R v Lindsay
[2014] SASCFC 56
•3 June 2014
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 not). A memorandum given to the jury on the topic could not cure this defect in the summing up.
2. The Judge erred in directing the jury to “put themselves in the appellant’s position” when considering the objective limb, which created a risk that jurors might substitute their own personal standards for those of the “ordinary person”.
3. The Judge failed adequately to direct that if the jury rejected the primary defence, they could take the appellant’s intoxication, the co-accused’s evidence, and the ferocity and immediacy of the attack into account when determining whether he actually lost self-control, and that neither anger nor an intention to kill were inconsistent with the partial defence of provocation.
4. However, provocation should not have been left to the jury in all of the circumstances. While the evidence was capable of satisfying the subjective limb, no reasonable jury could have failed to find that an “ordinary person” could not have lost self-control so as to attack the deceased in the way the appellant did.
5. Although the defence address would have been structured differently if provocation had not been left to the jury, the case against the appellant was extremely strong, and the jury was instructed to consider provocation only if first satisfied that the elements of murder were proved beyond reasonable doubt. A conviction for murder was inevitable and the proviso should be applied.
Held (Gray J, dismissing the appeal against conviction):
1. The Judge’s directions accorded with settled authority and his Honour’s summing up on the objective and subjective limbs was adequate and appropriate.
2. It would have been open to the Judge not to leave provocation to the jury.
Held (Peek J, Kourakis CJ agreeing, refusing permission to appeal against sentence):
1. The Judge was entitled to fix a non-parole period of 23 years because his Honour was entitled to be satisfied that the objective and subjective features and seriousness of the offence warranted a non-parole period longer than the mandatory minimum of 20 years; accordingly, the question of whether the discretion to impose a non-parole period less than 20 years was enlivened on the facts was moot.
2. The material before the Judge concerning the appellant’s mental health justified the conclusion that the appellant was a continuing danger to the community and that it was appropriate that the sentence incorporated elements of personal and public deterrence.
Held (Gray J, refusing permission to appeal against sentence):
1. The Judge was entitled to fix a non-parole period of 23 years. His Honour was entitled to find that the killing was brutal and could not reasonably be categorised as being at the lower end of the objective range of seriousness; that the conduct of the decreased did not “substantially mitigate” the conduct of the applicant; that the applicant was an ongoing danger to the community; and that his prospects of rehabilitation were poor.
Criminal Law Sentencing Act 1988 (SA) s 32A, referred to.
Stingel v The Queen (1990) 171 CLR 312; Masciantonio v The Queen (1994-1995) 183 CLR 58; Parker v The Queen (1962-1963) 111 CLR 610; Pollock v The Queen (2010) 242 CLR 233; R v Webb (1977) 16 SASR 309; R v Perks (1986) 41 SASR 335, applied.
R v Curzon (2000) 1 VR 416; R v Radford (1986) 133 LSJS 110; R v Dunn (2006) 94 SASR 177; R v Burns (2009) 103 SASR 514; R v Thompson (2008) 21 VR 135; R v Muy Ky Chhay (1994) 72 A Crim R 1; Johnson v The Queen (1976) 136 CLR 619; Moffa v The Queen (1976-1977) 138 CLR 601; R v Hill [1986] 1 SCR 313; R v Dutton (1979) 21 SASR 356; R v Romano (1984) 36 SASR 283; R v Cooke (1985) 39 SASR 225; Green v The Queen (1996-1997) 191 CLR 334; Weiss v The Queen (2005) 224 CLR 300; R v Shinner (1993) 173 LSJS 384, discussed.
R v Tulisi [2008] SASC 306; R v Muir [2009] SASC 94; Deane-Johns v The Queen [2011] SASCFC 55; R v Petroff (1980) 2 A Crim R 101; R v Hughes (1981) 7 A Crim R 51; R v Wilson (1985) 17 A Crim R 359; R v Zikovic (1985) 17 A Crim R 396; R v Elomar (No 1) (2008) 233 FLR 222; Mulkatana v The Queen (2010) 28 NTLR 31; R v Bourke [2003] QCA 113; R v Thorpe (No 2) [1999] 2 VR 719; The Queen v R (1981) 28 SASR 321; R v McKeown [2006] VSCA 74; Van Den Hoek v The Queen (1987) 28 A Crim R 424; Gilbert v The Queen (2000) 201 CLR 414; Gillard v The Queen (2003) 219 CLR 1; R v Ironside (2009) 104 SASR 54; R v Singh (2003) 86 SASR 473; Domican v The Queen (1992) 173 CLR 555, considered.
R v LINDSAY
[2014] SASCFC 56Court of Criminal Appeal: Kourakis CJ, Gray and Peek JJ
KOURAKIS CJ: I would dismiss the appeal against conviction and refuse permission to appeal against sentence. I agree with the reasons of Peek J but would make the following additional comment.
Even though I agree with the reasons of Peek J that it was important in this case to direct the jury that the anger and ferocity of the attacks were not necessarily inconsistent with a subjective loss of self-control, I would observe that this is yet another problematic aspect of the law of manslaughter by reason of provocation. The comments of Gleeson CJ in R v Muy Ky Chhay[1] clearly expose the difficulty. Once metaphoric references to blood temperature and passions mastering reason are put aside, all that can usefully be said about what is meant by a loss of self-control, in this context, is that the killer’s emotions had substantially compromised his or her reasoning capacity. Plainly, it will never be the case that emotion has completely shut down the killer’s reasoning capacity because the manslaughter verdict is premised on an intention to kill. On the other end of the spectrum it is difficult to imagine any killing, even one committed by a psychopath, in which emotion has not interfered, at least to some extent, with the killer’s capacity to reason. The directions which must be given can do little more than leave it to the jury to delineate between self-control, and a lack of it, by making a normative judgment, in each particular case, as to whether the degree of emotional disturbance is sufficient to partially excuse the killing.
[1] (1994) 72 A Crim R 1, 8-14.
GRAY J.
Introduction
This is an appeal against conviction and an application for permission to appeal against sentence.
Michael Joseph Lindsay, the defendant and appellant, and Luke Hutchings were jointly charged and tried before Judge and jury with the murder of Andrew Roger Negre at Hallett Cove on 1 April 2011.
Lindsay was convicted of the crime of murder. Hutchings was acquitted of the charge of murder but found guilty of the lesser alternative count of assisting an offender. Hutchings has not appealed that conviction.
On the appeal against conviction, Lindsay’s primary complaint was that the Judge’s directions and summing up on the defence of provocation were materially deficient and that, as a consequence, a miscarriage of justice occurred.
Lindsay was sentenced to imprisonment for life. A non-parole period of 23 years was fixed. On the appeal against sentence, it was contended that the non-parole period was manifestly excessive. It was complained that the Judge erred in a number of respects and, in particular, in his consideration of section 32A of the Criminal Law (Sentencing) Act 1988 (SA).
Appeal against Conviction
The Prosecution Case
Lindsay and Mr Negre met by chance at the Hallett Cove Tavern in the early hours of the morning of 1 April 2011. Mr Negre accompanied Lindsay to his home at Hallett Cove, where people had gathered. This group included Hutchings and his partner Brigette Mildwaters, Lindsay’s sisters, Talia Clarke and Ashleigh Lindsay, and a friend, Nicholas Hayes. All of the above were called to give evidence. Lindsay’s partner, Melissa, was also present, but was not called as a witness.
Mr Negre, Lindsay and others in the group socialised for a number of hours. Some, including Lindsay and Mr Negre, consumed alcohol. Initially the mood was good, but that later changed.
Sometime after Mr Negre arrived at Lindsay’s home, he and Lindsay, together with others, gathered underneath the pergola at the rear of the property. At one point, Lindsay was sitting on a chair near an outdoor table. Mr Negre approached Lindsay, straddled his legs and made a thrusting motion with his hips. Lindsay responded by saying, “Don’t go doing that sort of shit or I’ll hit you”. Mr Negre apologised and said it was only a joke.
Eventually the group moved inside the house. It was agreed that Mr Negre would spend the night at Lindsay’s house. He and Lindsay discussed where he would sleep. Lindsay and Mr Negre ended up lying on the floor either side of a fireplace in the lounge room. There was no tension or conflict in the house at that time.
Later, Lindsay and Mr Negre were seen standing near the breakfast bar in the kitchen. Mr Negre was heard to say, “I’ll pay you for sex then”. Lindsay then attacked Mr Negre. It was during this attack that fatal stab wounds were inflicted. Witnesses to the incident describe Lindsay either attacking or stabbing Mr Negre while they were near the breakfast bar.
Ms Mildwaters, in her evidence in chief, recounted hearing a comment about sex and described then hearing a “terrible thud”. She turned and saw Mr Negre on the ground. He was trying to get up but could not. She saw that Lindsay was wearing gloves while Mr Negre was still on the ground. Mr Negre was telling Lindsay that he would give him money. Lindsay asked Luke Hutchings to hold Mr Negre down. She saw Lindsay going through his pockets. Ms Mildwaters told Lindsay to let Mr Negre go but Lindsay replied, “I can’t let him go, he’ll go call the cops.” Ms Mildwaters took refuge in a nearby bedroom. From there she saw Lindsay and Mr Hutchings either side of Mr Negre, who was still on the ground. She saw Lindsay with a knife in his hand.
Counsel for Lindsay asked Ms Mildwaters whether the statement by Mr Negre that he would pay Lindsay for sex could have been made outside the house. She said that it was inside and that it was said before she heard the thud. The cross-examination continued. Ms Mildwaters referred to Lindsay by the name Sun Sun:
Q. I suggest to you that you never saw Sun Sun with a knife.
A. I did.
Q. Might you have been mistaken about that.
A. No, there is no way.
Q. How many people did you see with a knife.
A. One.
Q. Well, I suggest it wasn't Sun Sun.
A. I know it was.
Q. Was this before or after you'd left the room.
A. After I'd left the room.
Q. Why did you leave the room.
A. Because of the violence.
Q. You were shocked by this, weren't you.
A. I was more than shocked. I was terrified.
…
A. Well Luke - Sun Sun yelled out to [Hutchings] to come and hold [Mr Negre’s] legs down while they searched his pockets.
Q. You saw that.
A. Yes. It's in my statement.
Q. So you say that [Hutchings] was in the room when you left to go into the bedroom.
A. Yes.
Q. For the first time.
A. Yes.
Q. What's the last thing that night that you saw of Sun Sun. After all this, what do you say was the last thing you saw of him.
A. He came into my room - where I was in my room, and he said 'I'm going to gaol for the rest of my life, aren't I, sister girl?' and I said 'Yes'.
Q. Did not happen, I suggest.
A. Pardon?
Q. Did not happen.
A. It did.
Ms Clarke described Mr Negre standing near the kitchen bench. She then saw him on the floor, with Lindsay kicking him. Ms Clarke attempted to intervene but was told to stay out of it. She then walked out of the room and went to the bedroom of Lindsay and Melissa. She lay down on the bed, put earphones on, and listened to music. People came into the room and at some point, Lindsay entered the bedroom with Ashleigh. Lindsay walked into the bathroom and had a shower.
Ashleigh described Lindsay kicking Mr Negre to the head and stomach. She saw Lindsay hitting Mr Negre repeatedly. She saw Lindsay holding a knife. She saw Lindsay stomping on Mr Negre’s head and banging his head into the floor. She too sought refuge in a nearby bedroom. Her evidence included the following:
Q. Was there any trouble at the house that night between Andrew and anyone else.
A. Yeah.
Q. Who was the trouble between, Andrew and who else.
A. Sun Sun.
Q. What did you see.
A. Just seen Sun Sun kicking him.
Q. Where was Andrew when Sun Sun was kicking him.
A. On the ground.
Q. Did you see what happened that caused him to be on the ground.
A. No.
…
Q. When this was happening, which way was Andrew's face pointed. By that I mean was he on his stomach, back or side, or some other position.
A. On his stomach.
Q. What was he doing as Sun Sun was kicking him in the head.
A. Nothing.
…
Q. You told us about seeing Sun Sun hitting the man Andrew three or four times, and I asked you what happened from there. What is the next thing.
A. Seeing him and Luke pulling the knife away from each other, then Luke ended up with it and cut his throat.
Q. Are you all right to keep going.
A. Yeah.
Q. When was the first time that you saw a knife.
A. When Sun Sun and Luke had it.
Q. What did you actually see them doing between them with the knife. Can you try and describe it for us.
A. They were pulling it away from each other, like (INDICATES).
…
Q. At any stage during any of this, did you notice anything on Sun Sun's hands.
A. Yeah, gloves.
Q. What was Sun Sun doing when you saw the gloves on his hands.
A. Nothing.
Q. Was it before or after Luke cut Andrew's throat.
A. I can't remember.
Q. What was happening at the house at the time that you saw Sun Sun with gloves on.
A. Can you say that again?
Q. What was happening at the house at the time you saw Sun Sun with the gloves on. Do you want me to repeat the question?
A. Yeah.
Q. When you saw Sun Sun wearing gloves, what was going on at the house at that stage.
A. I don't know.
Mr Hayes heard Mr Negre say, “I’ll pay you guys for sex”. He said it was directed at everybody, rather than being directed at Lindsay. He saw Lindsay approach Mr Negre and say, “What the fuck did you say, cunt?” He saw Lindsay strike Mr Negre, who fell to the floor. He saw Lindsay stab Mr Negre multiple times to the chest with a knife. He said Lindsay had gloves on while stabbing Mr Negre.
Mr Negre sustained multiple penetrating stab wounds. One group of wounds was in the region of the right upper arm and chest. A second group was located over the abdomen. The stab wounds were associated with two significant injuries to the aorta. One completely severed the aorta, another caused a half thickness cut to that vessel. The wounds to the aorta caused massive blood loss, leading to unconsciousness within 20 to 30 seconds, and death within two to three minutes.
The Defence Cases
Lindsay did not give evidence. Through his counsel, however, it was suggested to the witnesses that they were mistaken when they claimed Lindsay attacked Mr Negre as he lay on the floor near the breakfast bar, and that they were mistaken when they asserted Lindsay stabbed Mr Negre during that attack. Lindsay contended that Hutchings’ evidence supported a defence of provocation.
Hutchings gave evidence in his own defence. He denied playing any part in the death of Mr Negre. Hutchings gave evidence of seeing Lindsay inflicting multiple stab wounds to Mr Negre’s body. He admitted inflicting a wound to the throat of Mr Negre but claimed that when this act occurred, Mr Negre was already dead. Hutchings acknowledged that he had assisted in the removal of the body and the cleaning up of the scene of the stabbing. Hutchings’ evidence included the following:
Q. Did you see any argument or trouble between any of the people who were outside there in the pergola area.
A. No, no.
Q. Did you stay out in that area for the whole time.
A. No.
Q. Where did you go.
A. Back into my room.
…
Q. You said Sun Sun punched Andrew.
A. Yep.
Q. Whereabouts on his body did he punch him.
A. In the face.
Q. How many times.
A. Twice.
Q. What happened then.
A. Well, Andrew fell to the ground and Sun Sun lent over him and started punching him in the face.
Q. When you say 'lent over him' what do you mean by that.
A. Just stood over him and started punching him in the face again.
Q. Did he do anything else to him.
A. He was smacking his head into the ground.
Q. What were you doing when he did that.
A. After a few smacks of his head into the ground I ended up going back into my room.
…
Q. What did you do when you went into your bedroom.
A. Just laid back and put my Xbox on.
Q. When you left the family room where was Sun Sun and Andrew.
A. Still in the family room.
Q. Where were they in relation to each other.
A. On the ground.
…
Q. Did anyone come into your room while you were there.
A. Yes.
Q. Who.
A. Mel come up to the door and she asked me to come out and stop him because he was going to kill him.
…
A. I got up to follow her out and as I was following her out I seen Sun Sun grab a knife off the bench.
Q. About how long do you think you were out of the family room before you came back in.
A. Around five minutes or so.
…
Q. Where was Andrew when you saw that happen.
A. Still laying on the ground.
Q. In the same place as when you left.
A. Yes.
Q. Was he moving.
A. No.
Q. Did you see any blood.
A. Yes.
Q. Where was that.
A. On his face.
Q. You saw Sun Sun grab the knife, where did he go from there.
A. He stabbed him in the face and –
…
Q. After Sun Sun stabbed Andrew in the face what did he do.
A. He stabbed him all over the stomach area.
Q. Did you see how hard he did it, could you say how hard he did it.
A. I can't really say how hard, just I suppose it was hard -
Q. Sorry.
A. I suppose it was just - I suppose it was hard, I suppose.
Q. Did he say anything while he was doing that.
A. He was just making 'doof' noises.
Q. I should have asked you before, previously when you left the room when Sun Sun was banging Andrew's head on the ground was he saying anything.
A. Yeah, might have been but I'm not sure.
Q. I am asking you about the stabbing now, did he stab him a number of times.
A. Yes.
Q. Do you know how many.
A. No.
Q. About how long do you think he took to do all the stabbing.
A. A few minutes.
…
Q. Was Sun Sun wearing gloves at some stage.
A. Yes.
Q. When was that.
A. He passed me a bag of clothes and when he passed me a bag of clothes I seen he had gloves on.
…
Provocation
The defence of provocation was left to the jury notwithstanding that provocation was not the primary contention advanced by Lindsay at trial and notwithstanding that Lindsay did not give evidence of a loss of self-control.
The Judge explained to the jury:
… As you know, Mr Lindsay does not claim that he acted under provocation. His defence is that it has not been proved beyond reasonable doubt that he was the person who stabbed Mr Negre. If you, however, take a contrary view, and you are satisfied beyond reasonable doubt that he did stab Mr Negre, that he was acting unlawfully when he did so, that he caused the death of Mr Negre and he did so with intent to cause grievous bodily harm or to kill Mr Negre, then you still have to ask yourselves, based on the evidence you have heard in the case, if it is a reasonable possibility that he was acting in response to provocation as the law defines it.
…
Ladies and gentlemen, you might find it is surprising that I am directing you about provocation in view of the fact that it is not Mr Lindsay’s case that he in any way acted under provocation. The reason I have given you the direction is that it is my duty to put provocation to you if, on the evidence, the facts could give rise to it. You would only consider provocation if you reject the defence case that it has not been proved that Mr Lindsay stabbed and killed Mr Negre. There has been no positive defence of provocation put to you by the accused Mr Lindsay. Of course, he does not have to do so. Nevertheless, you should consider whether in this case the words and conduct of Mr Negre could amount to provocation in the way in which I have defined it and whether the prosecution has established beyond reasonable doubt that Mr Lindsay was not provoked. So ladies and gentlemen, I will give you another handout now which deals with provocation.
Evidence relevant to a defence of provocation included the witnesses’ accounts that Lindsay wore gloves as he stabbed Mr Negre, that Lindsay was seen searching through Mr Negre’s pockets at the time that the attack was taking place, that Lindsay co-opted the services of Hutchings to assist him in that process and that Lindsay said to Ms Mildwaters, “I can’t let him go, he’ll go to the cops” and told those present to stay out of the way.
The Appeal
No attempt was made by Lindsay to agitate on appeal his primary defence at trial that he was not involved in the death of Mr Negre. Instead, the primary question on appeal was whether the summing up had been adequate in regard to provocation.
Loss of Self-Control
The Judge directed the jury that what would otherwise amount to the crime of murder may be reduced to manslaughter if it is a reasonable possibility that the crime was committed as a result of provocation. The Judge directed that such a situation would arise if Lindsay suffered a sudden and temporary loss of self-control as a result of conduct on the part of Mr Negre and that while suffering that loss of control, Lindsay killed Mr Negre:
I direct you that a killing which would otherwise amount to murder may be reduced to manslaughter if it is a reasonable possibility that it was committed as a result of provocation. That is, in law, if it is a reasonable possibility that the accused, in this case Mr Lindsay, as a consequence of conduct on the part of the deceased, Mr Negre, which conduct amounts to provocation, suffered a sudden and temporary loss of self-control and killed Mr Negre whilst out of control, then Mr Lindsay would be not guilty of murder but guilty of manslaughter.
Such directions accorded with the following formulation of the basic principles by King CJ in R:[2]
It is necessary to recall certain basic principles of the law of homicide. The killing of one person by another with intention to kill or do serious bodily harm is murder. Such a killing may, however, be reduced to manslaughter if the killing results from a sudden and temporary loss of self-control on the part of the killer which is brought about by acts or words of the deceased amounting in law to provocation. To amount in law to provocation the acts or words must satisfy the following tests: (1) they must be done or said by the deceased to or in the presence of the killer; (2) they must have caused in the killer a sudden and temporary loss of self-control rendering the killer so subject to passion as to make him for the moment not master of his mind; (3) they must be of such a character as might cause an ordinary person to lose his self-control to such an extent as to act as the killer has acted.
[2] The Queen vR (1981) 28 SASR 321, 321-2. See also Masciantonio v The Queen (1995) 183 CLR 58, 66-7; R v Singh (2003) 86 SASR 473, [98].
The High Court has made it plain that when considering whether the conduct of a deceased did cause a sudden and temporary loss of self-control, it is necessary to have regard to the personal characteristics of the defendant. The Court has also pointed out that when considering the objective test, the “ordinary person” is someone who possesses ordinary powers of self-control. That person does not take on the characteristics of the defendant, with the possible exception of immaturity – should that be relevant. As Brennan, Deane, Dawson and Gaudron JJ observed in Masciantonio:[3]
… Since the provocation must be such as could cause an ordinary person to lose self-control and act in a manner which would encompass the accused's actions, it must be such as could cause an ordinary person to form an intention to inflict grievous bodily harm or even death.
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.
[Footnote omitted.]
[3] Masciantonio v The Queen (1995) 183 CLR 58, 66-7.
This issue was addressed by this Court in Singh, where Mulligan J observed:[4]
…
In their joint judgment [in Masciantonio], Brennan, Deane, Dawson and Gaudron JJ acknowledged that the relevant characteristics of the accused must be taken into account when assessing the gravity of the conduct said to constitute provocation and observed that conduct which might not be insulting or hurtful to one person might be extremely so to another. However, as I have mentioned, their Honours went on to say that, having assessed the gravity of the provocation in that way, it is necessary to ask the question whether the provocation could cause an ordinary person to lose self-control and act in a manner which would encompass the accused's actions (at 67). The personal characteristics of the ordinary person at this stage are mentioned in Stingel. Their Honours said (at 69):
“It is whether an ordinary person could have lost self-control to the extent which the accused did (Moffa v The Queen (1977) 138 CLR 601 at 613 per Gibbs J and Stingel v The Queen (1990) 171 CLR 312 at 325). 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.”
[4] R v Singh (2003) 86 SASR 473, [121].
The Judge, during the summing up, reminded the jury of defence counsel’s contention regarding why it was a reasonable possibility that Lindsay did lose self-control. The Judge drew the jury’s attention to the fact that Lindsay was an Aboriginal man, that he was not homosexual, that he was in his own home in the presence of his wife and in the presence of his younger sisters, and that he was confronted with an unwanted sexual advance. The evidence did not reveal any particular characteristic of Lindsay relevant to the issue of provocation. As earlier observed, Lindsay did not give evidence. Relatively little was known of his personal circumstances. Ashleigh Lindsay gave evidence that he did not go to school, she had not seen him read or write, he had been in a relationship with his partner Melissa for over nine years and had a child of that relationship. The Judge reminded the jury of these matters when he summarised the evidence of Ashleigh Lindsay. The Judge repeated defence counsel’s contention that in those circumstances, an ordinary person in Lindsay’s position might have lost self-control and reacted in the way Lindsay reacted. The Judge went on to direct the jury that if that was a reasonable possibility, Lindsay would be not guilty of murder and guilty of manslaughter.
The Judge addressed provocation and, in particular, what are described as the two limbs of provocation. I refer, in particular, to the following excerpts from the summing up:
In considering provocation, there are two questions which you must ask. First, is it a reasonable possibility that what the deceased did or said caused Mr Lindsay to temporarily lose his self-control and to kill Mr Negre whilst he was not in control of himself? Second, is it a reasonable possibility that what the deceased did or said, assessed by reference to the gravity of the provocative conduct, might cause an ordinary person, in the position of the accused, to lose his or her self-control and do what the accused in fact did?
Ladies and gentlemen, there are two limbs. The first limb is what we call the subjective element. You consider Mr Lindsay’s state of mind and conduct. Consider whether, in the circumstances, it is a reasonable possibility that he had lost self-control and was acting while he had temporarily lost his self-control. Or, to put it in the correct way, the Crown has to prove that he was not acting when he lost his self-control. Secondly, even if you find that, you then have to consider the question of whether, in the circumstances of this case, the provocative act or word or words, or whatever you find them to be, were such as to cause an ordinary person, in the position of Mr Lindsay, to lose self-control. So that is an objective test that you have to apply: putting yourself in Mr Lindsay’s position, or putting an ordinary person in Mr Lindsay’s position, would that ordinary person lose control in all the circumstances of the case? The Crown has to prove that an ordinary person would not lose self-control in the circumstances of the case.
…
The second limb of provocation adds an objective assessment or an external standard of conduct to the test. You must decide whether the provocative conduct could also have been sufficient to cause an ordinary person in the same situation as Mr Lindsay to lose his self-control and do what Mr Lindsay did. This requires you to measure the reaction of Mr Lindsay against the possible reaction of an ordinary person, that is an ordinary person of similar age to Mr Lindsay, in the same position that Mr Lindsay found himself, that is an ordinary person of ordinary temper and ordinary powers of self-control.
When I speak of conduct capable of causing somebody to lose self-control, that conduct must be sufficient to cause the accused to lose self-control. Losing self-control means what it says; it must be more than mere anger or panic. It must be such, as in a case like this, it causes the accused’s blood to boil to the extent where reason has been temporarily suspended. If you consider that the accused, Mr Lindsay, was so provoked, then you must consider whether the conduct is capable of causing an ordinary person to lose self-control.
The loss of self-control which underpins the defence of provocation is not to be confused with emotions of hatred, resentment or anger. The law draws a distinction between intentional killing in an uncontrolled emotional state induced by a deceased’s provocative conduct and an intentional killing induced by a desire for revenge, or out of anger.[5] In R, King CJ addressed this topic:[6]
… The loss of self-control which is essential, is not to be confused with the emotions of hatred, resentment, fear or revenge. If the appellant, when in control of her mind and will, decided to kill the appellant because those emotions or any of them had been produced in her by the enormity of the deceased's past behaviour and threatened future behaviour or because she considered that that was the only way in which she or her children could be protected from the deceased's molestations in the future, the crime would nevertheless be murder. The law of a well-ordered and civilized society cannot countenance deliberate killing, even to the extent of treating it as extenuated, as a response to the conduct of another however abhorrent that conduct might be. Nor can society countenance killing as a means of averting some apprehended harm in the future. The law, of course, permits the use by a person of force, even to the extent of inflicting death, if that is necessary to defend that person against immediately threatened harm. But the law has always and must always set its face against killing by way of prevention of harm which is merely feared for the future. Other measures which are peaceful and lawful must be resorted to in order to deal with threats of future harm. Self defence is therefore not in question in this case. Moreover, the history of incest occurring in the absence of the appellant cannot of itself amount to provocation, even though recounted to her later. Words or conduct cannot amount to provocation unless they are spoken or done to or in the presence of the killer (R. v. Fisher; R. v. Mouers; Reg. v. Terry; Reg. v. Arden), although, of course, such words or conduct may be important as part of the background against which what is said or done by the deceased to the killer is to be assessed.
[Footnotes omitted.]
[5] Pollock v The Queen (2010) 242 CLR 233, [33].
[6] The Queen v R (1981) 28 SASR 321, 325-6.
There must be a link between the provocative conduct, the loss of self-control and the killing. So much is clear from earlier referred to general statements of principle. The Judge’s directions reinforced this basic proposition. The Judge was not required to traverse each factual issue in the context of directing the jury on the issue of whether or not Lindsay had lost self-control.
As discussed above, the Judge elaborated upon these concepts, separating out the subjective and objective limbs and additionally provided an aide memoire, which included the following:
A killing which would otherwise amount to murder may be reduced to manslaughter if it is a reasonable possibility that it was committed as a result of provocation – that is to say, provocation as that is understood by the law.
What would otherwise be murder is reduced to manslaughter if it is a reasonable possibility that the accused, as a consequence of conduct on the part of the deceased which amounts in law to provocation, suffered a sudden and temporary loss of self-control and killed the deceased while out of control.
There are two questions:
First, is it a reasonable possibility that what the deceased did or said, assessed by reference to the personal situation of the accused, caused Mr Lindsay to lose his self-control, and to kill the deceased while not in control of himself? So, in assessing the gravity of the provocation, you have regard to the relevant characteristics of Mr Lindsay.
Second, is it a reasonable possibility that what the deceased did, assessed by reference to the gravity of the provocation, might cause an ordinary person to lose his or her self-control and do what Mr Lindsay, in fact, did?
To answer the first question, you ask yourself whether it is a reasonable possibility that the conduct of the deceased actually caused Mr Lindsay to lose his self-control and whether it is a reasonable possibility that he then inflicted the fatal injuries whilst not in control of himself, before he regained his composure.
You have to assess the gravity of offence constituted by the deceased’s conduct. In making that assessment, you must have regard to any and every characteristic of Mr Lindsay, and to any of his life experiences, which might affect the degree of offence caused to him by the deceased’s conduct. The characteristics to which you can have regard include Mr Lindsay’s age and other factors personal to him.
To answer the second question, having determined the gravity of the provocation, then consider whether it is reasonably possible that the conduct of the deceased, of the degree of gravity as you find it, could cause an ordinary person to lose self control and act in the manner in which Mr Lindsay acted.
The Judge’s directions accorded with well settled authority.[7] I do not consider that any criticism can reasonably be directed to the Judge’s statements of general principle. In my view, the Judge’s summing up on this topic was adequate and appropriate.
[7] The Queen v R (1981) 28 SASR 321, 321-322; Masciantonio v The Queen (1995) 183 CLR 58, 66-67; R v Singh (2003) 86 SASR 473, [98].
Burden of Proof
Lindsay submitted that the Judge failed to direct the jury that the prosecution was required to negative provocation. An immediate difficulty confronting this contention is that the Judge gave repeated and explicit directions that Lindsay did not have to prove that he was acting under provocation, but rather that the prosecution had to prove that he was not.
A review of the summing up demonstrates that it was made abundantly clear to the jury that before they could return a verdict of guilty, the prosecution had to exclude the reasonable possibility of provocation based upon the gesture made by Mr Negre under the pergola coupled with his later statement inside the house. I draw particular attention to the following excerpts from the Judge’s summing up:
I direct you that a killing which would otherwise amount to murder may be reduced to manslaughter if it is a reasonable possibility that it was committed as a result of provocation. That is, in law, if it is a reasonable possibility that the accused, in this case Mr Lindsay, as a consequence of conduct on the part of the deceased, Mr Negre, which conduct amounts to provocation, suffered a sudden and temporary loss of self-control and killed Mr Negre whilst out of control, then Mr Lindsay would be not guilty of murder but guilty of manslaughter.
I will explain provocation in a positive sense because it is easier to understand, but I direct you that it is not for the accused to prove provocation; it is for the prosecution to disprove it.
…
When you consider these two limbs, the subjective and objective limb as I have described them, it is for the prosecution to disprove them. Even though I have directed you in positive terms, ultimately, the decision you must make is: has the prosecution proved that provocation did not exist in this case? I remind you that the accused does not have to establish provocation. The prosecution is required to prove that provocation does not apply.
…
… I make it clear, ladies and gentlemen, there is no requirement of an accused to put forward a positive case. In this case Mr Lindsay’s case is, firstly, he has not put forward any positive case. He has not given evidence and he is not required to. When he is saying to you, ladies and gentlemen, or what his counsel has put to you is that, firstly, it has not been proved beyond reasonable doubt that he did the acts which caused the death of Mr Negre, therefore he is not guilty of anything. What is said to you is this: if you are satisfied beyond reasonable doubt that he did all the acts with the required intention which would lead to him being convicted of murder, then you have to consider provocation. Provocation is not a defence he puts forward, it is put to you because it arises on the evidence that you heard in the case. It is not part of the prosecution case that there was provocation here. The prosecution put the argument to you that you should not find provocation in this case, you should be satisfied beyond reasonable doubt that there was no provocation.
…
If you conclude that the prosecution has not proved that Mr Lindsay was not provoked, having regard to the two levels of provocation, you must acquit him of murder but you would convict of manslaughter.
[Emphasis added.]
The aide memoire included the following statement on the question of the burden of proof:
Remember that the prosecution has to prove beyond reasonable doubt that the killing was unprovoked. The accused does not have to prove that he acted under provocation. The prosecution must satisfy you beyond reasonable doubt that Mr Lindsay did not lose his self-control or that, if he did, an ordinary person of Mr Lindsay’s age would not have lost his self-control, having regard to the gravity of the conduct of Mr Negre as you have assessed it.
If the prosecution has proved the elements of Murder beyond reasonable doubt, but it is a reasonable possibility that Mr Lindsay was provoked, that reduces the crime from murder to manslaughter.
[Emphasis added]
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
Rhetorical questions were posed by the Judge as a means of assisting the jury to link the factual issues to the topic of provocation. They were no more than that. The fact that the answers to those questions may have been unwelcome by Lindsay does not make the questions objectionable, or render the summing up unbalanced.
The following is an example:
Well, ladies and gentlemen, it is a matter for you. Do you think Ms Mildwaters was making events up and implicating Mr Hutchings in order to gain assistance from the police? What do you make of her evidence? If you accept Ms Mildwaters’ evidence, then you would reject the suggestion that Mr Lindsay was not present when Mr Negre was stabbed. Not only would you reject that suggestion, but what do you make of Mr Lindsay yelling at him to hold Mr Negre in order to search his pockets? How does that evidence fit with someone who has temporarily lost self-control? What do you make of Mr Negre’s trousers being pulled down? Is that consistent with someone searching his pockets? Does that fit with a temporary loss of self-control? What of the evidence that at that stage both Mr Lindsay and Mr Hutchings were wearing gloves?
[Emphasis added.]
The members of the jury were entitled to consider how Lindsay telling Hutchings to search Mr Negre’s pockets during the course of the assault, and Lindsay telling Mr Negre to “give me what you’ve got” as he stabbed him, impacted on the issue of whether or not he was acting under provocation.
The Evidence of Hutchings
On the hearing of the appeal, Lindsay contended that the Judge had failed to properly direct the jury on the evidence given by Hutchings. He went so far as to contend that the evidence of Hutchings supported the defence of provocation.
The evidence of Hutchings identified Lindsay as the person responsible for the infliction of all injuries sustained by Mr Negre, other than the neck wound. He refuted the suggestions put to him in cross-examination that there had been a physical altercation between Lindsay and Mr Negre under the pergola. He refuted suggestions that, while in the kitchen area, Lindsay had struck Mr Negre before leaving the room. He denied any suggestion that the attack happened quickly, suggesting that there was a short interval between Lindsay punching Mr Negre and the onset of the stabbing.
The evidence of Hutchings, as discussed earlier, was wholly inconsistent with the primary argument advanced by counsel for Lindsay at trial, namely that Lindsay did not inflict the fatal injuries. His evidence was also inconsistent with any suggestion that the killing was carried out under provocation.
A review of the summing up discloses that the Judge thoroughly reviewed the evidence of Hutchings. That evidence was not, to my mind, reasonably capable of supporting a defence of provocation.
Suggested Confusion
Lindsay submitted that the Judge’s directions left the question of provocation in a confusing state. It was pointed out that the Judge’s direction emphasised that provocation was neither the prosecution case nor a positive defence relied on by Lindsay. There was no challenge to these statements as far as they went, however, it was suggested that the Judge’s directions were confusing to the jury as they tended to mislead the jury as to the onus that lay on the prosecution. In my view, there is no substance to this complaint.
The evidence giving rise to the requirement to leave the defence of provocation was given during the course of the prosecution case. If the members of the jury took a certain view of the evidence, and were prepared to draw certain inferences from that evidence, the defence of provocation was potentially open. But it was never the prosecution case that those inferences should be drawn. Counsel for the prosecution did not advance the issue as a reasonable possibility. Rather, the argument advanced by prosecuting counsel was that provocation should be excluded as a reasonable possibility. Accordingly, provocation did not form any part of the case advanced by the prosecution.
The primary argument on behalf of Lindsay, as advanced in cross-examination and in the closing address, was that the eye witnesses were mistaken in their observations of Lindsay stabbing and robbing Mr Negre. It was contended that Lindsay did not commit the actus reus. Provocation was advanced as an alternative, or secondary, submission in the event that the jury rejected defence counsel’s primary submission.
Earlier in these reasons, I have extracted by way of example several of the Judge’s directions as to the onus of proof. I do not consider that the members of the jury were left in any doubt as to the onus borne by the prosecution. I do not consider that any other aspect of the summing up would have led to any confusion in this respect.
Out of Court Statement
Ms Mildwaters gave evidence that Lindsay had a shower after the killing and then asked Ms Mildwaters to “clean up the mess”. She declined. She then heard the sound of Hutchings throwing the body into a rubbish bin, after which Lindsay approached her and said, “I’m going to gaol for the rest of my life, aren’t I, sister girl?”
It was open to the jury to use the statement as an acknowledgement by Lindsay that he had caused the death of Mr Negre by stabbing him. This was a relevant consideration in the context of cross-examination of the eyewitnesses that suggested he had no involvement in the stabbing.
A rhetorical question put by the Judge, namely, “If you accept that Mr Lindsay said those words, how does that sit with the suggestion that he was not there when Mr Negre was stabbed?” was extremely reasonable in the circumstances. It was appropriate that the jury consider this evidence when considering the accuracy and reliability of the prosecution witnesses, and whether or not the prosecution had proven beyond reasonable doubt that Lindsay was the stabber. The Judge did no more than bring to the attention of the members of the jury an item of evidence for them consider afresh in the context of the issues to be decided at trial.
So too with respect to the question, “Is it something that someone who had been provoked would say?” It was open to the jury to consider the words and actions of Lindsay following the stabbing in the same way as they could consider his words and actions before the stabbing. The question as posed did no more than invite the jury to consider those words in the context of their deliberations on provocation. No more was required.
Miscarriage of Justice
Lindsay submitted that each of his complaints, either alone or in combination, gave rise to a risk that there had been a miscarriage of justice in respect of the defence of provocation. It was said that the conviction for the crime of murder should be set aside.
It is apparent from the above reasons that I do not consider that any of the complaints have been made out. To my mind, the evidence to support the defence of provocation was weak. The overwhelming evidence as to the circumstances of Lindsay wearing gloves, searching through Mr Negre’s pockets at the time the attack was taking place, co-opting Hutchings to assist in this process and telling those present to stay out of the way weigh heavily against any suggestion of a sudden and temporary loss of self-control. So too did Ms Mildwaters’ evidence that Lindsay said, “I can’t let him go, he’ll go to the cops”.
The jury would have been left in no doubt about the prosecution case on provocation. Counsel addressed on the basis that while a defence of provocation arose as a matter of law, the evidence demonstrated that it was not a reasonable possibility.
In the absence of any evidence from Lindsay as to his state of mind, the question was as to the inferences to be drawn from the other evidence. I consider that the evidence in the trial barely, if at all, raised inferences sufficient to support a defence of provocation. In all the circumstances, it would have been open to the Judge not to have left provocation.
I do not consider there to be any substance to the complaints advanced on appeal. In particular, my review of the summing up and the evidence does not lead to a conclusion that there is a risk of a miscarriage of justice, or of the verdict being unsafe and unsatisfactory.
Appeal Against Sentence
Lindsay was sentenced to the mandatory term of life imprisonment for the crime of murder. A non-parole period of 23 years was fixed. Lindsay’s application for permission to appeal has been referred to this Court. It was contended that the Judge had erred in several respects when fixing the non-parole period and that, in any event, the non-parole period was manifestly excessive.
Attention was drawn to section 32A(3)(a) of the Sentencing Act, which provides:
(1)If a mandatory minimum non-parole period is prescribed in respect of an offence, the period prescribed represents the non-parole period for an offence at the lower end of the range of objective seriousness for offences to which the mandatory minimum non parole period applies.
(2)In fixing a non-parole period in respect of an offence for which a mandatory minimum non parole period is prescribed, the court may—
(a) if satisfied that a non-parole period that is longer than the prescribed period is warranted because of any objective or subjective factors affecting the relative seriousness of the offence, fix such longer non-parole period as it thinks fit; or
(b) if satisfied that special reasons exist for fixing a non-parole period that is shorter than the prescribed period, fix such shorter non-parole period as it thinks fit.
(3)In deciding whether special reasons exist for the purposes of subsection (2)(b), the court must have regard to the following matters and only those matters:
(a) the offence was committed in circumstances in which the victim's conduct or condition substantially mitigated the offender's conduct;
(b) if the offender pleaded guilty to the charge of the offence—that fact and the circumstances surrounding the plea;
(c) the degree to which the offender has cooperated in the investigation or prosecution of that or any other offence and the circumstances surrounding, and likely consequences of, any such co operation.
(4)This section applies whether a mandatory minimum non parole period is prescribed under this Act or some other Act.
It was submitted that the Judge was wrong to reject a submission that the offence was committed in circumstances in which Mr Negre’s conduct or condition substantially mitigated Lindsay’s conduct. It was contended that the Judge had failed to consider Mr Negre’s conduct in its full context.
It was further complained that the Judge failed to have adequate regard to other relevant matters. They included Lindsay’s age, that he was Aboriginal, was illiterate, uneducated and suffered from an intellectual disability with significant cognitive defects, and was unemployed. It was said that it was relevant that Lindsay had been consuming prescribed valium and was drinking alcohol at the time. It was said that other circumstances were relevant, including the fact that Mr Negre was Lindsay’s guest, that Lindsay had not previously known Mr Negre, the conduct in the area of the pergola, and that the later conduct of Mr Negre was in defiance of the earlier threat that Lindsay had made if similar conduct was repeated.
Further complaint was made that the Judge failed to give proper weight to Lindsay’s cognitive deficits when considering personal and general deterrence. Finally, it was said that the Judge was wrong to conclude that Lindsay was a continuing danger to the community.
It is convenient to immediately address section 32A of the Sentencing Act. This section governs the setting of non-parole periods for offences in respect of which minimum mandatory non-parole periods have been prescribed. The section enables the court only to depart from the prescribed minimum non-parole periods when special reason exists. In Ironside,[11] this Court had occasion to consider the section and to grapple with some of the difficulties that arise as a matter of construction. Doyle CJ observed:[12]
[11] R v Ironside (2009) 104 SASR 54.
[12] R v Ironside (2009) 104 SASR 54, [31]-[33], [37]-[49].
It is apparent from these provisions that the fixing of a non-parole period in respect of a serious offence against the person requires a different approach from that taken in fixing a non-parole period in respect of other offences.
The head sentence will be determined in the usual manner: s 10(1a) of the Act. The prescription of a mandatory minimum non-parole period is to have no effect on the fixing of a head sentence.
The court will then have to consider, in the usual way, whether the case is one of the exceptional cases in which, having regard to the provisions of s 32(5)(c), the court should decline to fix a non-parole period. Unless the court declines to fix a non-parole period, it will then turn to the provisions of ss 32(5)(ba) and 32A.
…
The court is required by s 32A(2) to consider whether the non-parole period that it proposes to fix should be equal to, or longer than or shorter than, the prescribed period. It does this by considering the circumstances identified by parliament in s 32A(2). It then asks itself whether, bearing in mind that an offence of the relevant kind at the lower end of the range of objective seriousness warrants a non-parole period equal to the prescribed period, the particular offence calls for a non-parole period equal to, or longer or shorter than the prescribed period.
So, as I have said, the prescribed period is identified as a yardstick or benchmark. It is appropriate for an offence of the relevant kind at the lower end of the range of objective seriousness. Any aspects or circumstances of the particular offence that are referred to in s 32A(2) then have to be identified, and in light of those matters the particular offence has to be compared with the benchmark or yardstick, with a view to deciding whether the particular offence, in light of that comparison, warrants a non-parole period equal to, longer than or shorter than the prescribed period.
This is a difficult process.
To explain the difficulty, and the process involved, it is convenient to consider separately the question of whether the non-parole period should be longer than the prescribed period and the question of whether the non-parole period should be shorter than the prescribed period. In practice, a court will usually not approach the matter in this sequential fashion. But it is necessary to do so to identify the matters that have to be considered.
When considering the first of these questions a court must have regard to all of the circumstances that would be taken into account in fixing a non-parole period for an offence other than a serious offence against the person. The reference in s 32A(2)(a) to “objective or subjective factors affecting the relative seriousness of the offence” must be a reference to all of the objective and subjective circumstances that are usually considered in fixing a non-parole period. By considering all of these circumstances the court makes an assessment of the seriousness of the relevant offence, but with a view to fixing a non-parole period. I refer, without repetition, to the earlier citations on that point. But in the case of a serious offence against the person, the court, when considering the first question, does not go directly to the fixation of a non-parole period, but considers whether, in the light of all relevant circumstances, a non-parole period longer than the non-parole period appropriate for an offence at the lower end of the range of objective seriousness (that is the prescribed period) is called for.
Thus, the court must consider whether the “objective or subjective factors” call for a non-parole period longer than the prescribed period, bearing in mind that the prescribed period is appropriate for an offence at the lower end of the range of objective seriousness. parliament clearly intends the fixing of a non-parole period in respect of a serious offence against the person to be approached in this indirect fashion, and by reference to the statutory benchmark or yardstick.
The task of the court is a difficult one. The court has to compare the non-parole period that is appropriate in the light of all relevant circumstances (the objective or subjective factors) with a non-parole period that is appropriate having regard only to the “objective seriousness” of an offence of a relevant kind at the lower end of the range of seriousness. As a matter of logic, the comparison is impossible, because one is not comparing like with like. One is comparing a putative or potential non-parole period arrived at on one basis (a consideration of all relevant circumstances) with a non-parole period identified by reference only to the objective circumstances or objective seriousness of the offence.
However, the process of sentencing is not an exercise in logic. When, as is sometimes necessary, a court considers the sentence that is appropriate for joint offenders, and takes into account their different circumstances, the court makes a comparison of an evaluative kind. It is not an exercise in logic. A similar process of evaluation is called for by s 32A, but is made more difficult by the fact that the comparison is between a putative non-parole period and a prescribed non-parole period that are arrived at in the light of, and based on, different considerations. But this is what parliament requires the court to do.
When considering whether a non-parole period shorter than the prescribed period is appropriate, the court must again bear in mind that the prescribed period is an appropriate non-parole period for an offence at the lower end of the range of objective seriousness.
Then the court must direct its attention to s 32A(2)(b) and to (3). The court can now consider only the matters referred to in s 32A(3).
If one or more of the matters identified in s 32A(3) is present, the court must then consider whether that matter or those matters call for a shorter non-parole period than the prescribed period. Remembering that the prescribed period is an appropriate non-parole period for an offence of the relevant kind at the lower end of the range of objective seriousness, the court will ask itself whether the identified matters that are present call for a shorter non-parole period having regard to their mitigating effect, and the relevance of the identified matters to the fixing of a non-parole period.
Once again there is a difficulty in making the relevant comparison. One is not comparing like with like. The difficulty is increased by the fact that the court must engage in the unfamiliar task of arriving at a putative or possible non-parole period by reference only to the limited matters identified in s 32A(3), rather than by reference to all of the circumstances (subjective and objective) that would usually be relevant.
The power to fix a shorter non-parole period will be enlivened only if the matters identified in s 32A(3) that are present support a conclusion that a shorter non-parole period than the prescribed period is appropriate, bearing in mind that the prescribed period is appropriate for an offence at the lower end of the range of objective seriousness.
The Judge delivered extensive sentencing remarks. In the course of those remarks, his Honour summarised Lindsay’s conduct and proceeded to sentence on the basis that what had been said by Mr Negre had caused Lindsay to become angry and contributed to his reaction of punching him and knocking him to the ground. The Judge accepted the defence submission that Lindsay was still angry at the time he attacked Mr Negre on the ground. The Judge, however, went on to remark that Lindsay’s response of hitting and stabbing Mr Negre was a totally disproportionate response to Mr Negre’s conduct and words.
The Judge addressed the submission that Mr Negre’s conduct substantially mitigated Lindsay’s conduct within the meaning of section 32A of the Sentencing Act. The Judge rejected the submission and, in that respect, remarked:
I do not accept that the conduct of Mr Negre in making a statement that he would pay you for sex, in the background of having made an inappropriate gesture and statement to you earlier, amounted to conduct by him which substantially mitigates your conduct. In my view the section is not enlivened. Even if I were to conclude that the section is enlivened and that Mr Negre’s conduct was such that it substantially mitigated your conduct, I would conclude that your conduct does not support the fixing of a non-parole period that is shorter than the mandatory non-parole period of 20 years imprisonment. In arriving at that conclusion, I have regard to the fact that Parliament has enacted that the minimum non-parole period of 20 years imprisonment is appropriate for offences at the lower end of the range of objective seriousness. In my view, all the circumstances to which I have referred, and the circumstances leading up to the commission of the crime, and the circumstances of the crime itself are such that this is not a case in which it is appropriate to set a non-parole period of less than 20 years imprisonment, even if special reasons might exist.
The Judge concluded his remarks in respect of Lindsay as follows:
I accept that you have a low intellectual function and that you have difficulty in concentrating for long periods of time. Nonetheless, I am satisfied that you are well aware of what is and what is not appropriate behaviour and what is lawful and unlawful conduct. You have shown no remorse. Given your past history, it is my view that your prospects of rehabilitation are poor. In my view you present as a person who is a continuing danger to the community. I am mindful that the sentence I impose must strike a balance between your personal circumstances and the requirements to set a sentence which has adequate regard to the protection of the community and personal and general deterrence. Your actions call for a lengthy non-parole period.
The Judge then sentenced Lindsay in the following terms:
The sentence of the court is that you be imprisoned for life. I set a non parole period of 23 years imprisonment, the head sentence and non-parole period to commence on 19 May 2013. …
I now turn to Lindsay’s circumstances. He has extensive criminal antecedents. His offending commenced as a young offender. From about the age of 16 years, Lindsay committed numerous motor vehicle offences. He was involved in dishonesty offending. When aged 17 years, he was convicted of offences, including robbery in company. He was sentenced to a suspended term of detention. He was further sentenced to detention for offences, including aggravated serious criminal trespass, non-residential. Lindsay’s offending continued as an adult. When aged 18 years, he committed the offence of aggravated serious criminal trespass, non-residential, leading to a term of imprisonment of two years and three months. When aged about 23 years, he was convicted of offences, including the aggravated offence of committing theft using force. This led to an immediate term of imprisonment of four years and six months. When aged about 26 years, he was sentenced to further imprisonment of 39 months for offences, including driving dangerously to escape police pursuit. Throughout the time of his offending, he failed on multiple occasions to comply with his bail agreements.
Psychological and psychiatric reports concerning Lindsay were before the Judge. Dr Craig Raeside provided a psychiatric report in July 2012 in which he expressed the following conclusion:
In summary, Mr Lindsay is a 27 year old man with a lifelong history of difficulties beginning with early life head trauma with the likely development of acquired brain injury and intellectual impairment. He had significant difficulties at school and is illiterate. He developed antisocial personality traits (a Conduct Disorder) in his childhood and has been in and out of custody through his teenage years and as an adult. There is a history of marked substance abuse, particularly alcohol, with a past history of aggressive behaviour when intoxicated.
Diagnosis
Based on the information available to me and from my interview with Mr Lindsay, I was unable to find any evidence of a previous or current psychiatric disorder. Although he reported being stressed (most likley due to a combination of factors including his limited capacity given his intellectual ability and difficulty managing the circumstances around him) I could find no evidence of a severe mood disorder or a psychotic disorder.
The history suggest an underlying Antisocial Personality Disorder. This represents a lifelong history of difficulties with relationships, unlawful behaviour, impulsivity, irritability and anger, failure to sustain consistent work, and a childhood history of Conduct Disorder. This is a personality style that is often associated with a history of childhood abuse and neglect, and poor educational and social opportunities and attainments.
The psychologists have more accurately assessed Mr Lindsay as suffering a moderate intellectual disability that probably represents early life head injury and brain damage.
Substance abuse appears to have been problematic.
Richard Balfour, a psychologist, reported in May 2003 that Lindsay’s level of intelligence was in the bottom one per cent of the general population, and that he was functionally illiterate and anumerate. Mr Balfour noted that Lindsay had sustained serious traumatic brain injury when aged 21 months. Mr Balfour considered that Lindsay was mentally impaired and was suffering from an intellectual disability of moderate severity. He had an organic personality syndrome and was impulsive, socially dislocated and vulnerable to negative peer group pressure.
Mr Balfour further reported in April 2012. At this time, he recorded that Lindsay had a history of drug and alcohol abuse. Mr Balfour, when addressing his mental health, noted a history of a short temper, and of being easily angered with minimal provocation. At this time, Mr Balfour assessed Lindsay as having an intellectual disability of moderate severity. He considered that this disability was irreversible and resulted in significant impairments in Lindsay’s daily living skills. He assessed Lindsay as having an organic personality syndrome that was likely to be lifelong. Common symptoms of this syndrome include affective instability, recurrent outbursts of aggression or rage, markedly impaired social judgment, marked apathy and indifference, and suspiciousness or paranoid ideation. A common pattern in Mr Balfour’s opinion included belligerent or bad temper outbursts, grossly out of proportion to any precipitating psycho-social stressors. Mr Balfour expressed the following further opinion:
Mr Lindsay has low self-esteem due to having an intellectual disability. He finds learning experiences psychologically very threatening because he frequently fails at new tasks. Consequently he attempts to save face by sabotaging attempts to help him overcome his learning problems. He is very vulnerable to negative peer group pressure. He is eager to be accepted by a peer group to bolster his self-esteem. Consequently he finds it difficult to assert himself against negative peers’ requests and he engages in immature, inappropriate attention-seeking behaviours that are social disruptive (i.e., he shows off). His offending has also become an expression of his masculinity and boldness by accepting dares from his negative peers. He has poor forward planning skills and experiences difficulty learning from his mistakes. He is a concrete and egocentric thinker and this makes it difficult for him to experience empathy with others including victims. He has limited structure in his life and this is another risk factor. He leads an aimless lifestyle without goals and this result in chronic boredom that fuels sensation seeking behaviour. He has limited insight into his disabilities and associated psychosocial limitations.
Mark Reid, a neuropsychologist, reported in May 2012:
Due to his probable lifelong intellectual incapacity, Mr. Lindsay has been emotionally immature and has been very limited in his capacity to learn any appropriate and adaptive behaviours and strategies to deal with conflict or the other nuances of personal interaction. Typically, people with such a low level of intellectual functioning tend to be quite gullible and easily coerced, often demonstrating childlike methods of gaining attention or potentially gaining approval. This is likely to be the situation with Mr. Lindsay’s behaviour during his education and early adolescence where he appears to have been easily influenced by a negative peer group.
…
I could find no evidence to suggest that he does or has suffered from any mental illness and I have no evidence to suggest he has ever been psychotic. He does appear to have developed a range of behaviours consistent with an Antisocial Personality Disorder, but this is likely to be in the context of his low level of intellectual functioning and his gullibility and susceptibility to influence from a negative peer group.
Dr Emma Scamps, a neuropsychologist, in a report of June 2013, expressed the following opinion:
Based on the recent psychological and neuropsychological assessments, and on the assessment results I obtained, it is clear that Mr Lindsay’s cognitive functioning is in the severely impaired range and that his deficits are global, across all of the cognitive domains assessed. On the assessment I conducted, he demonstrated significantly impaired literacy and verbal comprehension. He had a very concrete approach to solving problems and was unable to use abstract concepts. His thinking was literal and he was unable to find alternative solutions to a problem. He demonstrated significant difficulty inhibiting a response and his planning and organising was poor.
This was a brutal killing. It could not reasonably be categorised as being at the lower end of the range of objective seriousness for the crime of murder.[13] The Judge was entitled to reject the submission that the victim’s conduct substantially mitigated Lindsay’s conduct. The Judge was entitled to conclude that Lindsay’s prospects of rehabilitation were poor, and that he represented a danger to the community. The psychiatric and psychological material before the Court plainly demonstrated this to be the case.
[13] Criminal Law Sentencing Act 1988 (SA) section 32A(1).
The Judge addressed the victim impact statements of members of Mr Negre’s family and summarised their terms as follows:
It is clear that Mr Negre was a well loved member of his family. The victim impact statements of his sisters and his friends and Ms Ninos demonstrate that he was a good brother and a friend and that he was generous and fun loving. His family, his friends and Ms Ninos have all been deeply traumatised by his murder. Mr Negre’s mother is so traumatised that she was unable to put into words the dramatic effect that Mr Negre’s untimely death has had upon her. Mr Negre’s father demonstrated great strength in personally informing the court of the effect the murder has had upon him. Both Mr Negre’s sisters spoke to the effect that their brother’s loss has had upon them and their families. Mr Negre’s father, mother and his daughters were present throughout the trial. It is clear that all of them have been severely affected by what they heard and what had occurred. In sentencing you I have had regard to their statements. Nothing I can say in these sentencing remarks can adequately express the grief that they have suffered.
The Judge also had regard to the victim impact statement of Ashleigh Lindsay and, in that respect, observed:
I have also had regard to a victim impact statement of Ashleigh Lindsay, your sister, Mr Lindsay. She was an innocent bystander to what occurred on that fateful night. The events of that evening had a severely traumatic affect upon her. At the time she was 19 years of age. What she observed and what occurred has had a dramatic effect upon her life.
It was clear when she was giving evidence that she has been traumatised by what occurred. Further, she has been ostracised by other members of her family and friends because she was required to give evidence. She described what she saw and what had occurred. But for your conduct, Mr Lindsay and Mr Hutchings, she would not have suffered as she has.
Mr Lindsay, your conduct has had a major effect upon her life and upon her psychological state. I have had regard to her statement.
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
PEEK J. 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.
Particulars
1.1 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.
Particulars
3.1 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
The appellant submits that, having regard to the adversarial position between himself and the co-accused Hutchings, the Judge should have directed that even if the jury rejected the appellant’s primary defence that Hutchings was lying in denying that the appellant was solely responsible for the death, the jury might still use Hutchings’ evidence in favour of the appellant in relation to the partial defence of provocation.
The bulk of the evidence of the co–accused was greatly at variance with the primary case being put by the appellant and was hotly disputed in cross–examination by senior counsel. The appellant submitted that there was a risk that the jury may not have appreciated that, if they rejected the appellant’s primary position that Hutchings was lying in his evidence against the appellant as to who stabbed the deceased, they were nevertheless required to consider whether to use his evidence in favour of the appellant in relation to the partial defence of provocation. A direction that portions of Hutchings’ evidence were capable of tending to prevent them from being satisfied beyond reasonable doubt that the prosecution had negatived the partial defence of provocation and that his evidence should be considered in that context was desirable. However I am not persuaded that the failure to so direct, alone, was productive of a miscarriage in this case.
Has the appellant made out his grounds of appeal?
The appellant raises a number of other matters which I consider unnecessary to discuss. I consider that the cumulative effect of the matters discussed above is that the appellant has made out sufficient aspects of grounds 1 and 3 of appeal to establish that he has not had a trial according to law and that, in that sense, a miscarriage of justice has occurred.
However, whether that conclusion leads to a setting aside of the verdict in the circumstances of this case depends on the resolution of the ultimate question of whether the proviso should be applied.
APPLICATION OF THE PROVISO
On the hearing of the appeal, discussion was initiated by the Court as to whether the Court should, first, find that the alternative verdict of manslaughter should not have been left to the jury at all (particularly having regard to the objective limb) and, second, apply the proviso even though the directions as to the partial defence of provocation were erroneous. In order to answer those questions, a number of subsidiary matters must be considered.
Should the Judge have left provocation to the jury?
There was ample evidence for the jury’s consideration of the subjective limb, namely that the appellant was in fact provoked by the conduct of the deceased and did thereby lose control. This was, in effect, conceded by the prosecutor in submissions in the absence of the jury.
As to the objective test, one sympathises with the Judge’s decision to leave the partial defence of provocation to the jury in the present case, for there are many appellate strictures to the effect that Judges should be cautious about withdrawing it from the jury. Reference to two judgments of the High Court will suffice. In Moffa v The Queen,[110] an appeal from South Australia, Barwick CJ stated:
But there are limits to the control of such a factual situation which the court can exercise. If, as I think, the situation was not composed of mere words of a not violently provocative character, the court cannot refuse to allow the tribunal of fact to decide the matter unless it is quite clear that no reasonable person could possibly conclude that, in the situation most favourably viewed from the standpoint of the accused, an ordinary man could have so far lost his self-control as to form an intent at least to do grievous bodily harm to his wife.
[110] (1976-1977) 138 CLR 601
And in Stingel v The Queen, the High Court stated:[111]
… the question for a trial Judge under s 160(3) can be summarized as being whether, on the version of events most favourable to the accused which is suggested by material in the evidence, a jury acting reasonably might fail to be satisfied beyond reasonable doubt that the killing was unprovoked in the relevant sense. … the ultimate question whether the prosecution has proved the absence of provocation is a question of fact for the jury alone. That being so, a trial Judge should be conscious of the limited scope of the preliminary “question of law” whether there is material in the evidence “capable of constituting provocation” and of the need to exercise caution before declining to leave provocation to the jury in a case such as the present where it is sought to rely on a defence of provocation or failing to do so in a case where, even though provocation is not raised by the accused, there is material in the evidence which might arguably be thought to give rise to a defence of provocation … (Emphasis added)
[111] (1990) 171 CLR 312 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ).
I obviously accept these statements of general principle. But the question remains as to whether the Judge’s decision to leave the partial defence of provocation to the jury in all the circumstances of the present case was correct.
As was stated in Stingel v The Queen,[112] the function of “the ordinary person” of the common law of provocation “is to provide an objective and uniform standard of the minimum powers of self-control which must be observed before one enters the area in which provocation can reduce what would otherwise be murder to manslaughter.”
[112] (1990) 171 CLR 312 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ). Similarly, in Masciantonio v The Queen (1994-1995) 183 CLR 58, 66 Brennan, Deane, Dawson and Gaudron JJ stated that the objective test “lays down the minimum standard of self-control required by the law”.
I also have regard to a statement of principle by Wilson J in R v Hill, referred to with approval by a number of Justices of the High Court on several occasions.[113] Her Honour stated:[114]
The governing principles are those of equality and individual responsibility, so that all persons are held to the same standard notwithstanding their distinctive personality traits and varying capacities to achieve the standard. The success of a provocation defence rests on establishing the accused’s act as one which any ordinary person might have done in the circumstances and not upon eliciting the court’s compassion for an accused whose act was unjustified but who could not control himself in the way expected of an ordinary person. It is evident that any deviation from this objective standard against which an accused’s level of self-control is measured necessarily introduces an element of inequality in the way in which the actions of different persons are evaluated and must therefore be avoided if the underlying principle that all persons are equally responsible for their actions is to be maintained.
[113] For example, in the judgment of the Court in Stingel v The Queen (1990) 171 CLR 312, 324 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ).
[114] [1986] 1 SCR 313, 343
Thus, the objective test is an instrument of policy employed to keep the partial defence of provocation within bounds acceptable to contemporary society.
There is no doubt that in former times, when acts of homosexuality constituted serious crime and men were accustomed to resort to weapons and violence to defend their honour, a killing under the provocation present here would have been seen as giving rise to a verdict of manslaughter rather than murder. However, times have very much changed. As Gibbs J emphasised in Moffa v The Queen:[115]
The question has to be decided in the light of contemporary conditions and attitudes, for what might be provocative in one age might be regarded with comparative equanimity in another, and a greater measure of self-control is expected as society develops.
[115] (1976-1977) 138 CLR 601. His Honour was in dissent as to the result of the case but that does not affect His Honour's statement of principle.
After careful consideration of the authorities, and of some of the extensive academic literature, I have come to the firm view that in twenty–first century Australia, the evidence taken at its highest in favour of the appellant in the present case was such that no reasonable jury could fail to find that an ordinary man could not have so far lost his self control as to attack the deceased in the manner that the appellant did. Accordingly, the Judge was incorrect in his decision to leave the partial defence of provocation to the jury in this case.
I emphasise that I reach my conclusion purely on a case specific basis. I do not suggest that previous decisions of this Court in which it has been held that the evidence there was capable of making out the objective limb such as R v Webb,[116] R v Dutton,[117] R v Romano,[118] R v Cooke,[119] and R v Radford[120] were other than rightly decided. Again, all were case specific, with the evidence being of a different nature and seriousness to that here.
[116] (1977) 16 SASR 309.
[117] (1979) 21 SASR 356.
[118] (1984) 36 SASR 283.
[119] (1985) 39 SASR 225.
[120] (1985) 42 SASR 266.
Finally, my conclusion in no way supports some of the more extreme suggestions made in academic debate since the decision of the High Court in Green v The Queen.[121] With respect, I consider that the decision of the majority of the High Court in Green was clearly correct; but I also consider that there was a great deal more evidence in that case supportive of the objective limb than there is in the present case.[122]
[121] (1996-1997) 191 CLR 334.
[122] See the summary by McHugh J (359-361) which was adopted by Brennan CJ (339). A very important point of distinction is what was referred to in Green as the “sexual abuse factor” which was absent from the evidence in the present case.
Application of the proviso - consideration
Although the grounds of appeal only make complaint in relation to the matter of provocation, in my view it is not simply a matter of immediately proceeding from a determination that provocation should not have been left to the jury to a determination that the proviso must be applied. Attention must be given to a number of potentially countervailing factors to which I now turn.
Considerations militating against the application of the proviso
It was not drawn to the attention of the appellant’s legal representatives prior to the hearing of the appeal that the application of the proviso might be in issue on the appeal. Prosecution counsel had made no reference in his outline of argument to any proposed submission that the Judge had erred in leaving the partial defence of provocation to the jury; indeed he had made no reference to the application of the proviso at all.[123] And, on the hearing of the appeal, prosecution counsel did not suggest that the Judge had erred in leaving the partial defence; rather, he submitted that the directions that his Honour gave were correct and sufficient.
[123] The outline of argument only suggested that “the evidentiary basis for the defence of provocation was thin”, this being in the context of an analysis of the grounds of appeal strongly submitting that the directions given by the trial Judge were free from appellable error.
Further, it may plausibly be argued that if resort to the proviso is to be based on an error by the trial Judge in leaving provocation to the jury, then the appellant should be able to rely on that error in a broader sense to defeat the application of the proviso. The primary defence case at trial was a denial of the infliction by the appellant of the relevant injuries but well before giving his closing address, defence counsel was informed that the Judge would be directing the jury as to the partial defence of provocation. There is no doubt that defence counsel structured his address on the basis that provocation was to be left to the jury and it is a fair estimate that almost 50 per cent of counsel’s substantive address was taken up in specifically addressing that partial defence.
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.
However, I repeat that it is appropriate when assessing the strength of the factor that the original jury convicted, to take into account that such conviction was returned in circumstances where defence counsel’s treatment of the manslaughter alternative in his closing address may have adversely affected his address concerning the primary defence.
Application of the proviso – conclusion
I do not consider that the appellant has been prejudiced by the fact that prosecution counsel did not rely on the proviso in his outline of argument. Particularly since the decision in Weiss v The Queen,[125] experienced criminal appellate counsel in South Australia have been aware that it is not unlikely that the proviso will be raised in cases such as the present. It was made clear during the hearing of this appeal that resort to the proviso was under consideration and no application for an adjournment or the opportunity to supply written submissions on the topic was made.
[125] (2005) 224 CLR 300.
Having regard to the great strength of the prosecution evidence on the charge of murder, and making full allowance in favour of the appellant for the fact that defence counsel, knowing manslaughter would not be left to the jury would entirely devote attention to the primary defence, I consider that a conviction of murder was inevitable.
I would apply the proviso and dismiss the appeal against conviction.
APPLICATION FOR PERMISSION TO APPEAL AGAINST SENTENCE
The Judge sentenced the applicant to life imprisonment (the mandatory sentence for the crime of murder) and fixed a non-parole period of 23 years. An application for permission to appeal against sentence was referred to this Court for consideration together with the appeal against conviction. The proposed grounds of appeal against sentence are as follows:
1. The nonparole period imposed by the Learned judge is manifestly excessive having regard to the total period that the applicant had spent in custody since the applicant’s arrest, the circumstances of the offence and matters personal to the applicant.
2.The Learned Judge erred in failing to identify and have regard to the objective and subjective features of the offending that affected its level of seriousness when fixing a nonparole period in excess of the minimum period prescribed.
3.The Learned Judge failed to have adequate regard to the conduct of the deceased and its context:
3.1 in determining that special reasons did not exist to impose a nonparole period less that the prescribed minimum.
3.2 in reasoning that having regard to the prescribed minimum penalty, the same nonparole period would have been arrived at and without having regard to all the other factors relevant to sentencing.
3.3 in failing to have regard to the conduct of the victim and its context in determining whether and to what extent the conduct of the victim mitigated the applicant’s offending in relation to the fixation of a nonparole period that exceeded the prescribed minimum.
4.The Learned Judge erred in failing to give any or adequate weight to the applicant’s mental impairment, psychiatric and psychological deficits in his evaluation as to whether and to what extent, the applicant was an appropriate medium for general deterrence and in relation to personal deterrence.
5.The Learned Judge erred in finding that the applicant was a continuing danger to the community. Further, His Honour erred in having regard to that factor without giving adequate reasons in relation to how the finding informed the fixing of the nonparole period.
I will consider the proposed grounds of appeal in the following order: grounds 2 and 3 together; grounds 4 and 5 together; and finally ground 1.
Proposed grounds 2 and 3 of appeal
The applicant seeks to argue that the Judge erred both in the process of refusing to fix a non-parole period of less than 20 years and in fixing a non-parole period in excess of 20 years. Section 32A, Criminal Law Sentencing Act 1988 (the Act) addresses both matters and provides:
32A—Mandatory minimum non-parole periods and proportionality
(1) If a mandatory minimum non-parole period is prescribed in respect of an offence, the period prescribed represents the non-parole period for an offence at the lower end of the range of objective seriousness for offences to which the mandatory minimum non‑parole period applies.
(2) In fixing a non-parole period in respect of an offence for which a mandatory minimum non‑parole period is prescribed, the court may—
(a)if satisfied that a non-parole period that is longer than the prescribed period is warranted because of any objective or subjective factors affecting the relative seriousness of the offence, fix such longer non-parole period as it thinks fit; or
(b)if satisfied that special reasons exist for fixing a non-parole period period as it thinks fit.
(3) In deciding whether special reasons exist for the purposes of subsection (2)(b), the court must have regard to the following matters and only those matters:
(a)the offence was committed in circumstances in which the victim's conduct or condition substantially mitigated the offender's conduct;
(b)if the offender pleaded guilty to the charge of the offence—that fact and the circumstances surrounding the plea;
(c)the degree to which the offender has cooperated in the investigation or prosecution of that or any other offence and the circumstances surrounding, and likely consequences of, any such co‑operation.
(4) This section applies whether a mandatory minimum non‑parole period is prescribed under this Act or some other Act.
In connection with the refusal to fix a non-parole period of less than 20 years, the applicant primarily complains of the following passage in the Judge’s sentencing remarks:
I do not accept that the conduct of Mr Negre in making a statement that he would pay you for sex, in the background of having made an inappropriate gesture and statement to you earlier, amounted to conduct by him which substantially mitigates your conduct. In my view the section is not enlivened. Even if I were to conclude that the section is enlivened and that Mr Negre’s conduct was such that it substantially mitigated your conduct, I would conclude that your conduct does not support the fixing of a non-parole period that is shorter than the mandatory non-parole period of 20 years imprisonment. In arriving at that conclusion, I have regard to the fact that Parliament has enacted that the minimum non-parole period of 20 years imprisonment is appropriate for offences at the lower end of the range of objective seriousness. In my view, all the circumstances to which I have referred, and the circumstances leading up to the commission of the crime, and the circumstances of the crime itself are such that this is not a case in which it is appropriate to set a non-parole period of less than 20 years imprisonment, even if special reasons might exist.
The applicant submits that, as a general proposition, “provocative conduct” (less than that required to reduce the verdict from murder to manslaughter) can, according to the circumstances, enliven the discretion to reduce the mandatory non-parole period that exists pursuant to s 32A of the Act. I accept that basic submission.
However, the problem for the present applicant is that the Judge did not suggest that “provocative conduct” (less than that required to reduce the verdict from murder to manslaughter) can never enliven the discretion under s 32A of the Act; rather, his Honour did no more than state that, in his view, the particular evidential matrix in this case was insufficient to enliven the discretion.
But of critical importance, the Judge also observed that, in any event, the exercise of a discretion to impose a non-parole period below 20 years simply does not arise in circumstances where a period in excess of 20 years is appropriate.
His Honour ultimately concluded that the appropriate non-parole period was 23 years. In reaching that conclusion, his Honour clearly took into account a number of matters that militated in favour of the applicant. His Honour found that “the two incidents” (the initial incident outside on the patio, and the second incident in the family room) had in fact occurred and had, in a real sense, caused the applicant to lose his temper and behave as he did. His Honour also found in favour of the applicant, that his conduct was in no way “premeditated” but was to be understood as a reaction to the conduct of the deceased and in this sense it was a mitigating factor. I will refer to this factor as “the provocation factor” in the general sense of the word rather than the strict legal sense in which it has been used in connection with the conviction appeal. To this end his Honour stated:
I accept that you were offended by what Mr Negre had said and you did not treat it as a joke. … For the purposes of sentencing you, I accept that what Mr Negre said caused you to become angry and contributed to your reaction in punching him and knocking him to the ground. You punched and kicked Mr Negre whilst he was on the ground. I accept that you were still angry at the time that you attacked Mr Negre whilst he was on the ground. Whilst Mr Negre was on the ground you went to the kitchen area and took a knife. You then stabbed Mr Negre numerous times in the chest, to his side and to his face. The attack upon Mr Negre was a brutal attack upon a person who did not expect to be punched or attacked in the way in which you, Mr Lindsay, attacked him.
Your counsel submits, and I accept, this was not premeditated conduct. It was put on your behalf you were provoked by Mr Negre’s comment in the kitchen that he would pay you for sex. I accept Mr Negre’s comment made you angry. However, your response in hitting and then stabbing him was a totally disproportionate response.
It is thus clear that the Judge did take the provocation factor into account in the applicant’s favour when fixing the non-parole period as 23 years. However, he also correctly recognised that this matter had to be considered in conjunction with all of the other matters relevant to fixation of the non-parole period.[126]
[126] I add that the Judge referred to a submission on sentence that the applicant had been sexually abused as a child. The applicant gave no evidence at trial, or on the sentencing proceedings, giving details of such a matter or claiming that it played a part in his reaction and behaviour on the occasion of the deceased’s death. I consider that the Judge was correct in declining to take that matter into account when fixing the non-parole period.
The Judge was entitled to fix a longer period than 20 years because he was entitled to be “satisfied that a non-parole period that is longer than the prescribed period is warranted because of any objective or subjective factors affecting the relative seriousness of the offence”.[127] In referring to such objective and subjective factors (apart from the provocation factor) his Honour stated:
I accept that you have a low intellectual function and that you have difficulty in concentrating for long periods of time. Nonetheless, I am satisfied that you are well aware of what is and what is not appropriate behaviour and what is lawful and unlawful conduct. You have shown no remorse. Given your past history, it is my view that your prospects of rehabilitation are poor. In my view you present as a person who is a continuing danger to the community. I am mindful that the sentence I impose must strike a balance between your personal circumstances and the requirements to set a sentence which has adequate regard to the protection of the community and personal and general deterrence. Your actions call for a lengthy non-parole period.
[127] Criminal Law (Sentencing) Act 1988, s 32A(2)(a).
It was clearly within the Judge’s discretion to assess the proper non-parole period as 23 years and the contrary is not reasonably arguable.
That conclusion really signals the end of the road for the applicant; an inquiry as to whether his Honour could have imposed a period of less than 20 years (had he wished to do so) is academic, and permission to appeal should be refused on proposed grounds 2 and 3 of appeal.
Proposed grounds 4 and 5 of appeal
The Judge’s sentencing remarks demonstrate that his Honour expressly and carefully considered the applicant’s long medical history. In addition, his Honour had heard lengthy oral evidence prior to the trial as to the applicant’s fitness to stand trial. Thus his Honour observed:
There is no doubt that you suffer an intellectual disability and you have significant cognitive deficits. I have read and had regard to numerous medical reports relating to your head injury those reports having been written between 14 July 1994 and 13 October 2005.
Prior to the trial, there was an issue as to whether you were fit to stand trial. I heard evidence from three psychologists, all of whom reported on your psychological condition. I also received reports from Dr Raeside, a psychiatrist, who confirmed that you did not suffer from any mental illness.
I concluded that you have the capacity to understand and respond rationally to the charge, and that you are able to understand sufficient of the proceedings to be fit to stand trial. I do accept that you have an intellectual disability of moderate severity. Nevertheless, I am satisfied that you are able to cope and arrange your life without the need of a carer or regular medical treatment.
Mr Balfour described you as having low esteem, that you find difficulty in confronting new tasks and that you are vulnerable to negative peer group pressure. As a consequence of that you engage in inappropriate attention seeking behaviour. You have difficulty in learning from your mistakes. You have difficulty in experiencing empathy towards others, including victims.
His Honour was justified in concluding on the material before him that the applicant was a continuing danger to the community and that an element of personal deterrence was required. There is no evidence that the condition of the applicant is such that any element of public deterrence should be eschewed in this case.
Proposed grounds 4 and 5 of appeal are not reasonably arguable and permission to appeal on those grounds should be refused.
Proposed ground 1 of appeal
I have left proposed ground 1 of appeal to last since it may have been wished to call in aid some or all of the matters sought to be argued under the other proposed grounds of appeal.
Having regard to all of the facts and circumstances, I consider that it is not reasonably arguable that the non-parole period is manifestly excessive. Permission to appeal on proposed ground 1 of appeal should be refused.
Conclusion as to the application for permission to appeal against sentence
I would refuse permission to appeal against sentence
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