R v Lovegrove - [2007] SASC 283

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v LOVEGROVE
[2007] SASC 283
Judgment of The Court of Criminal Appeal
(The Honourable Justice Nyland, The Honourable Justice Anderson and The Honourable Justice Layton)
1 August 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE - MISDIRECTION AND NON-DIRECTION
Appeal against conviction - complaint as to adequacy of directions with respect to defence case evidence of deceased's propensity to violence and statements made by the appellant on admission to hospital - whether misdirection as to the question of intent - no miscarriage of justice as a result of notes from jury not being read on to transcript - appeal dismissed.

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Appeal against sentence - appellant convicted of murder - whether non-parole period of 16 years manifestly excessive - whether trial judge erred in failing to take into account shorter life expectancy of aboriginal males - permission to appeal refused.
Vallance v The Queen (1961) 108 CLR 57; Inge v The Queen (1999) 199 CLR 295, applied.
R v Moloney [1985] 1 AC 905; R v Crabbe (1985) 156 CLR 464; R v Green (1949) 34 CrAppR 33; R v Ion (1950) 34 CrAppR 152; R v Crowe (1985) 16 ACrimR 478; R v Yuill (1994) 34 NSWLR 179; Re Knowles [1984] VR 751; R v PP (2002) 135 ACrimR 575; Black v R (1993) 279 CLR 44; R v Stewart (1984) 35 SASR 477, considered.

R v LOVEGROVE
[2007] SASC 283
Court of Criminal Appeal: Nyland, Anderson and Layton JJ

NYLAND J: This is an appeal against conviction and sentence.
On 1 September 2006, the appellant was convicted of the murder of Vicki Koch at Maylands on 17 April 2005. On 28 September 2006, the appellant was sentenced to life imprisonment with a non-parole period of 16 years.
On 21 September 2006, the appellant filed an application for permission to appeal against his conviction. On 19 October 2006, he filed an application for permission to appeal against sentence.
The application for permission to appeal against conviction contained 12 proposed grounds of appeal. On 23 February 2007, permission to appeal against conviction was granted with respect to ground 5 only, that being a complaint as to the judge’s direction to the jury concerning the issue of intent as it related to murder. Permission to appeal against sentence was refused. On the hearing of the appeal the appellant did not pursue proposed grounds 3, 6 and 10 but sought permission from the court to appeal with respect to the remaining grounds upon which permission was refused in addition to ground 5 upon which permission was granted. The appellant also sought permission to appeal against sentence. In order to determine those matters, the court heard the substantive argument as to each of them.
Background:
The appellant entered into a relationship with Ms Koch in about September 2004 and on 17 April 2005 they were residing together in the appellant’s unit at Maylands. It was the prosecution case at trial that the appellant murdered Ms Koch on the day in question by stabbing her about ten times in the chest. At about 8 pm, a neighbour of the appellant saw him outside the unit. The appellant appeared to have blood on his clothing and upper body. The neighbour called an ambulance and when ambulance officers entered the unit they found the appellant lying on the floor of the bathroom in a semi-conscious state. The appellant was given treatment for an injury to his left arm. The rest of the unit was checked in the course of which the body of Ms Koch was located on the bed in the bedroom. A steak knife was on the bed in close proximity to her head. There was blood on the floor, doors and on the walls of the bedroom as well as damage to the window. Glass from the broken window was found in Ms Koch’s hair.
The appellant was taken to the Royal Adelaide Hospital for treatment of his wounds. Evidence was given at trial by a number of witnesses who treated the appellant on his admission to the hospital. Nurse Jones said that the appellant’s eyes were “clenched close” and that he was mumbling that he was “very sorry” he “didn’t mean to” and “I think I killed my partner”. Nurse Czernezkyj reported the appellant as having said either “I stabbed her” or “I killed her”. Another witness, Ms Haywood (now Dr Haywood) gave evidence that the appellant said he “had just killed his girlfriend”.
A blood test taken at the hospital disclosed that the appellant had a blood alcohol level of .145%, and methadone of .12%. Diazepam and a low level of cannabis was also found in his blood. Ms Koch’s blood was later tested and disclosed that at the time of her death she had a blood alcohol level of .23% and methadone at .4% as well as diazepam and cannabis.
Dr Cala was the pathologist who examined the body. He said Ms Koch weighed 45 kgs and was 161 cms tall. Dr Cala found a number of minor injuries to the body by way of bruises and abrasions. There were ten wounds to her chest. Dr Cala said the cause of death was multiple stab wounds, seven of which would probably have been fatal of themselves as they had penetrated vital organs including the heart.
The appellant gave evidence at the trial. He admitted that he had stabbed Ms Koch but claimed that he was acting in self-defence. Three other witnesses gave evidence for the defence. Mr Nikkanen was the neighbour who called the ambulance. Sergeant Tiekstra gave evidence of Ms Koch behaving in an aggressive manner when affected by alcohol on an occasion on 6 August 2004. Mr Wingfield gave evidence that he had been stabbed by Ms Koch in similar circumstances in May 2001.
The evidence given by the appellant raised the possibility that he had been provoked by Ms Koch as a result of which he had lost control and had stabbed her before he regained control. Accordingly, although not asked to do so by the defence, the judge left provocation to the jury as well as directing them on the topic of self-defence.
Proposed grounds 1, 2 and 4 – the Judge’s directions as to the defence case:
These three proposed grounds can be dealt with together as each is concerned with the way in which the defence case was left to the jury. No criticism was made of the directions given by the learned trial judge as to self-defence or provocation. The appellant, however, complains that, in directing the jury on those topics, the judge failed adequately to summarise the defence case, in addition to which she failed adequately to explain to the jury the relevance of the evidence of witnesses Tiekstra and Wingfield. There is also a complaint that the judge failed to give the jury assistance as to the use they could make of the statements made by the appellant to the witnesses at the Royal Adelaide Hospital.
After explaining the law to the jury with respect to self-defence and provocation, the judge said:
[The appellant] contends that at least for the first two strikes he acted in genuine self-defence and that what he did was reasonably proportionate to the threat he faced. If that is reasonably possible and that response of his continued throughout the episode, then the [appellant] is not guilty of any offence. On the other hand, if you are satisfied that the [appellant] did not genuinely believe that it was necessary and reasonable to stab Ms Koch repeatedly in his own defence – and there I am referring to the first limb of self-defence; paragraph 4(a) on the sheet – then the question of self-defence disappears from the trial.
I will say that again, ladies and gentlemen. On the other hand, if you are satisfied that the [appellant] did not genuinely believe that it was necessary and reasonable to stab Ms Koch repeatedly in his own defence, then the question of self-defence disappears from the trial.
The judge then explained the circumstances in which a verdict of manslaughter would be appropriate and said:
Here, the [appellant] has told you that he recalls stabbing Ms Koch only twice and that he did that in self-defence. If you think it reasonably possible that the balance of the wounds were also inflicted in an attempt to defend himself – in other words, the whole episode occurred so quickly that all the [appellant’s] conduct was motivated by the urge to defend himself – then he would not be guilty of anything.
The judge then turned to the question of provocation in the course of which she said:
In this case, we are concerned about the conduct of Ms Koch. If the ordinary man might have been provoked by Ms Koch’s conduct to do what the [appellant] did, then notwithstanding the satisfaction that the [appellant] had the criminal intention required for murder, he would not be guilty of the murder, but would, in those special and particular circumstances, be guilty of a lesser offence of manslaughter. Well, that is an encapsulation. I shall say a little more about it and break it down into its component parts.
The judge later discussed the evidence relating to the respective blood alcohol levels of the appellant and Ms Koch. She explained the effect that the consumption of alcohol may have had on the appellant’s perception of events and the threat he believed he faced. She then reminded the jury of the evidence of the appellant as follows:
Before turning to that evidence, let me encapsulate the defence in a few words. The defence case is that what occurred that evening was in response to an attack upon the [appellant] by Ms Koch with a knife. The [appellant] says that attack made him fear for his life, and what happened thereafter arose from that. He says he is not guilty of any crime in respect of her death.
In evidence, the [appellant] told you that he and Ms Koch had been together since about September 2004. He said they had a loving relationship, but things went wrong from time to time. On 17 April, they were both drinking. Extra stocks had been obtained from the Norwood Hotel during the day. They had listened to music and played cards and danced during the afternoon and evening.
Later on, she became a bit niggly and he had tried to calm her down. A song came on to the radio that made her melancholy. It was a Crowded House song. She was talking about the past and about her son. Then she started to pick a fight. She became rowdy. She accused Mr Lovegrove of being unfaithful and she was swearing at him and calling him ‘Bob’. Again, he tried to comfort her and calm her down. She was calling out through the back door, in the direction of Krystyna Holmes’ home, and accusing him of being unfaithful with Ms Holmes.
The [appellant] told you he threatened to leave, saying he could not handle it. He went into the bedroom and she came rushing at him. He put his arms out and then she stabbed him in a vicious manner. He said he thought she was going to kill him. He said he did not notice a wound at the time, but when he looked at his arm, there was a big slash on it. He said ‘I knew I was scared and my life was in danger’. He said he then remembered stabbing her twice and, next thing, he came to and was looking at her on the bed. He stared at her for perhaps five minutes and started putting his arms around her. He gave her mouth-to-mouth resuscitation. He lifted up her tank top and saw the injury. He tried walking with her and took her into the lounge and then picked her up and carried her back to the bed and laid her there.
He said he was crying. He was finding it hard to breathe and tried to stand up, but had no strength. He wanted to go next-door to his neighbour’s and he crawled out to the back fence and kicked the fence so that Mark could hear him. The next thing he remembered was being in hospital. There in hospital he said ‘I had an idea that she was dead’.
Having given that direction, the judge went on to summarise the addresses of counsel. In my opinion the judge, fairly and in clear terms, drew the jury’s attention to the relevant parts of the defence case as it related to self-defence and provocation. This was not a long trial and the evidence of the appellant fell into a narrow compass, particularly as he only had a limited memory of the events of that night. The jury could not have been left in any doubt as to the relevant factual matters arising out of the defence case as they related to the issues of self-defence and provocation.
The direction given by the judge as to the evidence of the Royal Adelaide Hospital witnesses was, however, quite brief. Having referred to the appellant at about 9.36 pm having a Glasgow coma scale score of 14, the judge summarised the evidence of the witnesses as to the statements made by the appellant and said:
You will make what you will of those statements in the context of what [the appellant] now says.
When summarising the prosecution case on the question of intention, the judge referred to the prosecutor’s submission that:
… [T]he state of the unit, the condition of the body and, indeed, the things said in hospital by [the appellant] all point to a fight, a loss of temper, and a deliberate and intentional killing. (emphasis mine)
Counsel for the appellant complained that the judge failed to go on to explain to the jury that these statements were also consistent with the defence case and did not necessarily support the view that the stabbing was intentional nor that the appellant had an intention to kill or cause grievous bodily harm. In that way the summing up was unbalanced and was an unfair way of leaving the evidence to the jury.
The focus of defence counsel’s address appears to have been on the possible unreliability of what these witnesses thought they had heard, rather than discounting the prosecutor’s argument as to the support to be gained from this evidence on the question of intention, so it is not surprising that the judge did not put the contrary argument to the jury. The evidence was, however, equivocal and that must have been obvious to the jury. Perhaps the judge could have said more, but I do not think that the way the evidence was eventually left to them has resulted in any prejudice to the appellant.
There remains the complaint with respect to the evidence of Sergeant Tiekstra and Mr Wingfield. Sergeant Tiekstra’s evidence related to an incident which occurred in 2004. It appeared that in the course of his duties as a police officer, Sergeant Tiekstra had arrested Ms Koch when she had been behaving in a disorderly manner in Hindley Street. She had been mildly affected by alcohol on that occasion and had abused police officers. She apparently also kicked the door of her cell after her arrest. The judge reminded the jury of this evidence when dealing with Ms Koch’s state of intoxication on the night she was killed and said:
In this case, you should bear in mind both these people were significantly affected, probably mostly by alcohol. Dealing with [Ms Koch], that might have meant that she was more argumentative or abusive than she would otherwise have been. You have heard the evidence from Sergeant Tiekstra that she was certainly acting abusively and rather offensively in Hindley Street on the occasion he described when she was intoxicated. It might have also caused her to exhibit emotions such as sorrow or anger which she might otherwise have kept to herself.
Mr Wingfield gave evidence that his brother had lived with Ms Koch for some years. Mr Wingfield said he did not like Ms Koch and on one occasion in about May 2001, when they had been drinking, they had argued in the course of which Ms Koch had stabbed him. The police did not, however, proceed with any charges when Mr Wingfield said he did not wish the matter to go any further.
The judge dealt with Mr Wingfield’s evidence quite succinctly. She said:
It is, of course, for you to assess Mr Wingfield’s evidence. As I understand it, it was called to demonstrate that, whilst Ms Koch might have been of slight stature, she was not afraid of taking on a bigger man and, indeed, of using a knife against such a man, particularly when she had been drinking.
Counsel for the appellant complained that the judge failed to put the evidence of these two witnesses in context with the defence case as a matter of probative evidence on the topic of self-defence bearing in mind the appellant’s evidence of a sudden erratic attack upon him by the deceased.
Counsel for the appellant referred to the decision of the Full Court of the Supreme Court of Victoria in Re Knowles[1], in which it was held that evidence of the deceased’s past violent conduct was of fundamental importance as (at 766):
… [T]hat evidence demonstrated that the deceased, in doing what the petitioner said she did before her death, was conforming to similar past conduct, the more probable it was that the petitioner was giving a truthful account of what occurred.
[1] [1984] VR 751
Counsel for the appellant also relied on the decision in R v PP[2], in which Nettle J held that evidence of the deceased’s convictions for violent offences was relevant to the issues of self-defence and provocation and should go to the jury. Specifically, Nettle J said that (at 579):
If it is put to the jury that the accused acted in self-defence, evidence that the victim had previously been convicted of violent offences could lead the jury more readily to conclude that the victim behaved so violently at the time in question as to entitle the accused to react with the force that was used by way of self-defence. Equally, if the matter is put to the jury on the basis of provocation, evidence that the accused had previously been convicted of offences involving violence could lead the jury more readily to conclude that the way in which the victim behaved on the night in question not only constituted provocation but was provocation of a kind that actually provoked the accused to react in the way in which he did.
[2] (2002) 135 A Crim R 575
In accordance with those authorities, as well as others cited by counsel in the course of argument, the evidence of both Sergeant Tiekstra and Mr Wingfield was admissible and relevant to the defence case. That evidence was, however, before the jury. The judge reminded the jury of Sergeant Tiekstra’s evidence which highlighted the abusive and violent way in which Ms Koch had behaved in the past when intoxicated. The evidence of Mr Wingfield demonstrated a propensity for Ms Koch to behave violently to the extent of attacking a person of a larger stature with a knife. The jury could not have been left in any doubt about the essence of their evidence and its relevance to the defence case, and it was unnecessary for the judge to say more.
I would refuse permission to appeal with respect to each of these grounds.
Ground 5 – the direction as to intention:
This ground raises a question of law as the appellant complains that the judge misdirected the jury as to the meaning of intent. The judge in her summing up when discussing the elements to be proved said:
Murder can take one of a number of forms. In essence, a person is guilty of murder if he deliberately kills another person, unlawfully, intending either to kill that person or to inflict grievous bodily harm on that person.
She went on to explain that the second element required that the act causing the death be performed deliberately and said:
As we all know, a wound or wounds can be inflicted accidentally as well as deliberately, and they can be inflicted deliberately but without any intention to seriously harm another person. Here there were ten wounds to one area of the body. It is a matter for you, but that would seem to exclude accident. But, as I say, you can only find that there was a murder committed in this case if you are satisfied that, in stabbing Ms Koch, the [appellant] acted deliberately, intending to cause the sort of injury that he did in fact cause.
The next element relates to the intention of the [appellant]. He must have intended, in stabbing Ms Koch, to cause death or grievous bodily harm to her. Grievous bodily harm simply means really serious bodily harm. It is a matter for you, but you could take the view that plunging a knife into any part of a body would be an intention to cause really serious bodily harm.

No complaint is made with respect to those directions, nor the memorandum provided to the jury which sets out the elements of murder and manslaughter. After the jury retired to consider its verdict, they returned to ask the judge the following questions on the subject of intent:
Re the meaning of intent as it relates to murder: element 3.
(a) Does it mean specifically what he is thinking at the time he is stabbing her?
(b)Mr [Pearce] has said in his summing up; ‘That we can infer Mr Lovegrove’s intention from his actions’ … is this correct?
After discussion with counsel, the learned trial judge answered the questions in the following way:
The first one, for the benefit of the transcript, is said to be regarding the meaning of intent as it relates to murder – element 3. Question: ‘Does it mean specifically what he is thinking at the time he is stabbing her?’
The second element – that the act is performed deliberately – relates to this issue as well. Of course, the third element – the intention – goes further than the second element, but in what I say, I guess I will be rather merging the two. First of all, as a bottom line starting point, the [appellant] would have to realise the nature of the act he was performing of stabbing. That really relates to the second element. He would have to realise the nature of that act and he would have to proceed with that act, having that realisation. He knows what he is doing, he knows he is stabbing the deceased.
Then, as a step on from that, he must understand the sort of result that that act will have. That is, it will likely cause death or grievous bodily harm. So he has to have that understanding of that, or realisation, if you like. Whether or not he articulates that thought in his head is not really the issue, but he must have that realisation or understanding.
Just to illustrate the difference between having an understanding of something and articulating it, let me give you a most trite example, which is nothing like, of course, stabbing someone. That is the example of when I drive a car. There are all sorts of things that I do when I drive a car that I do quite instinctively, like change gears or brake or accelerate or put the indicator on. Changing gears is a good example. We get to know what we need to do, when we need to do it, and we tend to change gears as required. We do not say to ourselves “I am now going to change from third to fourth gear”, but, of course, we intend to do that.
As I say, that is something we do, that act of driving, automatically, and we do it so often that it becomes instinctive. That is very far from this situation where the [appellant] is stabbing someone with a knife, which most of us never do in our lives. So bear that in mind. That is just to explain that the [appellant] would not have to actually articulate what his intention is, to be found to have intended the act. But one way or the other, whether he articulates it, whether he is saying it, whatever is happening, he must intend it in the natural and ordinary meaning of that word. That is the first question. I hope that helps, but, as I say, it is not an easy question.
The second question, for the transcript is: ‘Mr Pearce has said in his summing up that we can infer Mr Lovegrove’s intention from his actions; is this correct?’.
The short answer is that you may infer intention from a person’s actions. Intention can be inferred or deduced or concluded from what a person says, from what person does and the context in which they say and do those things. And sometimes they will say things before or after the event which will also throw light on what their intentions were. So if someone says “I am going to go to the shop in five minutes and get myself a sandwich” and then it turns out later they have a sandwich, then it is going to be fairly clear that, in the meantime, they did what they said they were going to do. We do not have any evidence like that. That is just an illustration that a person’s words and their actions are the way in which we infer or deduce what they intended.
Counsel for the appellant submitted that in directing the jury in this way, the judge had misdirected them as to the meaning of intent as it related to murder. He referred to his outline of argument in which he said that the judge misdirected the jury that:
5.1The ‘intent’ could be considered by considering, as an example from a different context, the deliberate and intended act of a driver changing the gears of a motor vehicle. …
5.2That the intention of the [appellant] could be inferred from his actions.
5.3Regard may be had to foresight of consequences as a matter to be taken into account in determining whether or not a person intended those consequences.
5.4The further direction in response to the question from the jury was a serious misdirection in that it tended to equate the specific intent necessary to be found by the jury with that of recognition or knowledge of the likely consequences of ‘stabbing’ as a matter of hindsight and does not accord with the decisions of the High Court in Parker v The Queen and Hawkins v The Queen.
5.5It was a misdirection to expand or give the example provided in the redirection as it had the tendency to divert the jury from their role in finding a specific intent on the evidence.
5.6When redirecting the jury on the issue of intention in response to the question: ‘Mr Pearce has said in his summing up that we can infer Mr Lovegrove’s intention from his actions; is this correct?’ the learned trial judge informed the jury that: ‘Yes, Mr Pearce is right and you should …’.
5.7The further direction did not simply identify matters that the jury might take into account in determining the intent of the appellant but required them to do so as a matter of law in using the imperative ‘should’ and without making it clear to the jury that it was the actual intention of the appellant which is in issue not that of a hypothetical average or reasonable man. (footnotes omitted)
In R v Moloney[3], Lord Bridge said (at 926):
The golden rule should be that, when directing a jury on the mental element necessary in a crime of specific intent, the judge should avoid any elaboration or paraphrase of what is meant by intent, and leave it to the jury’s good sense to decide whether the accused acted with the necessary intent, unless the judge is convinced that, on the facts and having regard to the way the case has been presented to the jury in evidence and argument, some further explanation or elaboration is strictly necessary to avoid misunderstanding. In trials for murder or wounding with intent, I find it very difficult to visualise a case where any such explanation or elaboration could be required, if the offence consisted of a direct attack on the victim with a weapon, except possibly the case where the accused shot at A and killed B, which any first year law student could explain to a jury in the simplest of terms. Even where the death results indirectly from the act of the accused, I believe the cases that will call for a direction by reference to foresight of consequences will be of extremely rare occurrence. I am in full agreement with the view expressed by Viscount Dilhorne that, in Reg v Hyam [1975] AC 55, 82 itself, if the issue of intent had been left without elaboration, no reasonable jury could have failed to convict. I find it difficult to understand why the prosecution did not seek to support the conviction, as an alternative to their main submission, on the ground that there had been no actual miscarriage of justice.
[3] [1985] 1 AC 905
In this case, the judge was required to elaborate on what she had said earlier, as a result of the questions asked by the jury. In answering the first question, she explained to them that at the time of committing the act causing the death, the appellant had to understand the sort of result that the act would have, that is, that it was one likely to cause death or grievous bodily harm. The judge explained that the appellant did not have to articulate that thought in his head, provided he had that understanding at the time he did the act causing the death, and then endeavoured to explain the difference between articulating the thought and having an understanding of the consequences of an act. She concluded that “… one way or the other, whether he articulates it, whether he is saying it, whatever is happening, he must intend it [the consequences of his act] in the natural and ordinary meaning of that word”. In order to explain these matters in more simplistic terms, the judge gave the jury the example of changing gears when driving a car.
Counsel for the respondent acknowledged that the answer given by the judge was a little unusual as it appeared to move from the actual intent to bring about a specific purpose as opposed to bringing about something that was likely. He submitted, however, that the judge had not erred in the directions she gave. He referred to R v Crabbe[4], in which the accused was charged with murder, having caused the death of several persons by intentionally driving a prime mover and trailer through the wall of a motel into a bar. The trial judge told the jury (at 467) that they could convict him if they were “satisfied beyond reasonable doubt that he foresaw the possibility that there might be some people in the bar, but didn’t take any step that might have been available to him to find out whether there were any people there or not, before he went ahead and drove the vehicle in”.
[4] (1985) 156 CLR 464
The High Court held that this was a material misdirection and said (at 467-468):
The Criminal Code Act 1983 (NT) had not been passed at the times material to this case and the rules of the common law governed the question what mental element is necessary to constitute the crime of murder, or, to use the traditional terminology, what is meant by malice aforethought. That question was answered in Stephen’s Digest of Criminal Law, 1^st ed (1877) in Art 223 which, so far as is relevant, is as follows:
‘… Murder is unlawful homicide with malice aforethought. Malice aforethought means … (a) An intention to cause the death of, or grievous bodily harm to, any person, whether such person is the person actually killed or not; (b) Knowledge that the act which causes death will probably cause the death of, or grievous bodily harm to, some person, whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused …’
There has been in this Court some difference of opinion as to whether the knowledge which an accused person must possess in order to render him guilty of murder when he lacks an actual intent to kill or to do grievous bodily harm must be a knowledge of the probability that his acts will cause death or grievous bodily harm (as Stephen’s Digest of Criminal Law holds) or whether knowledge of a possibility is enough. In Pemble v The Queen [(1971) 124 CLR 107 at 118-121], Barwick CJ thought it sufficient that death or grievous bodily harm should be foreseen as possible but McTiernan and Menzies JJ were of the opinion that it was necessary that the accused should have foreseen or known (the words are used without any apparent distinction) that death or grievous bodily harm would be a probable or likely (both expressions are used) consequence of the act. The matter was considered again in La Fontaine v The Queen [(1976) 136 CLR 62]. In that case Stephen J agreed with the opinion expressed by Barwick CJ in Pemble v The Queen that it was enough that the accused foresaw the possible consequences of his acts but Barwick CJ himself appeared now to think that it is an open question whether it is sufficient if the accused appreciated a possibility rather than the probability of serious harm. Gibbs and Jacobs JJ held that in a case of this kind an accused would not be guilty of murder unless he foresaw that death or grievous bodily harm was a probable consequence of his behaviour and although Mason J left the question open he noted that the suggestion made by Barwick CJ in Pemble v The Queen was not a view shared by McTiernan and Menzies JJ in that case and that it was at odds with the speeches of the members of the House of Lords in Reg v Hyam. Clearly the balance of opinion on this Court has been in favour of the view that the mental state necessary to constitute murder in a case of this kind is knowledge by the accused that his acts will probably cause death or grievous bodily harm. The view that knowledge of a possibility is not enough has been accepted by the Full Court of the Supreme Court of Victoria (Reg v Jakac [[1961] VR 367]; Reg v Sergie [[1974] VR 1]; Nydam v The Queen [[1977] VR 430]; Reg v Windsor [[1982] VR 89] and by the Full Court of the Supreme Court of South Australia: Reg v Hallett [[1969] SASR 141]. (footnotes omitted)
And further (at 469):
The conduct of a person who does an act, knowing that death or grievous bodily harm is a probable consequence, can naturally be regarded for the purposes of the criminal law as just as blameworthy as the conduct of one who does an act intended to kill or to do grievous bodily harm. Indeed, on one view, a person who does an act knowing its probable consequences may be regarded as having intended those consequences to occur. … If an accused knows when he does an act that death or grievous bodily harm is a probable consequence, he does the act expecting that death or grievous bodily harm will be the likely result, for the word ‘probable’ means likely to happen.
Although the answer given by the judge to the first question from the jury traversed what counsel for the respondent described as both “direct and oblique intent” without discriminating between them, I do not consider that the direction had the effect of instructing the jury that proof of anything less than either of those forms of intent would suffice. The directions did not introduce any element of objectivity. The judge did not direct the jury that an intent could be presumed as a person is taken to intend the natural consequences of their actions, nor did she say anything that could have been understood by the jury in that way.
As far as the answer to the second question is concerned, the judge correctly directed the jury that the necessary intent could be inferred from all of the proven circumstances as the prosecutor asked the jury to do in his address. To draw an inference from proven facts is not to presume the formation of an intent. Rather it is to determine that such an intent had actually been formed as a result of scrutinising all of the evidence which has been given as to that matter. As Wyndeyer J said in Vallance v The Queen[5]:
The criminal law punishes wicked acts. It regards wickedness as, in general, depending upon the mind of the accused when he did the act charged. What a man does is often the best evidence of the purpose he had in mind. The probability that harm will result from a man’s acts may be so great, and so apparent, that it compels an inference that he actually intended to do that harm. Nevertheless, intention is a state of mind. The circumstances and probable consequences of a man’s act are no more than evidence of his intention. For this reason this Court has often said that it is misleading to speak of a man being presumed always to intend the natural and probable consequences of his acts. And this, I do not doubt, is so. Because intent is a state of mind, it becomes necessary to ask what is that state of mind; what for the purposes of the criminal law is comprehended in the idea of an intentional act. Under the law apart from the Code, an accused would be guilty of unlawfully wounding if his actual purpose was to inflict a wound: he would also be guilty if, without any actual purpose to wound anyone, but foreseeing that what he was about to do was likely to cause a wound to someone, he yet went on to do it. The common law treats what was done recklessly, in that way, as if it had been done with actual intent. It says that a man, who actually realizes what must be, or very probably will be, the consequence of what he does, does it intending that consequence. The word ‘intentional’ in the Code carries, I think, these concepts of the common law. I therefore do not read s.13 as altering these principles. It is, I may add, in my view undesirable to insist upon desire of consequence as an element in intention. There is a risk of introducing an emotional ingredient into an intellectual concept. A man may seek to produce a result while regretting the need to do so. (emphasis mine)
[5] (1961) 108 CLR 57 at 82
I would dismiss this ground of appeal.
Proposed grounds 7 and 8 – notes from the jury:
These two grounds can be dealt with together as each is concerned with questions from the jury. The jury retired to consider its verdict at 11.10 am on 31 August 2006. I have already mentioned the questions from the jury on the question of intent (the first note). They were received at about 1.09 pm on 31 August 2006. At about 4.24 pm that day, the judge received a further note (the second note) from the jury which contained the following questions:
1. Can we have a definition of ordinary person?
ie is ordinary – normal, according to established societal practices.
(in regard to provocation (b)).
2.If we have a majority (for murder) but it is not unanimous, does it mean that we automatically default to manslaughter?
3.Can you explain/clarify a hung jury?
PS Do we need a unanimous decision to arrive at manslaughter?
After discussing this note with counsel, the judge gave some further directions to the jury in which she reminded them of what she had earlier said in her summing up on the topic of provocation. She also explained to them that their verdict had to be unanimous for a guilty verdict of murder, but that all other verdicts could be returned with a majority of 10. The judge also explained to the jury the circumstances which would result in a hung jury.
At about 6 pm, the judge received a further note (the third note) from the jury in the following terms:
Regarding process:
If it is 10 in favour of murder and 2 against, what is the process that follows?
What is acquittal? Is 10:2 acquittal of murder?
The judge did not read the contents of this note into the transcript verbatim, nor did she make it available to counsel to peruse. While not indicating why that was so, the judge said to the jury that it appeared to her that they were deadlocked at that point, although that was not to say that they would not reach a verdict. She went on to say that she would speak more to them about that matter in due course, but indicated that, as they had been deliberating for some time, she would be prepared to release them overnight. She would then discuss the possibilities in terms of numbers with them the following morning. The jury briefly retired to consider what they wanted to do after which the jury foreperson indicated the jury needed a break and acceded to the judges offer to be released until the following day.
When the trial resumed the following morning, that is, 1 September 2006, the judge indicated that she wanted to say a little more about the third note in which the jury had asked, amongst other things, “What is an acquittal?”. The judge then explained that an acquittal was 10 or more individual jurors determining the accused was not guilty of the charge. After further discussing that aspect of the matter, the judge gave a Black[6] direction and explained that she had the power to discharge them from giving a verdict but that she would only do so if she was satisfied that there was no likelihood of genuine agreement being reached after further deliberation.
[6] Black v R (1993) 279 CLR 44

At 11.28 am the judge indicated to counsel that she had received a further question from the jury regarding the ordinary man in provocation. This note (the fourth note) contained the following questions:
Please use a different example than those provided in past answers!
Provocation:
When considering the Test ‘ordinary man’
What determines an ‘ordinary man’? If considering the following:
1. person who runs into a burning car to rescue a trapped person.
2. a police officer who molests a young girl.
Or would the above issues require that; with regard to the general population, more than 50% of the people would be able [to] be seen as capable of perform[ing] the above acts.
The judge did not read the contents of this note into the transcript, nor did she make it available to counsel. She did, however, say that she had received a question regarding the ordinary man in provocation. After discussing with counsel what she proposed to say on that topic, the judge gave the following direction:
I have your note. I will say a little more about the ‘ordinary man’ who, of course, figures in the second limb of provocation. The ordinary man is a hypothetical figure. He is of the same age of (sic) the [appellant]. He is of no particular cultural background. He is not affected by drugs or liquor. He has had an unremarkable life. He is not particularly excitable or feisty. He does not have any extraordinary attributes or sensitivities. He is of ordinary temperament with ordinary powers of self-control, such as everyone is entitled to expect that his fellow citizens will exercise.
You are concerned with the reactions of this ‘ordinary man’ to the provocation offered by the deceased, if you make that finding. It is his powers of self-control you are concerned with – that is, the ordinary man’s powers of self-control – not his entire character. The question is whether he might have responded in the same way and to the same extent as the [appellant]. Not whether the ordinary man would have, but whether he might have. This is not a question of percentages. I cannot give you any examples to illustrate the qualities of the ordinary man.
On the hearing of the appeal, counsel for the appellant argued that the judge had erred in failing to read the third and fourth notes on to the transcript or to otherwise disclose them to defence counsel. In making this submission, counsel relied on the case of Green[7]. The appellant in Green was convicted of receiving stolen property. During the course of the jury’s deliberations, a note was sent from the jury to the Recorder. The Recorder received the note in his private room and sent an answer to the jury but did not read out either the question or the answer in open court. The Recorder could not subsequently recall the contents of the question, although he recalled that it was a simple question relating to a small matter which he had dealt with in his summing up. The Court of Criminal Appeal held that this error compelled the conviction to be quashed. Goddard LCJ said (at 34):
This Court and the Divisional Court has said on more than one occasion that any communication between a jury and the presiding Judge must be read out in Court, so that both parties, the prosecution and the defence, may know what the jury are asking, and what is the answer. Very likely, in this case, it was purely immaterial, and if the Recorder had been able to tell us what the question was, we might have been able to consider it, although nothing that I say now should be taken in any way to authorise a departure from the well recognised rule that these matters must be done openly in Court.
[7] (1949) 34 Cr App R 33
It does not follow, however, that every communication between judge and jury has to be disclosed. In R v Ion[8], Humphreys J summarised the principle in the following way (at 154):
It is not every note sent to the presiding Judge by the jury from their room while they are considering their verdict which must be read out in open court. Members of the jury might like to have a drink of water, and send in a note to say: ‘May we have a glass of water?’ It would not be necessary to bring the prisoner from the cells and counsel from his room to hear the Judge say that they may have a glass of water. Similarly, there are other communications which quite obviously cannot affect the merits of the case in which it is left to the discretion of the presiding Judge whether the prisoner and his counsel (if he has one) ought to be brought into court so that they may hear what the jury have asked the Judge. Wherever, however, there is a matter in dispute which may possibly result in the prisoner being either convicted or acquitted and that appears in a written note sent in by the jury, it is obviously right and proper that the prisoner himself and his counsel should know what the jury have said to the Judge. It must not be assumed that this Court says that in every case counsel for the defence has a right to address the Judge on the jury’s communication, because that might open the door to persistent counsel, when addressing the Judge, in effect saying to the jury all that he had already said to them when he was addressing them. That, again, must be left to the discretion of the Judge.
[8] (1950) 34 Cr App R 152
Green and Ion were both referred to in R v Crowe[9]. D M Campbell (Macrossan J concurring) said (at 479):
In Green (1949) 34 Cr App R 33 Goddard LCJ reiterated that any communication between a jury and the presiding judge must be read out in court so that both protagonists, the prosecution and the defence, may know what the jury are asking and what is the answer. The rule applies unless the communication is on a matter which does not touch upon the case in any relevant way: Ion (1950) 34 Cr App R 152. But it has been recognised that not every failure to comply with the rule should result in a conviction being set aside; in a number of cases, of which Furlong (1950) 34 Cr App R 79; Barnowski [1969] SASR 387; Zamparutti [1973] 2 NSWLR 151 and Lamb (1974) 59 Cr App R 196 are instances, the general proviso has been applied empowering an appellate court to dismiss an appeal on the ground that no miscarriage of justice has actually occurred. The ordinary test applicable in other cases which is whether, when the transcript is examined it is evident that no reasonable jury, after a proper summing-up, could have failed to convict on the evidence properly admissible, has been held to apply in these cases as well: Townsend [1982] 1 All ER 509; Rose (1982) 75 Cr App R 322 at 330.
[9] (1985) 16 A Crim R 478
It is clear from these authorities that the basic rule requires the contents of a communication between judge and jury to be disclosed to the parties or read into the transcript in open court, but there are some exceptions to it. In R v Yuill[10], the Court of Criminal Appeal of New South Wales said:
There are two exceptions to that basic rule. The first is where the communication concerns some subject which is unconnected with the issues which the jury have to determine – for example, a request by a juror to pass on a message to a relative about staying back late. … The second is where the communication concerns some subject about which it was inappropriate for the jury to have communicated with the judge – the most obvious example being a disclosure of the voting figures when quite properly informing the judge of the existence of a disagreement ...
[10] (1994) 34 NSWLR 179 at 190
In this case, the judge informed the parties of her interpretation of the third note. All that she held back from them was that aspect of the note which appeared to indicate the voting figures within the jury room. The judge undoubtedly considered that fell within the second exception to the basic rule as referred to in Yuill and I do not consider that she was in error in forming that view.
The questions asked in the fourth note might be considered somewhat unusual and that may be the reason why the judge decided to withhold the details from the parties. The appellant, however, complained that the contents of this note revealed a disturbing level of misunderstanding by the jury as to the concept of the ordinary man in provocation. It was suggested that improper reasoning may have intruded into the jury’s deliberations as a result of which the appellant had been deprived of a fair trial.
Although the judge appears to have deviated from the basic rule in not reading this note into the transcript, I do not think that has given rise to a miscarriage of justice which would require this court to interfere. It is obvious from the contents of the note that the jury was continuing to have difficulty in understanding the concept of the ordinary man as it related to the topic of provocation, and the judge correctly informed the parties that appeared to be the case. She discussed with counsel what she should say by way of a further direction on that topic and the answers she then gave were appropriate to the questions asked. In my opinion, it was unlikely that the questions would have been answered any differently had the exact contents of the note been disclosed to counsel before the further direction was given. I would refuse permission to appeal with respect to this ground.
Proposed ground 11 - the evidence of Dr Cala:
The appellant complains that the learned trial judge erred in her directions to the jury in failing to correct the prosecutor’s misuse in his final address of the evidence of Dr Cala. Dr Cala carried out the post-mortem examination of the deceased on 18 April 2006. He gave evidence as to the various injuries he had observed and produced a body chart (Exhibit P10) depicting the position of those wounds. This included ten stab wounds to Ms Koch’s chest in close proximity to each other.
The prosecutor led detailed evidence from Dr Cala as to the measurements and possible trajectory of each of those wounds. In his address, the prosecutor referred to the evidence from the crime scene to suggest that Ms Koch was lying on her back on the bed when she received the fatal wounds. He later reminded the jury of Dr Cala’s evidence and put to them that, on the prosecution case, the trajectory of all of the wounds was very similar and that eight were almost identical. He described them as roughly vertical and suggested that Ms Koch had not been struggling or moving when she had received those wounds and was therefore not able to evade her attacker. The prosecutor also referred to the grouped nature of the wounds and suggested to the jury that these were matters from which they could infer the intention of the appellant to kill or cause grievous bodily harm.
Defence counsel in his address was critical of the approach taken by the prosecutor. He suggested to the jury that the evidence of Dr Cala was the exact opposite of what had been put to them by the prosecutor. He told them that the prosecutor’s theory as to the position of Ms Koch when the wounds had been inflicted had never been put to Dr Cala. Counsel also reminded the jury that the targeted or grouped nature of the wounds was equally consistent with having occurred in an incident which was over in seconds and in that way that evidence supported the defence case.
In her summing up, the judge dealt with the evidence of Dr Cala in quite neutral terms. She referred to Dr Cala’s evidence that Ms Koch had died of multiple stab wounds and said that the jury would probably have no difficulty with the first element, that is that the [appellant] caused the death of Ms Koch. She later said:
Dr Cala was the pathologist who examined the body. The deceased was found to weigh 45 kg and she was 161 cm tall. He found a number of minor injuries to the body by way of bruises and abrasions. Then there were the ten stab wounds to the deceased’s chest. As I mentioned, the cause of death was multiple stab wounds. Dr Cala said that perhaps seven of those would probably have been fatal of themselves. Those were the ones which penetrated vital organs, including the heart. He said all would have caused bleeding, internally at least. He could not say how quickly death would have followed.
Later, when summarising the addresses of counsel, the judge referred to what the prosecutor had said in his address as follows:
Mr Pearce suggested to you that the truth of what happened in the unit that evening is demonstrated by the evidence of the scene and of the condition of the deceased’s body, with the ten wounds all in close proximity and showing a similar trajectory and the lack of defence wounds, and, on the other side of the coin, the condition of the [appellant]’s body. Mr Pearce suggested that the state of the unit, the condition of the body and, indeed, the things said in hospital by the [appellant] all point to a fight, a loss of temper, and deliberate and intentional killing.
The judge then went on to refer to the submissions of counsel for the defence who had reminded the jury of the presumption of innocence and had pointed to the seriousness of the appellant’s condition when found by the ambulance officers and in hospital. Although the judge did not refer to the specific matters arising out of Dr Cala’s evidence as put to the jury by defence counsel in his address, she did remind the jury of the thrust of the defence case arising out of that evidence. She referred to counsel’s suggestion that the appellant’s evidence, coupled with the evidence at the scene, suggested a sudden, erratic and frenzied attack upon the appellant by Ms Koch. The judge also referred to defence counsel’s suggestion that even though the appellant could not remember wounds eight through to ten, the event might have happened so quickly that it could be said that all of the wounds were inflicted in self-defence.
In my view, no criticism can be made of the prosecutor’s failure to put to Dr Cala his “theory” as to the relevant positions of Ms Koch and the appellant at the time of the infliction of the wounds. That was not a matter upon which Dr Cala could express an opinion. All Dr Cala could do was describe his observations of the nature of those wounds. The prosecutor was, however, entitled to rely upon Dr Cala’s evidence, as well as the evidence collected at the crime scene, to suggest that the inference could be drawn that Ms Koch was stationary, or was otherwise incapacitated or restrained, at the time that she was stabbed by the appellant. This was an important aspect of the case against the appellant and was clearly relevant to the issue of intent, as well as to the defence of self-defence and provocation. All of the submissions put to the jury by the prosecutor on this aspect of the evidence were founded on evidence given at the trial. Whether the jury were prepared to draw the inferences suggested by the prosecutor was simply a matter for them, and that was the way the evidence was left to them. I would refuse permission to appeal on this ground.
Proposed ground 12 – miscarriage of justice:
This proposed ground essentially relies upon the combined effect of the matters set out in the earlier grounds. As in my opinion, no arguable grounds have been established, there has been no miscarriage of justice. I would therefore refuse permission on those grounds upon which permission is sought to appeal and I would dismiss the appeal.
Appeal against sentence:
The appellant complains that the non-parole period of 16 years imprisonment was manifestly excessive. In the course of sentencing submissions counsel sought to rely on material from the Australian Bureau of Statistics which was entitled Calculating Experimental Life Tables for Use in Population estimates and projections of Aboriginal and Torres Strait Islander Australians, 1991 to 2001. The judge declined to receive those tables and, in my opinion, she was entitled to do so as they appear to be of limited assistance. Nevertheless, with the consent of the respondent, those tables were received by this court on the hearing of the appeal. That material indicated that the life expectancy for aboriginal males within South Australia is 61.35 years, as opposed to the life expectancy for males in the general population being 78.1 years.
Counsel for the appellant sought to rely on those figures to argue that the non-parole period fixed by the judge was manifestly excessive. As the appellant was only 42 at the time of sentence, counsel argued that the sentence imposed was the equivalent of one imposed on a non-aboriginal male aged 60 years. In addition, although the judge had indicated that the sentence would leave the appellant with some hope of re-establishing his life, by the time he was eligible for release he would be 58, whereas the projected life expectancy for aboriginal males in the tables was 61.35 years.
The relevance of age in sentencing was discussed in Inge v The Queen[11]. In that case, the High Court held that in determining an appropriate non-parole period in the case of a relatively young offender accused of murder, no principle required the period to bear a proportionate relationship with the likely term of the prisoner’s natural life. Kirby J said (at 317):
… [T]he rehabilitative purposes of parole [R v Shrestha (1991) 173 CLR 48 at 69] may, depending on the circumstances of the case, make it appropriate in fixing a non-parole period to take into account, in a way favourable to the prisoner, his or her age. Thus, in the case of a prisoner of advanced years, it may be appropriate to fix a non-parole period shorter than would otherwise be the case in order to hold out the hope of release, to encourage good conduct in prison and to overcome the contemplation that the prisoner will die in custody. In the case of a relatively young prisoner, regard may be had to the immaturity of the offender, the prospect of reform and the common experience of courts that, with greater age, there is often a decline in at least some types of criminal offending. Because non-parole periods may, by law, be fixed in the case of prisoners sentenced to a mandatory life imprisonment, it can be taken that Parliament meant considerations such as the foregoing to be taken into account by a court which decides that it is appropriate to fix a non-parole period in a particular case. No formula, derived from actuarial tables or judicial estimation of life expectancy could defeat the operation of these considerations. Once a non-parole period is fixed, its duration must be open to the influence of all considerations. Age is one such consideration in South Australia both by statute [Criminal Law (Sentencing) Act 1988 (SA), s 10(1)] and by the common law. Age is not necessarily a consideration which ‘counts against’ a prisoner, including a life prisoner.
And at 318:
Thus, in the scheme of the South Australian legislation, life imprisonment does not necessarily mean (and in most cases will not involve) imprisonment for the term of the prisoner's natural life. Accordingly, a foundation for the calculation of the non-parole period by reference to that consideration is knocked away. Given the wide variety of offences and offenders encompassed by the crime of murder, it is inevitable that this should be so. In the case of a determinate sentence, it is entirely appropriate to fix the non-parole period with reference to the head sentence. The latter should already contain within it a reflection of the considerations relevant both to the circumstances of the offence and of the offender. But no such considerations enter into a sentence of life imprisonment. It is simply required by the Act of Parliament. Only in an exceptional case will a life sentence result, in fact, in the prisoner's spending the rest of his or her life in prison. To calculate the non-parole period by reference to the supposed life expectancy of the prisoner is therefore to calculate it by reference to a factor that is irrelevant or misleading. (emphasis mine)
[11] (1999) 199 CLR 295

Accordingly, in this case, the judge would have fallen into error if she had taken the projection of life expectancy of the appellant into account in the fixing of the non-parole period. In addition, I note that the actuarial tables necessarily address general population issues and not the circumstances of a particular offender. The judge did, however, appropriately take into account that the appellant was an aboriginal man aged 42 years with a troubled adolescence and that as an adult he had suffered mental health problems and substance addiction. She also referred to the close proximity and similar trajectory of at least eight of the wounds to conclude that the appellant had inflicted them in a rage. She accepted, however, that the three small lacerations to the appellant’s forearm may have been caused by Ms Koch. The judge indicated that she proposed to sentence the appellant on the basis that Ms Koch had attacked him with a knife, that he became enraged, had removed the knife from her and killed her by stabbing her repeatedly. The judge considered that although the appellant had been obliged to disarm her, none of the stab wounds to Ms Koch’s body were inflicted in defence of himself. The judge accepted that the appellant quickly regretted what he had done to the point of being overcome with shock and that he was sorry for what had occurred.
The appellant had a long antecedent report which included a number of prior convictions for offences of violence, which thereby reduced the opportunity for leniency. In R v Stewart[12], King CJ considered the factors to be taken into account when he fixed a non-parole period of 16 years for a prisoner convicted of murder (which would appear to be in circumstances not dissimilar to the present case). He said (at 478-479):
I must say, however, that violent and terrible as the crime was, it does not fall into the category of the worst types of murder calling for the longest non-parole periods. Examples of categories of murder calling for longer non-parole periods than I will fix in the present case, would be multiple murders, terrorist murders, murders in the course of organised crime and certain other types of premeditated, cold-blooded murder, murders committed in the course of armed robbery and certain types of sexual crime, and murder of prison officials, police officers and other officials connected with law enforcement and the administration of justice.
That, of course, is not intended to be an exhaustive list of categories of murders which would be treated more seriously than the present one. Nor is the present crime in the least serious category. Examples of types of crimes in which shorter periods of non-parole should be considered are those committed by first offenders, and particularly by first offenders in compassionate circumstances, unpremeditated killings occurring in a sudden quarrel or emotional disturbance, and crimes in which the proved intent was not an intent to kill, but an intent to do grievous bodily harm.
The present crime, in my view, is neither the most serious nor the least serious of murders from the point of view of determining the proportion of the sentence which must be spent in prison.
[12] (1984) 35 SASR 477
In my view, given the circumstances of this crime, and taking into account all of the matters personal to the appellant, the sentence imposed was well within the discretion of the sentencing judge. I would refuse permission to appeal against sentence.
ANDERSON J: I agree with the reasons of Nyland J for refusing permission to appeal and in dismissing the appeal relating to the conviction. I also agree with Her Honour in refusing permission to appeal against sentence for the reasons she states.
LAYTON J: For the reasons given by Nyland J, I would dismiss the appeal and refuse the application for permission to appeal against conviction on the other grounds. I would also refuse the application for permission to appeal against sentence for the reasons given by Nyland J.