. Having regard to the multi-cultural nature of present Australian society, there are strong reasons in public policy militating against acceptance of the view that the fact that a man comes from a particular cultural background puts him in any special or different position with respect to provocation; cf. Green v. R.[32] and Stingel[33]. In this respect, the Director did not argue that Abebe was wrongly decided, but pointed instead to the fact that there the applicant himself had given evidence that in the Ethiopian community it was not acceptable for a married woman to sit with a man other than her husband and drink coffee without her husband being present. In contrast, the present applicant on all the evidence did not seem to be closely involved with cultural matters. In any event, as Lord Hoffman said in Smith (Morgan)[34], in a passage expressing agreement with the decision in Stingel, “male possessiveness and jealousy should not today be an acceptable reason for loss of self-control leading to homicide, whether inflicted upon the woman herself or her new lover.”
[32](1997) 191 C.L.R. 334 per Brennan, C.J. at 341, Gummow, J. at 385 and Kirby, J. at 408-409.
[33]171 C.L.R. at 327-328.
[34]At 169.

I do not approach the question of provocation on the basis of any principle that “mere words” can never amount to provocation such as would reduce the charge of murder to manslaughter.[35] Having regard rather to the statements of principle in Masciantonio, the trial judge was, I think, correct to conclude that the issue of provocation should not be left to the jury on the circumstances of this case. Hurtful and humiliating though the words used by the deceased may have been to the applicant, no reasonable jury, taking the case at its highest in terms of the evidence relied on to support provocation, could have concluded that the words used by the deceased could have caused an ordinary person to form an intention to inflict serious bodily harm or death. Even when the gravity of the conduct said to constitute provocation is assessed by reference to each of the issues relied on by defence counsel, or the relevant characteristics of the applicant, the facts described

above were not such as[36] –
“could have led an ordinary person to have lost self-control to the extent that the applicant did, inasmuch as the alleged provocative act, ‘measured in gravity by reference to the personal situation of the accused’, could not have caused ‘an ordinary person to form an intention to kill or do grievous bodily harm and to act upon that intention, as the accused did, so as to give effect to it’: Masciantonio[37].”

[35]Cf. R. v. Tuncay [1998] 2 V.R. at 20 per Ormiston, J.A.

[36]Tuncay, per Ormiston, J.A. at 20.

[37]183 C.L.R. at 69.

Ground 1 in my view therefore fails and the application for leave to appeal against conviction must be rejected.

I turn then to the application concerning sentence. I agree with the Chief Justice that ground 2(1) of the application as to sentence has been made good, for the reasons given by his Honour. I would only add that the basis of the sentence imposed by the trial judge seems to me to have been that there had in effect, been no provocative conduct at all, a view which I think was not open on the evidence.

Furthermore consideration of emotional stress is commonplace in the exercise of a sentencing discretion, as Brennan, J. observed in Neal v. R.[38].
[38](1982) 149 C.L.R. 305, at 324.

In all the circumstances I agree with the proposals for resentencing the applicant made by the Chief Justice.

CALLAWAY, J.A.:

I do not understand automatism to be limited to cases where the accused, as it were, blindly thrashed about. It is consistent with apparently purposeful conduct. A simple example is furnished in the present case by the incident in the winter of 1996.[39] Another example is that of Mrs Falconer shooting her husband.[40] Neither the evidence of Professor Mullen and Dr Barry-Walsh nor the careful reasons of the

other members of the Court have resolved the doubt I experienced[41], especially but not only when I read the evidence of Professor Burrows and Mr Stanley, that the applicant may have dissociated to such an extent as not to have had awareness or control over what he was doing.[42]

[39]Above at [16] and [140](f).

[40]R. v. Falconer (1990) 171 C.L.R. 30. See also R. v. Radford (1985) 42 S.A.S.R. 266, but note the reservation expressed by King, C.J. at 277.

[41]It is a doubt that was also experienced by one or more of the jurors at an earlier trial.

[42]I take these words from Mr Stanley’s evidence at transcript 1106-1107.

In M. v. R.[43] Mason, C.J., Deane, Dawson and Toohey, JJ. said:

“In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.”

The other members of the Court have found that the jury’s advantage in seeing and hearing the evidence, especially the evidence relating to the applicant’s amnesia, is capable of resolving any doubt that they might otherwise have experienced. I regret that I cannot travel with their Honours down that path, for this was ideally a jury question.[44] It is unfortunate, too, that the jury had to consider the issue solely in terms of non-insane automatism.

[43](1994) 181 C.L.R. 487 at 494.

[44]They were not assisted by the fact that the expert witnesses called for the Crown concentrated on voluntariness and the expert witnesses called for the defence concentrated on consciousness. Compare R. v. Radford at 275 and R. v. Falconer at 39-40, 72-73 and 83.

This is a disturbing case but, as my doubt has not been resolved, I feel obliged to apply the first sentence from M. v. R. set out above.[45] Not without hesitation, particularly as mine is a minority view, I would direct that a judgment and verdict of acquittal be entered.
[45]The “authoritative guidance” referred to at 495 begins with the second sentence I have quoted, but the first is a corollary of the second and introduces it. It is no less authoritative.

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[2001] VSCA 149

7 September 2001