R v Lindsay

Case [2014] SASCFC 56

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v LINDSAY

[2014] SASCFC 56

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Peek)

3 June 2014

CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - PROVOCATION - AVAILABILITY OF DEFENCE

CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - PROVOCATION - CONDUCT CAPABLE OF AMOUNTING TO

CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - PROVOCATION - DIRECTIONS TO JURY

CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - PROVOCATION - EVIDENCE

CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - PROVOCATION - OBJECTIVE TEST: ORDINARY PERSON

CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - PROVOCATION - PROPORTIONALITY OF RESPONSE

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - NATURE AND CIRCUMSTANCES OF OFFENCE - PROVOCATION

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - SENTENCE: PARTICULAR CASES - MINIMUM TERM, NON-PAROLE PERIOD

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM  - SOUTH AUSTRALIA - DISCRETION TO REFRAIN FROM FIXING

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - TIME SPENT IN CUSTODY

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - MATERIAL RELEVANT FOR DETERMINING APPROPRIATE SENTENCE

Appeal against conviction for murder.  Application for permission to appeal against sentence. 

The appellant met the deceased whilst drinking with others and invited him to his home for further drinks.  There the deceased made two homosexual advances toward him in the presence of his female partner, their child, and two of his sisters.  After the first advance, the deceased was told the appellant was not gay and warned that violence would follow if he continued with such suggestions.  The prosecution case was that the appellant attacked and killed the deceased with a knife after he made a further, second advance.  The primary line of defence was that it was his co-accused who committed the attack whilst the appellant was elsewhere in the house.  The secondary line of defence was that the partial defence of provocation (directly inconsistent with the primary defence) was not negated and that a verdict of manslaughter should be returned.  The appellant was convicted of murder, and sentenced to life imprisonment with a 23 year non-parole period.  The co-accused was acquitted of murder and manslaughter.  The appellant appealed against conviction on the ground that the Judge’s directions on provocation were incorrect or inadequate.  The appellant also applied for permission to appeal against sentence. 

Held (Peek J, Kourakis CJ agreeing, dismissing the appeal against conviction):

1.  The Judge in directing the jury failed to address the distinction within the objective limb between the gravity of provocation (where the appellant’s personal traits must be taken into account) and the matter of loss of self-control (where, excluding age, they must…

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Details
AGLC
R v Lindsay [2014] SASCFC 56
Case
[2014] SASCFC 56
Decision Date

CaseChat Overview and Summary

The appeal concerned the conviction of Michael Lindsay for murder. Lindsay and a co-accused were charged with the murder of Andrew Roger Negre, who was found to have sustained multiple stab wounds and other injuries. The co-accused was acquitted of murder and manslaughter, convicted of assisting an offender, and gave evidence implicating Lindsay. Lindsay, who did not give evidence, was convicted of murder and appealed solely on the basis that the trial judge's directions to the jury regarding the partial defence of provocation were inadequate.

The central legal issue before the Full Court of the Supreme Court of South Australia was whether the trial judge's directions on the partial defence of provocation were legally correct and sufficiently comprehensive. Specifically, the appeal raised questions about the judge's failure to adequately identify the evidence supporting provocation, the proper application of the subjective and objective tests for provocation, the definition of "loss of self-control," the link between loss of control and the act causing death, the use of rhetorical questions that may have undermined the defence, and the jury's entitlement to rely on the co-accused's evidence. The appeal also questioned the judge's directions concerning the use of a statement made by Lindsay and the impact of prosecution submissions that allegedly misstated the law.

The Full Court found that while there may have been some deficiencies in the judge's directions regarding the partial defence of provocation, these errors did not lead to a miscarriage of justice. The Court emphasised that the prosecution's case for murder was extremely strong and that the jury's unanimous verdict of murder indicated they had found all elements of the offence proven and had not been swayed by the provocation defence. The Court noted that the defence counsel's strategy had, in part, relied on the judge leaving provocation to the jury, and that any error in this regard was intertwined with the defence's own tactical decisions.

Ultimately, the appeal against conviction was dismissed. The Court also refused permission to appeal against the sentence, finding no error in the sentencing judge's approach, noting the brutal nature of the crime, Lindsay's criminal history, and the assessment that he posed an ongoing danger to the public.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

There is no substance to this complaint.Adequacy of the Judge’s Review of the Evidence Lindsay submitted that the Judge was required to say more regarding the evidence surrounding the circumstance of his suggested loss of self-control. As discussed above, it was important that the summing up properly direct the jury on the law and provide assistance on the facts so as to enable the jury to apply the law to the facts of the case. This obligation of a judge to address the evidence and the respective cases of the prosecution and defence was dealt with by King CJ in Perks:[8] Each judge has his own style of summing up. It is always possible to criticise the omission of reference to some piece of evidence or argument relevant to a defence. But it is no part of the duty of the trial judge to argue the case for the defence any more than it is his function to argue the case for the prosecution. What is required is that the judge put the substance of the defence to the jury and explain its bearing upon the elements of the charge. Generally an adequate presentation of the defence will require some reference to the version of the critical incidents given by an accused person who has given evidence. In the more complex cases, it may also require some reference to other evidence and the bearing of that evidence upon the issues of the case and the defence to the charge. Just how far it is necessary to go must depend upon the circumstances of each case and upon the judgment of the trial judge. …[8] R v Perks (1986) 43 SASR 112, 116. An important role of a summing up is to explain the legal issues in a way that simplifies the jury’s task of applying the legal principles to the facts of the case. The law should be explained in a practical way having regard to the circumstances of the particular case.[9] As earlier discussed, it is not necessary for the Judge to identify each item of evidence or argument relevant to either the prosecution or defence.[10][9] R v Shinner (1993) 173 LSJS 384, 386; R v Perks (1986) 43 SASR 112, 116.[10] Domican v The Queen (1992) 173 CLR 555, 561. The Judge expressly dealt with the evidence relevant to the issue of provocation. The members of the jury were reminded of the evidence of Mr Negre straddling Lindsay while in the pergola area and of Lindsay’s response at that time. The members of the jury were further reminded of the evidence of the statements made by Mr Negre to Lindsay in the kitchen before the stabbing occurred. The Judge, when dealing with the accounts given by the relevant witnesses, reviewed their evidence relevant to the topic of provocation. It is also to be noted that the Judge canvassed the evidence on this topic a second time when he dealt with the versions given by each of the eye witnesses. The summing up, in particular, included a detailed and thorough review of the evidence given by Ms Mildwaters, Ms Clarke, Ashleigh Lindsay and Mr Hayes. The Judge identified the evidence pertaining to the issue of provocation. The members of the jury were given clear and adequate directions regarding the legal test for provocation and thorough directions on the facts bearing upon this issue. Rhetorical Questions

Decision

Reasons for decision

GRAY J (dissent) PEEK J (dissent)
I do not consider that any error of sentencing principle has been identified. No relevant fact has been overlooked by the Judge and it has not been suggested that regard was had to any irrelevant material. This was a particularly brutal crime committed by a man with lengthy criminal antecedents and who, on the medical evidence, represents an ongoing danger to the public. The sentence imposed by the Judge was not only well within his sentencing discretion but was fully justified in all the circumstances. I would refuse permission to appeal.Conclusion I would dismiss the appeal against conviction. I would refuse permission to appeal against sentence Appeal against conviction for murder. The appellant, Michael Lindsay, and Luke James Hutchings were jointly charged with having murdered Andrew Roger Negre (the deceased) at the appellant’s residence at 51 Qualio Avenue, Hallett Cove on 1 April 2011. On post mortem, the body of the deceased was found to have received a number of blows and multiple stab wounds to the body. The throat was also cut. The cause of death was found to be multiple stab wounds. Hutchings gave evidence that his knife was the only knife used and that it was he who cut the throat; however, he stated that he only did so in circumstances where he thought the deceased was dead, having already been stabbed by the appellant a large number of times with the same knife. Hutchings later assisted the appellant in disposing of the body and in other ways. Hutchings was acquitted of both murder and manslaughter and was convicted of assisting an offender. The appellant (who did not give evidence) was convicted of murder. He appeals against conviction solely on the basis that the Judge’s directions as to the alternative lesser verdict, or “partial defence”[14] of manslaughter due to provocation, (which was left to the jury) were incorrect or inadequate.[14] If the jury is satisfied of the requisite elements of murder, but is not satisfied that the prosecution has negated the possibility of the killing having been carried out by the accused while out of control due to provocation received from the deceased, a verdict of manslaughter rather than murder should be returned. I will sometimes refer to this doctrine as “the partial defence of provocation” or “the partial defence”. The grounds of appeal The purview of the appeal is limited to the matter of the partial defence of provocation but the grounds of appeal are comprehensive. They are as follows:1.The Learned Judge erred as a matter of law in relation to his directions as to the ‘defence’ of provocation.Particulars1.1 The Learned Judge erred in failing to direct the jury as to how provocation arose upon the version of the evidence most favourable to the accused, in failing to identify the said evidence both in relation to events on the patio and in the family room and in failing to direct the jury that the prosecution was required to negative provocation on that version.1.2 In the application of the subjective and objective test, the Learned Judge erred in failing adequately to direct the jury in relation to:(a)the need to evaluate the content and extent of the provocation from the viewpoint of the accused (cf. SU 25); and(b)the need to evaluate the gravity of the provocation having regard to the personal circumstances, life experience and attributes of the accused (cf. SU 25).1.3 The Learned Judge erred in directing the jury that loss of self control must be more than mere anger or panic (SU 25.8) and in failing to direct the jury that loss of self control could be inferred from anger, the ferocity of the attack, its suddenness and the accused’s words and actions accompanying the attack.1.4 The Learned Judge erred in directing the jury that it was required to link the loss of self control back to what the accused did without further explanation (SU 35.2).1.5 The learned Judge erred in posing for the jury rhetorical questions that wrongly and/or unfairly undermined the ‘defence’ of provocation (SU 66-67; raised 68; SU 89; raised 96-97).1.6 The Learned Judge erred in failing to direct the jury that it was entitled to rely on the evidence of the co-accused (Hutchings) in so far as it provided evidence in support of the ‘defence’ of provocation and to identify that evidence.1.7 The Learned Judge erred in his direction to the jury that the objective aspect of the ‘defence’ of provocation could be approached by the jury putting themselves in the accused’s position (SU 23.10-24).1.8 The Learned Judge erred in directing the jury that in effect provocation arose on neither the prosecution case nor the defence case (SU 26, 33, 123-124; raised 129, 131).2.The Learned Judge erred in failing to direct the jury adequately or at all in relation to the permissible and impermissible use of the evidence of the statement by the accused that “I’m going to gaol for the rest of my life, aren’t I sister girl?”, and whether it could be relied upon as disproving provocation (SU 55, 66).3.The fair trial of the applicant miscarried as a result of the prosecution submissions that the Learned Judge commended to the jury and/or did not adequately correct (SU 25.8, 35.2, 122) where such submissions contained misstatements of the law, reliance on irrelevant and extraneous matters prejudicial to the applicant and erroneous applications of the law to the facts.Particulars3.1 The prosecutor submitted that there was no doubt that there was a catalyst, that the accused was angry, that he was offended and that if he lost control that did not matter (T828-829) because: (a)in the vast majority of murders, there is a loss of temper (T828.5-6); (b)because there was a catalyst, leading to the loss of temper, that did not mean he didn’t intend to do what he did (T 828.9-12); (c)there is always a degree of loss of self control when a human being takes the life of another, and if it mattered, no one would ever get convicted of murder (T 829.28); (d)anger is not a loss of self control sufficient to take this from murder to manslaughter (T 831.28); (e)this is a man who knows exactly what he has done (T 827).3.2 The prosecution submissions tended to suggest a false dichotomy between intention to cause grievous bodily harm and provocation (T 828-829).3.3 The prosecution submitted that any suggestion of provocation was an insult to the intelligence of the jury (T830), notwithstanding that the prosecution also submitted that there was a catalyst, the accused “went too far” (T 832.3, 832.15) and he engaged in “vicious” (T 828.14) and “ferocious attacking behavior” (T834.5), and notwithstanding for example the evidence of Mr Hayes that the accused had “gone off his head like a lunatic”.4.There is a risk of a miscarriage of justice by reason of any one or combination of the grounds and particulars in grounds 1-3 above. Uncontentious events prior to the death of the deceased

Ratio Decidendi

Legal Principle Established

Established by:

The partial defence of provocation was directly contrary to the primary line of defence and the effect of the defence address was to impliedly suggest that the jury might concentrate on the partial defence of provocation; no doubt, if the Judge had indicated that he would not leave provocation, counsel would have structured his address very differently, solely relying on the primary line of defence in an unqualified fashion. It may therefore be argued that if the Judge’s decision to leave provocation is now said to have been in error (thus opening the way to the application of the proviso), then such error was also responsible for the decision of defence counsel to structure his closing address to the detriment of his primary defence. Considerations militating in favour of the application of the proviso There are a number of considerations strongly militating in favour of the application of the proviso here.The prosecution case on the charge of murder was extremely strong It is to be emphasised that the prosecution case that the appellant caused the death of the deceased by deliberately stabbing him while holding the requisite intent for murder was an extremely strong one. I will not assay an analysis of the evidence; the proposition is indisputable and was not disputed on appeal. It is notable that very experienced senior counsel for the appellant never sought to proffer any ground of appeal suggesting that the conviction of murder was vulnerable to any attack except by the route of complaint as to manslaughter not being properly left to the jury. She was clearly right in taking that approach.The fact that the jury unanimously convicted of murder In my view, the mere existence of a conviction is seldom of great assistance in relation to the application of the proviso since the very question before the court of appeal so often concerns the propriety of that conviction having regard to various errors asserted to be possibly responsible for it. However, here the situation is an unusual one. The jury were plainly instructed that they were required to find all the elements of murder proven before deciding whether the prosecution had negatived the alternative of manslaughter and their verdict demonstrates that they did so. There is no error said to attach to the conviction of the charge of murder apart from the matters pertaining to the alternative of manslaughter. There is therefore a logical way in which it can be said that this verdict does tend to confirm the Court’s own assessment that the case is a strong one. [124][124] For completeness, cases such as Gilbert The Queen (2000) 201 CLR 414 and Gillard v The Queen (2003) 219 CLR 1 stand for the proposition that a choice by the jury to convict of a charge of murder is to be viewed against a background of the alternatives available, including not only the possibility of acquittal but also the possibility of an alternative verdict of manslaughter. While primarily applying to a case where a Judge errs in failing to leave manslaughter at all, the principle may have some application where the alternative verdict is left with inadequate directions. However, in the context of the present circumstances the finding that the Judge’s directions were inadequate diminishes only to a minor degree the weight to be attached to the fact that the jury were prepared to convict of the charge of murder.