R v Lindsay

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v LINDSAY
[2016] SASCFC 129
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Kelly and The Honourable Justice Blue)
8 December 2016
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - PROVOCATION - DIRECTIONS TO JURY
Appeal against conviction for murder. On 30 March 2016 the appellant was found guilty for a second time by verdict of a jury.
Where the prosecution case was that the appellant attacked and killed the deceased with a knife after a homosexual advance made to him by the deceased. Where defence case was that the appellant was not involved in the stabbing of the deceased, or even present in the immediate vicinity, and, in the alternative, if he were involved, then he was acting under provocation by the deceased. Where two main prosecution witnesses at trial. Where one of those witnesses had consumed a large amount of alcohol that night. Where the other witness was on medication for long term depression and anxiety, had taken illicit drugs before and after the incident, had a history of heavy alcohol use and admitted wishing to protect another man who was involved. Where discretionary exclusion of statement attributed to the appellant: 'I'm going to gaol for the rest of my life ...' was sought but refused.
Whether the statement should have been excluded. Whether the trial Judge erred in directing the jury on its use. Whether Judge erred by failing to give adequate directions as to the evaluation of the two main prosecution witnesses. Whether Judge erred in her directions to the jury in relation to provocation.
Held (Vanstone J, Kelly and Blue JJ concurring): appeal dismissed. No occasion to exclude the statement. No error in directions on it, or in respect of the two witnesses. Directions as to provocation were, viewed as a whole, adequate.
Criminal Law Consolidation Act 1935 (SA), referred to.
Bromley v The Queen (1986) 161 CLR 315; Green v The Queen (1997) 191 CLR 334; Holmes v Director of Public Prosecutions [1946] AC 588; Johnson v The Queen (1976) 136 CLR 619; Masciantonio v The Queen (1994-5) 183 CLR 58; Pollock v The Queen (2010) 242 CLR 233; R v Duke (1979) 22 SASR 46; Stingel v The Queen (1990) 171 CLR 312, considered.

R v LINDSAY
[2016] SASCFC 129
Court of Criminal Appeal: Vanstone, Kelly and Blue JJ

VANSTONE J: On 30 March 2016, Michael Joseph Lindsay was found guilty by verdict of a jury of the murder of Andrew Roger Negre. He now appeals against his conviction.
He complains of the admission into evidence of a statement attributed to him by a prosecution witness. He makes a number of complaints about the summing up to the jury, both in relation to the directions about that statement and in regard to the evaluation of certain witnesses whose evidence might have been affected by liquor, illicit drugs, mental instability, tiredness or sympathy for another person involved. He also asserts that the Judge’s directions regarding the partial defence of provocation were flawed.
Background
The deceased died on 1 April 2011 at the appellant’s home at Hallett Cove.
The two men were not previously known to each other. They had met in the early hours of that morning at the Hallett Cove Tavern. The appellant invited the deceased to his home to continue drinking. The deceased accepted that invitation. At the appellant’s home were gathered a number of other people. They socialised together and a good deal of liquor was consumed. Later on, while they were in the backyard under the pergola, the deceased simulated a sexual act on the appellant. The appellant indicated that he was offended at the deceased’s behaviour and told him not to do it again.
A little later, the group moved inside. There was talk of the deceased staying the night. While discussing where he might sleep, the deceased persistently told the appellant he wanted to sleep with him. He also offered to pay the appellant for sex. Witnesses described the appellant punching the deceased, who fell to the ground. There were different accounts of what followed, but it was common ground that the deceased was stabbed repeatedly and his throat was slit. Two witnesses said it was a person “Luke” who slit the deceased’s throat. He died at the house.
At trial, the principal prosecution witnesses were Nicholas Hayes and Bridgette Mildwaters. There was evidence that Hayes had taken a good deal of liquor on the night of the killing and this might have affected his recollection. Hayes was the only witness who described the appellant stabbing the deceased in the chest. He said the appellant stabbed him 15 times or more. He said that Luke then slit the deceased’s throat. The prosecution case was that it was the chest wounds which caused death. Mildwaters witnessed an attack on the deceased after he offered to pay the appellant for sex. She said the deceased was held on the ground while the appellant went through his pockets looking for his wallet. She saw Ashleigh Lindsay kick the deceased in the face. Mildwaters moved away. When she returned she asked the appellant what was going on. He said: “Don’t worry mate, he’s already dead”. At that point she saw a knife in the appellant’s hand. There was evidence of Mildwaters having a long-standing psychiatric condition and of taking amphetamine in periods both before and after the incident. She had not slept for a couple of days. She acknowledged being in love with Luke and wishing to protect him.
The appellant did not give evidence at trial. His defence emerged from cross‑examination of the prosecution witnesses. It was that it was not proved that the chest wounds, as opposed to the throat injury, caused the death and that the only evidence suggesting that the stab wounds were inflicted before the jugular was severed was that of Hayes, whose evidence as to the sequence was not to be relied upon. In the alternative, if the appellant were implicated, then he was subjected to provocation by the deceased.
Ground 1 – admission to Bridgette Mildwaters
The trial before Bampton J, from which this appeal arises, was the third trial of this charge. The first trial, before Sulan J, resulted in a conviction for murder. The Court of Criminal Appeal dismissed the appellant’s appeal, but his appeal to the High Court succeeded and a re-trial was ordered.
The second trial commenced before Nicholson J in November 2015. Nicholson J was asked to exclude part of Mildwaters’ evidence. She had given evidence of this matter at the first trial, without objection. There she said that, after the incident leading to the death, the appellant said to her, “I’m going to gaol for the rest of my life, aren’t I, sister girl” and she replied, “Yes”. Argument ensued as to the admissibility of that statement before Nicholson J. Prosecuting counsel put that it was an admission of the actus reus. Defence counsel argued that the evidence was equivocal and, therefore, might lead to unfair prejudice. Nicholson J ruled that the evidence was admissible and would not be excluded. At the second trial, Mildwaters gave evidence of that statement in almost identical terms. However, the second trial resulted in a mistrial.
At the third trial, it was anticipated that Mildwaters would give the same evidence. In accordance with s 285AB of the Criminal Law Consolidation Act 1935 (SA), the ruling of Nicholson J stood. However, when asked in court about the appellant’s statement, the witness recounted these words only:
... he came in and said to me ‘I’m going to gaol, aren’t I? and I said, ‘Yes’.
The appellant argues that the statement should have been excluded originally as being more prejudicial than probative. It is further argued that the failure to repeat the phrase “for the rest of my life” robbed the evidence of any probative value it had, because the statement became equivocal and could not be seen as the appellant reflecting on the consequences of the killing of the deceased, as opposed to merely punching him.
The ruling of Nicholson J was plainly correct. This was one of the first statements made by the appellant after the killing. It was volunteered by him. There was no prejudicial effect associated with it, apart from that arising from its probative value. It had the potential not only to implicate the appellant in the actus reus, but could be seen as an admission of a high level of culpability. That the witness did not come up to proof could not affect the correctness of the ruling.
It would be a very large step to rob the jury of evidence of what an accused person said to another after such an event. The starting point is that all relevant evidence is admissible unless an exclusionary rule or statute operates to exclude it. It is not for the prosecution to justify why such evidence should go in. That there might be competing interpretations of relevant statements or other evidence does not affect admissibility. Alternative meanings can be given by the speaker or can be suggested to the jury by counsel. Exclusion on discretionary grounds may only occur where a discretion is enlivened by illegality or impropriety, by the unfairness of using the evidence against the accused, or because the prejudicial effect of the evidence outweighs its probative value. Before any thought can be given to exclusion on that last basis, prejudicial effect over and above probative value must be identified. That is, the prejudicial effect must be “additional to or distinct from the detriment to the accused’s interests involved in the probative force of the evidence”: R v Duke (1979) 22 SASR 46, 47-48 per King CJ, Mohr J concurring.
Contrary to counsel’s argument, the statement was not equivocal. The jury was entitled to take the view that it pointed more to involvement in the killing than it did to responsibility for a punch, or several punches. The availability of more than one interpretation of such a statement does not rob it of its probative value. It was for the jury to consider the statement, along with all the other evidence.
I consider that the original ruling was correct and that the statement remained admissible even without the reference to a lifetime in gaol. In my view, the Judge was correct to leave it for the jury to interpret.
Ground 2 – directions on the admission
The next ground complains of the directions concerning the same evidence.
The initial directions in relation to the evidence were these:
[155]Likewise, you may not take the statements ‘I am going to gaol’ and ‘Don’t tell anyone’ attributed to Mr Lindsay into account in order to draw an inference that Mr Lindsay had been involved in a very violent attack unless having regard to all of the evidence you are satisfied there is no explanation for the statements attributed to Mr Lindsay other than his acknowledgment that he had been involved in a very violent attack.
...
[157]However, before you could draw these inferences from these statements, you must be satisfied beyond reasonable doubt that they were said and that the inferences argued for by the prosecution are the only rational inferences that can be drawn from what was said. So, you must first decide whether you are satisfied beyond reasonable doubt that the statements were made by Mr Lindsay. If you are satisfied beyond reasonable doubt that they were said by Mr Lindsay, the statements can only be used as evidence of statements made by a man who was aware someone had died in his house, or statements made by a man who had been involved in a violent attack, or as a statement of a man who had not lost control if you are satisfied beyond reasonable doubt that they were said and that the only rational inference to be drawn from the particular statement is the inference argued for it by the prosecution.
Having directed the jury in this way, the Judge was asked to re-direct on this topic. She agreed to do so. This direction was given:
[278]Ladies and gentlemen, can I just take a few minutes to correct and clarify a couple of matters that I said in the first part of my summing up this morning. Now, the first is I gave you a direction about certain statements attributed to Mr Lindsay and, in particular, I want to speak a little bit further about the statement attributed to him by Miss Mildwaters and that was the statement ‘I am going to gaol’ and I pointed out to you before you can draw the inference argued for by the prosecution that this is an acknowledgement by Mr Lindsay that he had been involved in a very violent attack, you must be satisfied that the statement was actually said and that the inference suggested by the prosecution is the only rational inference to be drawn. It is a matter for you what you consider the inference to be and you might think a rational inference for that statement is that it is an acknowledgement of Mr Lindsay that he had been involved in assault, or that he had nothing to do with what occurred at his home but the statement was made by him because something did happen at his home.
The appellant submits that the jury should have been directed that they should ignore the evidence because it could not help them in their deliberations. In the alternative, it is submitted that the jury should have been directed that it could not infer from the statement that the appellant was responsible for the stabbing, because that inference was not reasonably open from the equivocal nature of the statement.
What I have already said in relation to the admissibility of this evidence disposes of this ground. The statement was properly left to the jury for its consideration and interpretation. I consider the directions given (at the request of Queen’s Counsel then acting) were unduly favourable to the appellant. That is because it was wrong to tell the jury that it could not use the statement unless the inference that the appellant was involved in the stabbing was the only rational inference available from it. To instruct the jury to isolate that item of evidence and to impose upon it a threshold test – and a demanding one at that – which it must pass before it could be weighed with the other evidence was to contradict the principle that the circumstantial evidence making up the prosecution case must be considered as a whole. To direct in that manner was to treat the statement as being equivalent to a lie, whereas it was, potentially, an admission. The correct position was that the statement was simply another item of evidence to be evaluated along with the balance of the evidence. It was not in any sense critical to the reasoning to guilt. It was for the jury to evaluate it after considering counsels’ arguments about alternative complexions it could bear.
This ground fails.
Grounds 3 and 4 – warnings regarding witnesses
The appellant argues that, although the Judge gave a direction about some witnesses to the critical events having been consuming liquor, and warned of the impact of alcohol on reliability, that was mentioned early in the summing up and not reiterated in the course of discussing the evidence of Mr Hayes and Ms Mildwaters later in the charge. The direction given was this:
[15]I will turn to the topic of intoxication. It is plain that some of the witnesses who gave evidence about critical events during the night in question or the early hours of the first April had been drinking alcohol. It is also well-known that alcohol may interfere with a person’s perception of events, their ability to observe accurately what happened and their ability to recall what happened at a later time. You will certainly need to take that into account when assessing each of the witnesses who had been drinking, the memory of that witness and therefore the reliability of the witness’s evidence may be affected by the alcohol they drank that night.
There is no doubt that Hayes had been drinking heavily that day and into the night. He admitted as much. He was an important witness for the prosecution as he alone claimed to see the appellant stab the deceased with a knife. The appellant complains that the Judge failed to itemise the evidence of his drinking and failed to direct the jury that because of his intoxication, it should “scrutinise” his evidence. The appellant submits, by analogy to Bromley v The Queen (1986) 161 CLR 315, that there was a need to explain why Hayes was potentially unreliable and a need to direct the jury to scrutinise his evidence as well as consider whether his evidence should be relied on in the absence of independent support. It is further argued that the jury should have been directed not to rely on his evidence unless satisfied beyond reasonable doubt of his honesty and reliability.
In relation to Mildwaters, it is put that, because of her close relationship to Luke and because she was supposed to be on anti-psychotic medication for depression and anxiety and apparently had a long history of those conditions, as well as a history of heavy alcohol use (although she said she was not drinking that night); that she was overtired, and admitted to amphetamine use prior to and subsequent to these events, the jury should have been specifically warned about the danger that her evidence was unreliable. It was said that the jury should have been directed to scrutinise her evidence with special care before accepting it. Again, counsel relied on Bromley.
The witness under consideration in Bromley, one Carter, was a schizophrenic. It was common ground that on the night of the relevant crime he had an episode of schizophrenia and was admitted to a mental hospital. There were some proven inaccuracies in Carter’s description of the attack on the victim. The High Court rejected the proposition that witnesses with a mental disability constituted a further category of witness in respect of whom a corroboration warning was required.
Gibbs CJ, with whose reasons Mason, Wilson and Dawson JJ agreed, said this at 319:
What is required, in a case where the evidence of a witness may be potentially unreliable, but which does not fall within one of the established categories in relation to which the full warning as to the necessity of corroboration must be given, is that the jury must be made aware, in words which meet the justice of the particular case, of the dangers of convicting on such evidence. …
And, further, at the same page:
If it appears that a witness whose evidence is important has some mental disability which may affect his or her capacity to give reliable evidence, common sense clearly dictates that the jury should be given a warning, appropriate to the circumstances of the case, of the possible danger of basing a conviction on the testimony of that witness unless it is confirmed by other evidence. The warning should be clear and, in a case in which a lay juror might not understand why the evidence of the witness was potentially unreliable, it should be explained to the jury why that is so. There is no particular formula that must be used; the words used must depend on the circumstances of the case.
The Chief Justice went on to say that the risk of unreliability would have been apparent to the jury from Carter’s own evidence. The warning given by the trial Judge – not that it was dangerous to rely on his evidence, but that the jury should scrutinise Carter’s evidence – was sufficient to warn the jury of the possible danger of acting on that evidence where it was not supported.

In separate reasons agreeing that the application for special leave should be dismissed, Brennan J emphasised (at 323-4) that the “raison d'être” of the corroboration rule is that the courts have experience of reasons why persons in the established categories may be unreliable, experience going beyond that of the general public. In addition, his Honour noted that mental disorders are of various kinds and degrees. The courts have no particular knowledge of their effects on reliability.
Both the witnesses, Hayes and Mildwaters, freely acknowledged the shortcomings of their memories of the events of the night. They acknowledged there were gaps in their memories and uncertainties in their recollections, including as to the sequences of events. Hayes was not challenged about the appellant having had the knife and using it on the deceased before it was either given to Luke, or taken by him from the appellant. Indeed, apart from matters of detail arising from a comparison of his description of the events over several statements and several occasions of giving evidence, he was directly challenged only on one matter: it was put to him that the appellant was not wearing gloves at the time of the stabbing, as opposed to later. Mildwaters was not challenged in her assertion that she saw the appellant holding the knife.
The effects of liquor upon persons, including on their abilities to recall and relate events observed while intoxicated, are well known in the community. In this respect liquor is not to be compared with hard drugs, of which jurors may not have had experience, or to which they may not have been exposed. Although it is desirable to remind juries of the possible effects of liquor upon the recollections of witnesses – which the Judge did – the terms used and the extent of the cautionary words will very much depend on the particular circumstances under consideration. Where the witnesses themselves have acknowledged frailty of memory, little is required. The same can be said of Mildwaters’ evidence that she lacked sleep and had a history of depression and anxiety. Depression and anxiety can be contrasted to illnesses such as schizophrenia, which is not widely understood. These conditions and Mildwaters’ wish to protect Luke were the subject of frank admission by her and were plainly before the jury. In the circumstances of this case no additional warning about them was required.
There was another factor to consider. The appellant relied on Mildwaters’ evidence as a basis for his secondary defence of provocation. She was the only person to describe a quite heated exchange between the appellant and the deceased. It was Mildwaters who described what the jury might have considered to be the appellant’s loss of self-control. In those circumstances, care was needed to ensure that any cautionary direction did not undermine the appellant’s reliance on Mildwaters’ evidence.
In my opinion, the direction given by the Judge was apt to bring the jury’s attention to the possible impact of liquor upon witnesses’ memories. I reject the suggestion that the reference to liquor had to be reiterated each time a witness was mentioned to whom the earlier direction might have related. Summings up are long enough without introducing a requirement of repetition.
In relation to Mildwaters’ history of anxiety and depression, the Judge reminded the jury of Mildwaters’ own evidence that she took anti-psychotic medication and anti-anxiety medication arising from residual problems consequent upon a car accident. There was no suggestion that Mildwaters was at any relevant time in the midst of any episode of depression or psychosis. Indeed, the conditions which affected her were not outside the range of commonly experienced frailties shared by a great many members of the community. The Judge reminded the jury of Mildwaters’ evidence that she had not slept for a couple of days and that, because of the traumatic nature of the events, she could not recall the whole night in sequence. The Judge also summarised the chronology of the relationship between Mildwaters and Luke. In my opinion, in this case, nothing more was called for.
Ground 5 – provocation
The appellant complains of the Judge’s directions in relation to provocation. The complaint has four facets.
First, the appellant complains that, in discussing factors relevant to whether the appellant might have killed in consequence of a sudden and temporary loss of self-control, the Judge in some instances applied an onus of proof to those facts. The direction complained of was as follows:
[304]So ladies and gentlemen, when considering as part of this first question whether the prosecution has excluded beyond reasonable doubt that Mr Lindsay killed as a consequence of a sudden and temporary loss of self-control brought about by Mr Negre’s conduct, matters to be considered and about which you have heard evidence include:
·the time in which the accused reacted to Mr Negre’s conduct in the family room, was it quick, immediate or measured and contemplated.
·You would also consider the speed, ferocity, or frantic nature or otherwise of the attack.
·You would also have regard to the fact that Mr Lindsay was at the time 28 years old, an indigenous man who left school in early high school and did not work.
·You would consider the extent of Mr Lindsay’s intoxication, if any.
·You would consider the fact, if you so find, that Mr Negre’s conduct occurred in Mr Lindsay’s home which he shared with his partner Melissa Glover and their young son.
·You would consider the fact, if you so find, the provocative act occurred following Mr Lindsay’s friendliness and generosity in inviting Mr Negre to his home, in supplying him with alcohol and offering him a place to stay for the night after Mr Negre had argued with his partner Fiona Ninos, where she had become angry and had left abruptly leaving him behind.
·You would also take into account the fact, if you so find, that Mr Negre’s conduct occurred in part or in whole in the presence of Mr Lindsay’s partner and his two sisters and his friends.
·You would also take into account the fact, if you so find, that Michael Lindsay reacted angrily when Andrew Negre made the first provocative action in the patio area.
·You would also take into account the fact, if you so find, that Michael Lindsay had threatened to hit Mr Negre if he repeated his unwanted advance.
·You would also take into account the fact that, if you so find, Andrew Negre insulted Mr Lindsay in the presence of his partner, his sisters and friends with an offer to pay for sex.
·You would also take into account and so find [sic] that Mr Negre’s conduct may have been perceived as challenging Mr Lindsay’s sexuality and personal integrity in the presence of his partner, sisters and friends so as to cause greater embarrassment and anger than otherwise might have resulted if the conduct had occurred in private.
[Italics added.]
Counsel submits that the use of the expression “if you so find” effected a reversal of the onus of proof. It is argued that the jury would have understood that they should not take those factors into account unless they were proved beyond reasonable doubt, because the Judge had told the jury that where, in the course of her summing up she spoke of matters being “proved” or “satisfied”, the jury were to understand that what was meant was proof beyond reasonable doubt.
I do not consider that there was any error in what was said. The matters enumerated were uncontroversial. Of course, the jury would not take into account evidence which it did not accept. I do not consider that the jury would have seen the Judge’s words as imposing any onus of proof on it. In any event, the Judge’s directions on the onus of proof elsewhere in the summing up were correct and extensive, and often reiterated.
The next complaint is that the Judge failed to direct the jury that it was “the possibility of the ordinary man’s formation of an intention to kill or cause grievous bodily harm that mattered, not whether the ordinary man might have acted as the accused did”. Counsel suggests that this vice appears, for example, in the following direction:
[306]The second question is: has the prosecution excluded beyond reasonable doubt that Andrew Negre’s conduct was capable of causing an ordinary man in Michael Lindsay’s position, and who was subject to the provocation to which Michael Lindsay was subjected, to lose self-control and act in the way he did?
[Italics added.]
The argument is that the correct formulation is “... to lose his self-control, form the intention to kill or cause grievous bodily harm, and then act upon that intention”.
Counsel referred to several High Court authorities, including Johnson v The Queen (1976) 136 CLR 619 at 639, Masciantonio v The Queen (1994-5) 183 CLR 58 at 67, 69-70 and Green v The Queen (1997) 191 CLR 334.
It is convenient to first mention Masciantonio. There, the appellant was convicted for the murder of his son-in-law whose conduct had displeased and disappointed him. He sought out the son-in-law and, after an argument, the son‑in‑law assaulted him. The appellant then procured a knife from his car and a struggle broke out. The appellant stabbed his son-in-law, but he broke away, only to collapse nearby. The appellant went to him and stabbed him again. The trial Judge left the partial defence of provocation to the jury only in relation to the first part of the incident involving the initial stabbing.
The High Court allowed the appeal and ordered a re-trial. The majority referred to the then recently delivered decision of Stingel v The Queen (1990) 171 CLR 312. The majority noted that, although that decision proceeded under the Tasmanian Criminal Code, it was applicable to the common law jurisdictions. The majority stated the principle as follows, at 66:
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 while deprived of self-control before he has an opportunity to regain his composure.
The majority then went on to discuss the question of proportionality in the context of the objective or second limb of provocation. The Court said that the question of proportionality is absorbed in the objective limb. The majority noted that the reaction of the defendant to the provocation must not exceed what would have been the reaction of a reasonable man. Reference was made to the statement of Barwick CJ in Johnson’s case, at 639, that:
[i]n considering whether an ordinary person could have reacted in the way in which the accused did, it is the formation of an intent to kill or do grievous bodily harm which is the important consideration rather than the precise form of physical reaction.
The majority held that there was ample evidence from which a jury might conclude that the appellant lost his self-control. It was not possible to draw a distinction between the two stages of the event. Indeed, the very continuation of the attack could point to the continuation of loss of self-control.
The majority noted that in Stingel the Court had approved the statement of Viscount Simon in Holmes v Director of Public Prosecutions [1946] AC 588 at 597 that:
... the wrongful act or insult must have been capable of provoking an ordinary person not merely to some retaliation but to the degree and method and continuance of violence which produces the death.
The Court said that it was wrong, however, to place emphasis on the word “continuance”; that the word should be understood as indicating no more than that the conduct in question must have been “capable of provoking an ordinary person to retaliation of the like nature and extent as that of the accused”. The relevant question was whether an ordinary person could have lost his self-control “to the extent that the accused did”:
That is to say, 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.
The Court went on to say that whether the accused had regained his self-control before the end of the incident was not a question to be answered by reference to the ordinary man. The majority then said:
It is the nature and extent – the kind and degree – of the reaction which could be caused in an ordinary person by the provocation which is significant, rather than the duration of the reaction or the precise physical form which that reaction might take. And in considering that matter, the question whether an ordinary person could form an intention to kill or do grievous bodily harm is of greater significance than the question whether an ordinary person could adopt the means adopted by the accused to carry out the intention.
I shall not go into the facts of Green, since that decision turned on the terms of s 23 of the New South Wales Crimes Act and those provisions specifically remove from consideration the concept of proportionality.
Pollock v The Queen (2010) 242 CLR 233 concerned s 304 of the Criminal Code Act 1899 (Qld), which, effectively, codifies the common law. Speaking of Masciantonio, the Court said at [61]:
The point being emphasised in the joint reasons in Masciantonio was that the objective test concerns the nature and extent of the reaction which might be caused in an ordinary person rather than its duration or precise physical form (64). The question of whether an ordinary person could have formed the intention to kill or to do grievous bodily harm is of greater significance than the question of whether an ordinary person could adopt the means adopted by the accused to carry out the intention. So, too, the duration of the loss of self-control is of lesser significance than the capacity of the provocation to induce in the ordinary person the requisite intention. The determination of whether the prosecution has proved that an ordinary person, provoked to the degree that the accused was provoked, could not have formed the intention to kill or do grievous bodily harm and to have acted as the appellant acted does not require the jury to hypothesise the time that an ordinary person might have taken to regain composure.
As I understand these decisions, the High Court emphasises that, in assessing the objective limb of provocation, juries should understand that what is important is whether the provocative conduct could have induced in the ordinary man a loss of self-control of such magnitude as to cause him to form the intention to kill or do grievous bodily harm to the victim and to carry out that intention; as opposed to focussing on the means adopted to fulfil that intention, or the duration of the loss of self-control.
In some cases the difference between the preferred formulation and that adopted by the trial Judge in the present case might be of significance. Some modes of killing might be so repugnant to the jury that it might baulk at entertaining the notion of the ordinary man acting in that way. Similarly, the preferred formulation does not require the jury to weigh the precise time at which the ordinary man might be expected to have regained his composure. It can readily be seen that the difference in emphasis referred to by the plurality could well have an impact in the context of a two-stage incident such as occurred in Masciantonio. However, the facts were more straightforward in the present case.
Having considered the authorities relied on by the appellant for this aspect of his argument, I do not consider that the way in which the matter was put by the trial Judge was incorrect. Indeed, it will have been noted that several of the statements of principle I have reproduced from the High Court cases put the matter in the same way. I acknowledge that it would have been better had the Judge, at least initially, explained the matter in the way recommended by the High Court. But, as I have said, having regard to the facts that these events happened very quickly and that the manner of killing was not one accompanied by unusual or grotesque methods or conduct, I consider that, viewing the summing up as a whole, the expression used by the Judge would not have deflected the jury from a consideration of the relevant issues.
The next complaint is that the Judge failed to adequately relate her directions on the law of provocation to the evidence relevant to the issue.
In [304], which I set out earlier, the factual matters relevant to the first question were set out. They were the relevant matters. Further links to the relevant evidence were made in a redirection which the Judge gave soon after the jury retired. Her Honour said at [495]:
Just turning now to provocation. I will remind you that you must take into account all of the evidence that you have heard from each of the witnesses in evaluating the gravity of the conduct that was perceived by Mr Lindsay, including the matters that I have referred to earlier when I spoke about provocation. You need also to take into account those matters that you heard Brigette Mildwaters give evidence about where she said that Andrew Negre was talking down to Michael Lindsay and that he was a bragger. She also referred to him persisting in asking Mr Lindsay to sleep with him and when his persistence was rejected Mr Negre then said ‘I’ll pay you for it then’ and he also made reference to having $600 in his wallet. So, you must also take that into account in determining the gravity of the provocation that you may find. You also take into account the responses of Mr Lindsay’s partner Mel and Mr Lindsay’s responses that you heard evidence about.
It is hard to see what more could have been done. The second limb of provocation is concerned with the possible reaction of the ordinary man. I do not understand the complaint to relate to that aspect of the directions.
The final aspect of this ground is a complaint that at one point the first and second limbs of provocation were conflated, potentially leading to confusion, and also that at one point there was a reference to conduct that “would” rather than “could” cause someone to lose control.
I would classify that last as a slip of the tongue, rather than an error. If noticed at all, it would have been understood by the jury as such. Elsewhere, including in the comprehensive written directions, the test was put correctly. Counsel concedes as much. Trial counsel did not notice the slip.
As to the suggested confusion, I have read the directions in their entirety, along with the written memorandum. In my view, the directions to the jury were clear. I do not consider that the jury could have been in any doubt as to the availability of provocation, how to approach it, or the fact that the onus of proof remained on the prosecution throughout.
This ground is not made out.
Conclusion
None of the grounds have been made out. I would dismiss the appeal.
KELLY J: I agree.
BLUE J: I agree.

[2016] SASCFC 129

8 December 2016

Key Legal Topics

Areas of Law

Criminal Law

Evidence

Legal Concepts

Appeal

Charge

Sentencing