R v McCullagh (No 3)

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 105 of 2006

THE QUEEN
	v.
FRANCIS JOHN McCULLAGH (No 3)

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JUDGES:	CHERNOV and VINCENT JJA and WHELAN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 September 2007
DATE OF JUDGMENT:	13 December 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 293

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CRIMINAL LAW – Provocation – Proportionality – Whether risk that jury considered proportionality to be additional element of provocation – Whether impugned charge relevantly different from R v McKeown [2006] VSCA 74, R v Barrett (2007) 16 VR 240 and R v Margach [2007] VSCA 110 – Objective and subjective elements of provocation – Failure to charge in terms as to meaning of ‘ordinary person’ – Whether omission fatal to fair trial – Intoxication – Relevance of intoxication – Relevance of offender’s state of intoxication to assessment of gravity of provocation – Manslaughter – Whether charge as to intention to cause serious injury blurred distinction between murder and manslaughter by unlawful and dangerous act.

EVIDENCE – Admission pursuant to Evidence Act 1958 of transcript of evidence from previous trial – Witness not in court – Failure to give reasons for ruling – Whether admission of transcript evidence fatal to fair trial – Evidence Act 1958, ss 55AB, 55AC.

CRIMINAL LAW – Sentencing – Totality – Whether sentence manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J D McArdle QC with Mr J M Harkess	Ms A Cannon, Solicitor for Public Prosecutions
For the Applicant	Mr M J Croucher	Theo Magazis & Associates

CHERNOV JA:

On 5 December 2000 the applicant, Francis John McCullagh, who is now aged 37 years, was found guilty in the Supreme Court on 5 December 2000 of one count of murder of Melanie Ann Harden. On 15 December 2000, he was sentenced to 22 years’ imprisonment with a non-parole period of 19 years. This conviction was quashed and a new trial ordered.[1] On 31 January 2003 he was again convicted of murder and was sentenced to 20 years’ imprisonment with a non-parole period of 16 years. This conviction was also overturned and a second re-trial was ordered.[2] The second re-trial commenced on 14 March 2006 and on 23 March 2006 the applicant was again convicted of murder. He had ten prior convictions from five court appearances between 14 May 1987 and 16 July 1997, including convictions for causing serious injury intentionally and false imprisonment. On 28 March 2006 the applicant was sentenced to 20 years’ imprisonment with a non-parole period of 16 years. He now seeks leave to appeal against conviction and sentence.
[1]See R v McCullagh [2002] VSCA 163.
[2]See R v McCullagh (No 2) [2005] VSCA 109.

Circumstances of offending

Before dealing with the grounds on which the applications are made, it is necessary to summarise the circumstances of the offending about which there was no great controversy before us. For that purpose it is sufficient to refer to the essential aspects of the circumstances that are set out in the reasons for judgment of Winneke P in the first appeal. At the time of her death, the deceased was a young woman of 21 years. She lived in a caravan park in Hastings. For approximately six months before her death she had been in a relationship with the applicant. It would seem that from Thursday 9 September 1999 until the time of her death on the afternoon of Saturday 11 September, the deceased, the applicant, Phillip Buttigieg (a friend of the applicant) and a young woman named Melissa Dunkin (a friend of the deceased) were in each other’s company for substantial periods of time at various places on the Mornington Peninsula and in the city, in the course of which they engaged in alcohol and drug ingestion and marijuana smoking at intensities which varied according to the evidence of witnesses. Upon analysis following her death, the deceased’s blood was found to contain high levels of methyl-amphetamine and ecstasy, although there was no evidence, upon urine testing, of marijuana.

The events leading to the death of the deceased appear to have commenced on the evening of 9 September 1999. The evidence was that, in the early evening, the applicant, together with the deceased and Buttigieg, arrived at Dunkin’s house at Tyabb. There was a difference between Buttigieg and Dunkin as to what occurred thereafter. Buttigieg said that they smoked marijuana for a considerable time before later driving to a nightclub in Melbourne. Dunkin, on the other hand, stated that no substances were taken at her house before they left to travel, via the Somerville Hotel, to a city nightclub at about 1.00am. She said, however, that she ingested some ecstasy during the drive. The group remained in the city for some hours. According to Buttigieg it was late in the morning of Friday 10 September that the applicant drove him back to his house in Cranbourne. At 4.30pm on the afternoon of that Friday the applicant returned to Buttigieg’s house to pick him up before driving, at approximately 6.30pm, to the caravan park at Hastings where the deceased lived. There they met the deceased and Dunkin and, according to Buttigieg, they again smoked marijuana. As I have mentioned, Dunkin gave a different version saying that no substances were taken at the caravan park. At some time early that evening Dunkin wanted to telephone a friend. Again there was a difference between the evidence of Buttigieg and Dunkin as to what occurred in that respect, Buttigieg saying that Dunkin had asked the applicant for the keys to his car so that she could use his mobile telephone whereas Dunkin said that she had obtained change from the deceased so that she could use the public telephone. In any event it would seem that shortly after making the call, Dunkin left the caravan park to meet a friend in Frankston. According to Buttigieg, the others remained at the caravan park until the early hours of Saturday morning in the course of which amphetamines were consumed by himself, the applicant and the deceased.

Later in the morning of Saturday 11 September the applicant went to his car to get his tooth brush and found that a black bag that he kept there had disappeared. The evidence was that he became very upset because the bag contained a gold cross of significant sentimental value which had been given to him by his grandmother. It seems that the applicant thereafter inquired of occupants of the caravan park whether anybody had seen his bag. He then drove Buttigieg back to his house in Cranbourne. At about 4.30pm that afternoon the two returned to the caravan park to pick up the deceased in order to attend an engagement party for the applicant’s cousin. By that time Dunkin had returned to the caravan park and was with the deceased. As the applicant and Buttigieg entered the caravan park the applicant had an altercation with its proprietor. He was still angry and upset about the loss of his gold cross and challenged a number of people, including Dunkin, suggesting that his bag and contents had been stolen the night before. He also said, according to Dunkin, that he would ‘kill whoever took his bag’.

There were various people called to give evidence who had been present at the caravan park on the afternoon of 11 September before the applicant left the park with the deceased. The thrust of that evidence was that the applicant was in an angry state over the loss of his bag and had threatened various people at the caravan park. The couple who operated the park said that at about 4.15pm that day they heard loud swearing from outside the gate of the caravan park. The applicant, who was a passenger in the car being driven by Buttigieg, wanted the boom gate lifted so that they could gain entry but they were told to park their car outside. The applicant, according to the proprietor’s wife, was ‘very angry’, accusing people in the caravan park of having stolen his bag.

At approximately 5.00pm the applicant, the deceased and Buttigieg left the caravan park in the applicant’s car, dropping Buttigieg off at his home at 5.30pm. According to Buttigieg, he next saw the applicant when the latter woke him late on Saturday night saying ‘I think I’ve hurt Melanie’. The applicant then took various items from Buttigieg’s premises, including a sheet, a beach towel and the jacket of one of Buttigieg’s sons.

Nothing further was known about the fate of the deceased until 15 September when the applicant attended the Homicide Squad’s office with a solicitor. He was there interviewed between 5.00pm and 6.30pm by officers of the Homicide Squad. It was upon that record of interview that the applicant partly relied for his defence at trial. He gave no evidence.

In the course of the record of interview, the applicant told police that he had been upset on the morning of Saturday 11 September when he had found that his bag containing his gold cross, which had been in the back of his car, had been stolen. Nevertheless, he said that he was not prepared to make a big issue of the matter and he ‘went about [his] day’. Later in the afternoon, he and Buttigieg collected the deceased. They dropped Buttigieg off at his premises and drove on towards Chelsea to attend the engagement party. According to the applicant, in the course of the drive, the deceased kept on bringing up the matter of the ‘stolen bag’. He said that he told her that he did not want to know about it because he wanted to have a good time. The deceased then said something that suggested to the applicant that she had taken the bag, which prompted him to say to her ‘So you – took it. You took it with them?’. The deceased, he said, replied ‘Oh, fuck you. Fuck you and fuck your grandmother’. The applicant said he started to cry and that the deceased had hit him in the car as he was driving. He said that he had gone to hit her in return and thought that he had ‘elbowed her’ but was not sure. Because they started to fight in the car, he pulled it over to the side of the road where, so he said, a ‘free for all’ developed. She was hitting him and he was hitting her ‘pretty fucking hard’. Then, he said:-

… I started choking her. I couldn’t – I didn’t didn’t know – it happened so quick. She just stopped breathing. I didn’t – I didn’t know – I didn’t mean to hurt her. I didn’t want to fucking hit her and everything. She, just – it was just – I didn’t know she had anything to do with thieving me bag. I didn’t know any of this stuff. And then – I haven’t been to bed for days with me pain. It’s been there since she – I smoked marijuana. I didn‘t know what I was doing, anyhow. Like, I was – but I knew I had intend – to – I didn’t intend to fight with her and hurt her. Because it’s - felt the same, like, we were fighting and she stopped breathing.

The applicant said that after he realised that the deceased had died he did not know what to do. He said that he drove to Buttigieg’s house (although he refused to name Buttigieg and said he was not home) where he had obtained rope, a sheet and other items and that he tied and wrapped the deceased in the sheet. He then drove past the Lang Lang golf course to a deserted area where he deposited the body and covered it with tree branches. The applicant told police that he had not been to sleep since the preceding Wednesday night and that he and the deceased had ingested a ‘cocktail’ of substances including alcohol, speed, ecstasy and marijuana. He said that they had smoked marijuana ‘continuously’. The applicant admitted that the drugs had affected his decision making power and caused him to become lethargic but otherwise, he said, the cocktail of drugs had had no effect upon him and that, apart from being ‘upset about [the] bag being stolen’, he was ‘fine’. He said, however, that ‘we were taking speed and that all day ’cos we hadn’t been to bed for days’. After he described what he had done to the deceased during their fight – ‘All I remember is choking her. And she stopped fuckin’ breathing’ – he ‘asked her to wake up’. He said that he didn’t know what he was ‘doing or anything, cause we was fucking drug‑fucked out of our brains’.

In the course of the police interview, the applicant said that the deceased was a small woman whom he had been able to overpower. He could give no explanation as to why he did not leave the car whilst she was assaulting him and said that he had not sought any medical attention for her because he had ‘panicked’. It was, he said, in that state of panic that he had driven to his friend’s place to obtain the sheet and the other equipment for the purposes of concealing and disposing of the body. ‘I don’t know why I even tied her up’, he said, ‘… she was dead. I should have taken her to the police station or hospital, but I didn’t know what I was doing, I was so fuckin’ afraid’.

The applicant was able to describe, with a degree of accuracy, and with the help of a Melway’s map, where the body was located. He then accompanied police to an area near Scout Road, Nyora where the body was recovered. The body of the deceased was wrapped in a ‘Sesame Street’ bed sheet. There were bloodstained grey tracksuit pants around the deceased’s head with a rope securing them. Rope was also wrapped around her legs, her mid-section and around her ankles and neck. A blue jacket was wrapped around her neck. A post-mortem conducted on the following day revealed that the deceased’s face was swollen with swelling around both eyes. There were petechial haemorrhages in both eyes, a split over the right eyebrow and splits on the skin on the right side of the face under the eyes. Her upper lip was swollen on the left and the lower lip swollen on the inside. Bruising on one of the arms was indicative of ‘defence type’ injuries and an internal examination of the neck found bruising under the skin. The bleeding under the neck was accompanied by bruising within the ‘strap muscles’ and a break in the hyoid bone in the larynx. The opinion of the pathologist was that manual strangulation had caused the death and that the force applied was at the more severe end. The applicant himself was examined by a doctor. There were signs of injury but they were described as trivial.

Application for leave to appeal against conviction

I shall deal first with the application for leave to appeal against conviction. There were a number of grounds on which the applicant relied in that regard and I shall examine them generally in the order in which they were argued.

Ground 3(a): Error in directing on proportionality

It was first submitted for the applicant that her Honour’s direction to the jury on provocation produced the real risk that they would have considered that provocation would only operate to reduce the offence to manslaughter if there was present, as an additional element of provocation, proportionality between the deceased’s relevant conduct and the killing. It was submitted, correctly, I think, that proportionality is not an additional element of provocation. Hence, it was said, in the circumstances there was a misdirection on that issue such as to amount to a miscarriage of justice.

It is convenient to mention at this point that at the outset of the trial the judge told counsel that provocation would be a matter that would be left to the jury and that, unsurprisingly in the circumstances, the Crown and the applicant’s counsel addressed on it. In the course of the charge her Honour gave the jury a five page document that set out the description of the offences which the jury had to consider, and their respective elements. The elements of provocation were set out in the following terms.

LAWFUL JUSTIFICATION OR EXCUSE
[If the jury were satisfied beyond reasonable doubt that the applicant caused the death by a conscious and voluntary act with the requisite intent they then needed] to examine whether [the Crown had] proved beyond reasonable doubt that the accused was acting without lawful justification or excuse. That refers to either self defence or provocation. There is no issue of self defence raised here and accordingly you would need to examine the issue of provocation.
PROVOCATION
There are two elements in the concept of provocation.
1.The first is that the acts or words of the deceased which are said to constitute provocation caused the accused to lose his self control, and the fatal acts were done during that period of loss of self control.
2.The second aspect is that law will only concede the existence of provocation if there is some kind of proportion between the provocation and the killing.[3] The provocation must be of a kind that might in the same circumstances cause an ordinary man to react in the same way as the accused man reacted.
[3]During the charge, following discussion with counsel, the word ‘killing’ was substituted for the original term ‘murderous act’.
There are two elements within that second aspect of provocation;

FIRSTLY
You assess the gravity of the provocation upon the accused person, and when doing that you are entitled to look at his characteristics, his past history with the deceased, the nature of their relationship, his personal attributes and then assess what level of impact the words and actions of the deceased had upon him. From that you are able to determine the gravity of the behaviour to him.
SECONDLY

Having assessed that degree of gravity, you then apply an objective test of whether an ordinary person provoked to the degree that you find the accused has been provoked might have lost self control and acted in a manner which would encompass the accused’s actions.
The onus of proof is on the Crown to negative either of these elements, therefore the Crown would have to prove beyond reasonable doubt, either
1.The accused was not provoked, or
2.That an ordinary person provoked to the degree that you find the accused might have been provoked would not have lost self control and acted in a manner which would encompass the accused’s actions.

I will come back to the dispute concerning the terms of the handout. In her oral charge on provocation her Honour paraphrased the first element of provocation as that is set out in the handout. She then turned to the terms of paragraph numbered 2 under the heading PROVOCATION and said the following:

The second aspect is that the law will only concede the existence of provocation if there is some kind of proportion between the provocation and the killing. The provocation must be of a kind that might in the same circumstances cause an ordinary man to react in the same way as the accused man reacted.
…
It may help you if you understand that the law in respect of provocation was introduced many, many years ago in order to give some flexibility to what was otherwise a very rigid law of murder. The law took the view that if a person acts in the heat of passion or as a result of a sudden loss of self-control brought about by others then the full legal consequences attaching to murder should not follow in all their severity, [so] it’s an amelioration of the law of murder. But the law also took the view that there must be some reasonable proportionality between the provocation that occurred and the resultant killing. It can’t be that if someone sneezed on you and you did not like being sneezed on you are entitled to kill them. It must be some proportionality.

It was the applicant’s case that this direction, containing as it did the reference to proportionality, is plainly erroneous as has been made clear by this Court in R v McKeown (‘McKeown’),[4] R v Barrett (‘Barrett’)[5] and R v Margach (‘Margach’).[6] In each case, it was said, the Court recognised that such a reference in the charge to proportionality brings with it a material risk of miscarriage of justice in that it might lead the jury to consider wrongly that proportionality was an additional precondition to the finding of provocation.
[4][2006] VSCA 74, [3]-[5], [6], [63].
[5](2007) 16 VR 240, 265-8.
[6][2007] VSCA 110, [11], [15]-[22].

The handout was, in effect, settled by her Honour and counsel before it was given to the jury. It was claimed for the applicant that counsel at trial took an exception to that part of the handout that made reference to proportionality. The transcript of the relevant discussions, however, does not support that contention. It shows that counsel noted the reference in the draft handout to proportionality, but his concern was with the use in the document of the term ‘murderous act’ (that was later changed by her Honour to ‘killing’ as has been noted); there was no objection taken to the fact that reference was made in the document to the concept of proportionality. I mention for completeness that the mere fact that no such objection was taken at the time to the reference to proportionality is not, of course, determinative of whether there was error in that regard.

It is convenient to deal first with the authorities to which I have referred and on which the applicant relied in support of the claim that the verdict is flawed because of her Honour’s impermissible reference to proportionality. In R v McKeown the direction by the trial judge on provocation was in the following terms:

As I said, there are two elements or two parts in the concept of provocation. The first is that the acts of the deceased which are said to constitute that provocation caused the accused man to lose his self-control and that the acts causing the killing were done during a period of that loss of self-control. Perhaps, a phrase that is often used is ‘a crime in the heat of passion’. The second aspect of this is that the law will only concede the existence of provocation if there is some kind of proportion between the provocation and the murderous act. The provocation must be of a kind that might, in the same circumstances, cause an ordinary person to react in the same way as the accused reacted in this case.[7]

Callaway JA, with whom Buchanan and Vincent JJA agreed, said this in respect of the impugned aspect of the charge:
There are two difficulties in the last two sentences of that passage, in which the objective element is restated. One difficulty is that the jury may not have understood the first sentence as being solely introductory to the second. They may well have thought that proportionality was an essential part of the objective element of provocation. The expression ‘the law will only concede’ is a strong expression, to which they are likely to have paid particular attention. The other difficulty is that, particularly coupled with a reference to proportionality, the jury may have thought that ‘react in the same way’, in the next sentence, meant ‘react in precisely the same way’. That, too, would be a misdirection.[8]

Thus, the Court set aside the verdict of guilty. A like conclusion was reached by this Court in Barrett[9] in respect of a direction on provocation that appeared to highlight proportionality as an element of it in terms similar to those used in McKeown.[10]

[7][2006] VSCA 74, [3].

[8]Ibid [4] (citations omitted).

[9](2007) 16 VR 240.

[10]I note that in Barrett, Eames JA said that, given the decision in McKeown, it would be appropriate to modify any future directions given on provocation so as to remove from the Charge Book the sentence: ‘The second element [of provocation] is that the law will only concede the existence of provocation if there is some kind of proportion between the provocation and the murderous act or acts’: Ibid 267.

A similar approach was adopted in Margach. In that case the impugned charge was in the following terms:

There are two elements in the concept of provocation. The first is that the acts or words of [the] deceased, which are said to constitute provocation, caused the accused to lose his self-control and that the acts causing the killing were done during that period of loss of self-control. I will repeat that. The first is that the acts or words of [the] deceased, which are said to constitute provocation, caused the accused to lose his self-control and that the acts causing the killing were done during that period of loss of self-control.
The second element is that the law will only concede the existence of provocation if there is some kind of proportion between the provocation and the murderous act. The provocation must be of a kind that might, in the same circumstances, cause an ordinary man to react in the same way as the accused man reacted.
…
… [H]aving assessed the gravity of the provocation it is then necessary for you to determine whether provocation with that degree of gravity as you have found the accused felt, if you find indeed that he was provoked – as I said, that is entirely a matter for you, but with that degree of gravity as you found the accused felt, might cause an ordinary person to lose self control and act in the manner which the accused did.
…
… having assessed the degree of gravity, you then apply the objective test of whether an ordinary person, which means just an ordinary member of our community – whether an ordinary person provoked to the degree that you find the accused has been provoked might have lost self control and acted in a manner which would encompass the accused’s actions.[11]

[11][2007] VSCA 110, [11].

It is convenient to note that, in Margach, after the jury retired, they asked whether the concept of the ordinary person incorporated gender considerations. The Court considered that this showed that the jury were unclear as to the attributes of the ordinary person for the purposes of the test they had to apply to determine the issue of provocation. Their Honours pointed out that the inadequacy of the trial judge’s direction in that regard was brought to her attention by the prosecutor who submitted that her Honour should spell out for the jury that:

… by ordinary person the law mean[t] a person with ordinary powers of self-control.

Instead of adopting this course, her Honour instructed the jury that the ‘ordinary person’ could be male or female and that they were to ask themselves –
… Well, what would an ordinary, normal, average member of our community do if provoked to that degree? …

In response, the prosecutor repeated his submission that ‘ordinary person’ should be defined by the judge in accordance with what he said was established by the authorities, namely, that an ordinary person meant a person with ordinary powers of self-control. Her Honour responded by saying that this would be included in the written definition that she would later give to the jury, but this did not occur.

It is also appropriate to set out at this point the passage from the decision in Masciantonio v The Queen (‘Masciantonio’),[12] to which reference was made in Margach, that summarises the central elements of provocation. The High Court there explained:

Homicide, which would otherwise be murder, is reduced to manslaughter if the accused causes death whilst acting under provocation. The provocation must be such that it is capable of causing an ordinary person to lose self-control and to act in the way in which the accused did. The provocation must actually cause the accused to lose self-control and the accused must act whilst deprived of self-control before he has had the opportunity to regain his composure.
It follows that the accused must form an intention to kill or to do grievous bodily harm (putting recklessness to one side) before any question of provocation arises. Provocation only operates to reduce what would otherwise be murder to manslaughter. 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.

[12](1995) 183 CLR 58, 66-7 (Brennan, Deane, Dawson, Gaudron JJ).

In McKeown the vice arose because, given the context in which reference was made to proportionality, there was a risk that the jury may have understood that proportionality was an essential (or additional) element of provocation. It should be noted that in that case the jury did not have the benefit of a written handout that set out the elements of provocation so that, in the circumstances of that case, the wording of the charge was such that, in its context, the ‘second aspect’ of provocation may have been thought by the jury to be ‘limited to, or include, the requirements of proportionality’. As Callaway JA said, the sentence may not have been regarded as merely introductory to the second element of proportionality.[13] It has already been noted that this decision was followed in Barrett where the impugned charge was in identical terms.
[13]McKeown [2006] VSCA 74, [4].

In Margach, the problem was possibly even more apparent. In that case, as can be seen from the terms of the impugned charge that have been reproduced here,[14] the first and second elements of provocation were ‘separated’ by reference to proportionality, so that the risk was present that the jury might have thought that proportionality was a separate element of provocation, such that if they were satisfied that the offending conduct was not proportional to the provocation, the killing would not be reduced to manslaughter.
[14]See [19] above.

In the present case, however, given the circumstances of her Honour’s charge, I consider that there is no real possibility that the jury would have reasoned in the impermissible manner that was highlighted in the above-mentioned cases.

Taking first the written charge in this case, it is plain enough that it does not contain the vice present in Margach to which reference has just been made. In her Honour’s handout there is no interposition of proportionality between the first and second elements of provocation. The reference to proportionality is plainly within the description of the second element of the offence such that, on a fair reading of the document, it is apparent enough that the first sentence that deals with proportionality is introductory to the second sentence which describes the objective test by reference to the ordinary person. And that this was the plain meaning of the paragraph numbered 2 is confirmed by the objective test set out under the sub-heading ‘SECONDLY’[15] that concludes with the reference to the onus of proof being on the Crown to negative either of the two elements of provocation.
[15]See [14] above.

In addition, in her oral charge the trial judge again emphasised the second element of provocation in terms that could not sensibly have given rise to the possibility that proportionality would be regarded by the jury as a separate ingredient of the ‘defence’ of provocation. Her Honour essentially told them that the second aspect of provocation involved a two step process of the ‘assignment of proportionality of the response’. It is plain enough, I think, from the whole of her Honour’s relevant charge that what the jury would have understood was that, in considering whether the Crown had negated the second element of provocation, they were required first to assess the gravity of it upon the offender by reference to his relevant characteristics and secondly –

… apply an objective test of whether an ordinary person provoked to the degree that you find the accused might have been provoked, might have lost self-control and acted in a manner which would encompass the accused’s actions …

And her Honour emphasised again to the jury that it was for the Crown to negate provocation.

In the circumstances of this case, therefore, I consider that, given the whole of her Honour’s relevant charge on provocation, there is no realistic likelihood that her reference to proportionality would have caused the jury to consider that it was an essential or additional part of the element of provocation. The situation here, as I have said, is relevantly different from that in McKeown, Barrett and Margach. Having said that, however, I respectfully agree with the observations of Eames JA in Barrett, to which I have referred, namely, that the objective test subsumes the element of proportionality and it is generally undesirable to make a separate reference to it in the context of describing the elements of provocation.

Thus, I would reject ground 3(a).

Ground 3(b): Direction as to applicant’s reaction

It was next argued for the applicant, under cover of ground 3(b), that her Honour erred by telling the jury that the objective test involves determining whether an ordinary person would have reacted in the same way as the applicant did. It was said for the applicant by reference to McKeown and R v Thorpe (No 2)[16] (‘Thorpe’) that, for the purpose of the objective test, it was not a question whether the ordinary person would have lost self-control to the point of reacting in the precise way as the offender did, but rather whether the ordinary person, provoked, would have formed the requisite intent and given effect to it, thereby causing the death of the deceased. In that regard, the applicant pointed to the following passages in the charge:
[16][1999] 2 VR 719, 724.

The second aspect of provocation contains within it two elements and it is that the provocation must be such that an ordinary person placed in the accused’s position might have been caused to react in the same way as the accused reacted.
…
… you then have to determine if provocation with that degree of gravity might have caused an ordinary person to lose self-control and act in the manner which the accused did.
Now the manner is the hitting of the deceased and the placing of his hands around the throat and compressing her neck.
…
[The Crown has] to satisfy you either that he did not lose his self-control, … that is that he was not provoked and did not lose his self-control or if he did or if he may have or he might have that an ordinary person provoked to the gravity that the accused might have been provoked would not have gone on to act in the way that the accused did.

Reference was also made to the passages in the handout that dealt with the question of the ‘reaction’ of the ordinary person to the provocation by the deceased.

In Thorpe this Court relevantly said:

The objective test is whether the provocative words or conduct, measured in gravity by reference to the personal situation of the accused, could have caused an ordinary person to lose self-control to the extent that the accused did: see Stingel v R at 325 and Masciantonio v R at 69. (Putting recklessness to one side, as the High Court did in Masciantonio v R at 66, it is the formation of an intention to kill or do really serious physical injury and the carrying out of that intention which are the important considerations, rather than the precise way in which the accused reacted …).[17]

It seems apparent enough, as was submitted for the respondent, that the essential point in this passage is that it would be wrong to direct the jury that provocation will only be made out if the jury were satisfied that the ordinary person would have reacted in the precise way in which the accused reacted. The Court in Thorpe emphasised that the objective test was concerned with whether, in the relevant circumstances, the provocative acts could have caused the ordinary person to lose self-control to the extent that the applicant actually did, although what the applicant actually did was only one way in which an ordinary person may have reacted. Essentially that is what her Honour conveyed to the jury in the handout, as was reinforced by the following passage in her charge:
Secondly, having assessed that degree of gravity, you then apply an objective test of whether an ordinary person provoked to the degree that you find the accused might have been provoked, might have lost self-control and acted in a manner which would encompass the accused’s actions, those actions being as I have described.

[17]Ibid.

It seems clear enough, therefore, from these passages that her Honour was not directing the jury that it was an essential aspect of provocation that the ordinary person would have reacted to the provocation in precisely the same way in which the applicant did. Her Honour made it plain enough, I think, that provocation may operate if the ordinary person’s reaction to the provocation might have encompassed the relevant conduct of the applicant.[18]
[18]See R v Gojanovic (No 2) [2007] VSCA 153, [126]-[133].

In the circumstances, I would reject this aspect of ground 3(b).

Ground 3(b): Reversal/dilution of standard of proof

It was then argued, also under cover of ground 3(b), that the judge reversed or diluted the standard of proof borne by the prosecution. In that respect counsel referred to her Honour’s direction to the jury that it was for them to determine whether the deceased had acted as the applicant claimed and whether the applicant lost self-control as a result of the deceased’s conduct and if they were satisfied as to that, it was then necessary for them to assess the gravity of the provocation and whether, given the gravity, it might have caused an ordinary person to lose self-control as the applicant did. It was said that these directions effectively reversed or diluted the standard of proof. Counsel complained that her Honour failed to re‑direct on this issue notwithstanding that exception was taken to the form of the charge. It was argued that the Crown did not put in issue the applicant’s version of what the deceased did and said to him and what he said he did to the deceased that resulted in her death. It was claimed that in those circumstances, and since the applicant’s account of what he said had occurred as set out in the record of interview was reasonably possible, his version had to be accepted by the jury unless it was negatived by the Crown. And the complaint was that her Honour’s charge was deficient because it did not instruct the jury that it was for the Crown to negative the applicant’s version of the relevant events. It was argued that her Honour’s written direction to the effect that the onus was on the Crown to negative provocation and the emphasis on this near the end of oral charge and in the handout were insufficient to overcome the claimed error. It was pointed out that it was not a matter of whether the applicant’s account in the record of interview was accepted by the jury but whether they were satisfied beyond reasonable doubt of his guilt, which would require them to reject the truth of his version. In the circumstances, it was claimed, there was a real risk that her Honour’s impugned directions may have had the effect of relieving the Crown from proving its case beyond reasonable doubt.[19]
[19]See Murray v The Queen (2002) 211 CLR 193, 201-2 (Gaudron J).

I consider, however, that her Honour’s charge as a whole would have made it plain to the jury that the onus was on the Crown to establish beyond reasonable doubt that the applicant had not lost self-control, or if he did that an ordinary person would not have reacted to the claimed provocation as the applicant did, having regard to the gravity of the provocation. I consider that the judge made it obvious in her charge what was the standard of proof and that it lay on the Crown. That her Honour did not, in terms, tell the jury that it was for the Crown to negative the applicant’s claims in the record of interview does not mean that the judge diluted or reversed the onus of proof.

I mention for completeness that I also do not accept the applicant’s contention that her Honour erred when she told counsel that it was open to the jury to accept or reject the applicant’s account of the incident that went to provocation, or any part of it. It is plain enough that the jury could have properly rejected the applicant’s account of what occurred at the critical time as between himself and deceased notwithstanding that the Crown did not contend, in terms, that they should reject it. It was a typical situation of an issue being left for the jury’s determination and there is nothing that the applicant’s counsel has said in his submissions that has persuaded me that the jury diluted or reversed the onus of proof.

Hence, I would also dismiss this aspect of ground 3(b).

Ground 3(c): Intoxication

It was next said for the applicant under cover of ground 3(c) that her Honour erred in two respects in her charge concerning the relevance of the applicant’s intoxication[20] to the issue of provocation. First, it was claimed that her Honour’s directions dealing with the applicant’s intoxication at the relevant time were apt to mislead the jury into believing that intoxication was of no relevance to the assessment of the gravity of the provocation when they applied the objective test. Secondly, it was said that her Honour erred in telling the jury that if they were satisfied that the applicant was, or might have been, ‘provoked’ by something other than the deceased’s conduct provocation would not be a relevant consideration.
[20]As her Honour explained to the jury, the term ‘intoxication’ used in the charge included loss of sleep by the applicant and his being affected by drugs.

Before dealing with these claims, I note by way of background that it was common ground below, and before us, that the applicant’s intoxication was relevant to the question whether he in fact acted without self-control in response to the deceased’s relevant conduct at the time of the killing. It was similarly common ground that the ordinary person, whose ordinary powers of self-control constitute the benchmark of the objective test, is one who is sober. But it was argued for the applicant that his state of intoxication at the relevant time was also relevant to assessing gravity of the provocation for the purpose of determining whether an ordinary person as described might have been provoked such as to lose self-control.

Turning to the first complaint, I think there are at least two reasons why it is without merit. First, contrary to counsel’s claim, her Honour told the jury that, in determining the question of the gravity of the provocation, they were ‘entitled to take into account … the fact of the ingestion of drugs, and the lack of sleep’.[21]
[21]It is plain enough from her Honour’s charge that the jury would have understood that, in that context, her Honour was also referring to the applicant’s intoxication.

Secondly, I consider that even if her Honour had told the jury that the applicant’s intoxication was not relevant to an assessment of the gravity of the provocation, she would not thereby have erred. The High Court has made it plain that the gravity of the conduct said to constitute the provocation must be assessed by reference to the relevant characteristics, attributes or the personal situation of the accused, ‘[w]ere it otherwise it would be quite impossible to identify the gravity of the particular provocation’.[22] It is then a question of determining whether an ordinary (sober) person with ordinary powers of self-control could have responded to provocation of that gravity by losing self-control and doing essentially what the applicant did. The characteristics or the personal situation of the accused that may be relevant to the question of gravity include the person’s age, sex, race, physical features, personal attributes, personal relationships and past history and, in some circumstances, the person’s mental instability or weakness.[23] As the court said in Stingel, ‘none of the attributes or characteristics of a particular accused will be necessarily irrelevant to an assessment of the content and extent of the provocation involved in the relevant conduct’.[24]
[22]Stingel v The Queen (1990) 171 CLR 312, 326.
[23]Ibid; Masciantonio v The Queen (1995) 183 CLR 58, 67 (Brennan, Deane, Dawson and Gaudron JJ).
[24]Stingel v The Queen (1990) 171 CLR 312, 326 (emphasis added).

But as was also made clear in Stingel, the characteristics, attributes or factors personal to the accused must, in order to be relevant to the inquiry, bear upon the objective assessment of the gravity of a particular wrongful act or insult. Thus, for example, the mental instability or weakness of an accused might, depending on the circumstances, be a relevant consideration in the assessment of the gravity of the deceased’s ‘provocative’ conduct. As their Honours said in that case, such a factor would assume critical significance if the conduct of the deceased said to have been provocative constituted of insults that the accused was mad.[25] Thus, it seems that, in broad terms, the characteristics or attributes of an accused by reference to which the gravity of the provocation may be assessed reflect a feature of the accused that is of a permanent, and not temporary or transient, nature, and they also bear upon the objective assessment of the seriousness of the provocation.
[25]Ibid. The Court said: ‘For example, it may be of critical importance to an assessment of the gravity of a last of a series of repeated insults suggesting that the person to whom they are addressed is ‘mad’ to know that that person has, and understands he has, a history of mental illness’.

In my view, the applicant’s intoxication could not be said to have been a reference point by which the gravity of the provocation was to be assessed. It was, relevantly, only a temporary state in which the applicant found himself and his intoxication said nothing about the content and extent of the deceased’s provocative conduct. Hence, I consider that her Honour would not have erred if she told the jury that the applicant’s intoxication was not relevant to the assessment of the gravity of the provocation. In any event, even if I am wrong in this regard, and intoxication may go to the issue of the gravity of provocation, intoxication is irrelevant to the question whether an ordinary person with ordinary powers of self-control could have lost self-control in the relevant circumstances.[26]
[26]R v Cooke (1985) 139 SASR 225, 235-6 (King CJ).

As to the second alleged error, counsel pointed to the following part of her Honour’s charge:

If [the applicant’s conduct was the result of intoxication] rather than the words of actions of the deceased doing something to provoke him, if it was the [intoxication] that caused him to lose self-control, then it wouldn’t be the words and actions of the deceased that provoked him. … You must find that he was provoked or that he might have been provoked by the words and actions of the deceased.
If you find that he was provoked or might have been provoked by something else entirely, then, of course, that’s not the words or actions of the deceased.

Thus, it was said, her Honour wrongly told the jury that if they were satisfied that the applicant was or might have been ‘provoked’ by something other than the deceased’s conduct, provocation would not be a relevant consideration.

In my view, however, the complaint is also without merit. It is plain enough that if intoxication was the only reason that the applicant in fact lost self-control the ‘defence’ of provocation would not have been open to him. In fairness to the applicant’s counsel, he did not press to the contrary. Rather, he contended that her Honour’s statement that provocation was not available as a ‘defence’ if the applicant ‘might have been provoked by something else entirely’ may have wrongly conveyed to the jury that they should put provocation to one side once they concluded that some factor, other than the deceased’s relevant conduct, might have provoked him, notwithstanding that the deceased’s behaviour was a material factor that brought about the applicant’s loss of self-control. I consider, however, that there is no real risk that the jury would have engaged in such impermissible reasoning. It is plain enough that they would have understood the impugned passage as telling them no more than that if the provocation was brought about by matters entirely separate from the deceased’s conduct, the ‘defence’ of provocation would not apply. And in that respect, her Honour was plainly correct.

In the circumstances, I would reject this ground.

Ground 3(d): Prime case put differently

It was then argued under cover of ground 3(d) that her Honour put to the jury a case for the respondent for which it never contended at the trial. Thus, it was said, the Crown never disputed the applicant’s claim in his record of interview that, while driving in the car, he was physically attacked by the deceased and that she said words to the effect of ‘Fuck your cross and fuck your grandmother.’ It was also not the Crown case, said the applicant, that he killed the deceased solely as a result of his being drug-affected or sleep deprived. Nevertheless, the applicant argued, her Honour’s direction on these matters was made on the basis that the Crown had so contended and thus, it was said, her Honour impermissibly expanded the Crown case after final addresses. This error, it was claimed, was fundamental to the integrity of the trial.

In my view, however, her Honour did no more than draw the jury’s attention to the above circumstances on the basis that the jury were not bound to accept those aspects of the applicant’s claims in his record of interview, as I have already mentioned. In the circumstances, given that it was made patently clear by her Honour that the onus of proof was on the Crown, no injustice resulted from these aspects of her directions.

Ground 2: Error in direction on manslaughter

Under cover of ground 2, the applicant alleged that her Honour misdirected the jury on manslaughter in the manner described below such as to blur in their minds the distinction between murder and manslaughter in relation to intention. More particularly, it was said that in her handout the learned trial judge set out respectively the relevant elements of murder, namely, the intent to kill the deceased or cause her really serious injury, and manslaughter, namely, the realisation by a reasonable person in the position of the applicant (irrespective of his intention) that the act would expose the deceased ‘to an appreciable risk of serious injury’. No complaint was made by trial counsel, or before us, as to this aspect of the charge. When, however, her Honour orally charged the jury on the elements of manslaughter by an unlawful and a dangerous act, she initially described the term ‘dangerous’ in accordance with the above part of the handout, namely, the realisation by a reasonable person in the position of the applicant that the act would expose the deceased ‘to an appreciable risk of serious injury’. But shortly thereafter in her charge her Honour referred to the content of the realisation as ‘an appreciable risk of death or bodily injury’, and a little later, as ‘an appreciable risk of death or serious injury’.

An exception was taken by the applicant’s counsel to this aspect of her Honour’s charge. It was put for the applicant that, although it was conceded that he was guilty of manslaughter by an unlawful and dangerous act, it was not conceded that a reasonable person in his position would have foreseen death as an appreciable risk of it. Counsel told her Honour that the exception was being taken for forensic reasons. Her Honour said that she had no problem about ‘correcting that’ and, a little later, brought to the jury’s attention the impugned part of her direction on unlawful and dangerous manslaughter, both written and oral, and pointed out that she had ‘inadvertently brought in the intention in respect of murder and talked about appreciable risk of death or really serious injury’. Her Honour went on:

Now the defence, of course, concede that there would have been any – a person looking at it would have seen an appreciable risk of serious injury. What they dispute, of course, relates to the death or really serious injury and that belongs to the murder.
So when I was speaking to you as against these words written, I actually confused the two. So I hope that’s clear.

An exception was taken to this re-direction. It was said that no ‘difficulty’ was seen in respect of the first part of her Honour’s re-direction but that her Honour did not state the position correctly when she said, as counsel then asserted to the trial judge:

So what you can see is the intention that you have to find for manslaughter is different to the intention that you have to find for murder.

Her Honour was asked to tell the jury that they did not ‘have to find an intention to manslaughter’ in order to convict on that charge. I note that, in seeking to tell her Honour what she was supposed to have said in the re-direction, as described above, counsel misquoted what the judge had actually said. Be that as it may, her Honour refused to re-direct the jury further on this issue given, she said, that the matter was made clear in the handout (with which counsel agreed) and that further directions were ‘going to confuse them’.

It was argued before us for the applicant in that her Honour’s above directions and re-directions were erroneous in a number of respect and caused the trial to miscarry. First, it was said, by speaking of an appreciable risk of ‘death or bodily injury’ or of ‘death or serious injury’ in the context of what may constitute ‘dangerousness’ for the purpose of manslaughter by an unlawful and dangerous act, her Honour impermissibly blurred in the minds of the jury the purpose of distinction between murder and manslaughter, or there was a risk that such a blurring may have occurred. It was pointed out that in Wilson v The Queen[27] the majority recognised that a direction on dangerousness that employs the words ‘really serious injury’ instead of just ‘serious injury’ brings manslaughter ‘perilously close to murder in this respect’ and the ‘distinction between the two may easily be blurred in the minds of the jury’.
[27](1992) 174 CLR 313, 333.

It was also said that not only did the re-direction not correct her Honour’s error, but it introduced a further error in as much as her Honour failed to make sufficiently clear the relevant differences between murder and manslaughter, importantly, that there was no requirement that there be an ‘intention’ to cause serious injury for the purpose of finding the offender guilty of manslaughter by an unlawful and dangerous act. Moreover, it was said, the re-direction misdescribed the concession by the applicant as to guilt of manslaughter.

I have already referred to the impugned passage, namely:

Now the defence, of course, concede that there would have been any – a person looking at it would have seen an appreciable risk of serious injury. What they dispute, of course, relates to the death or really serious injury and that belongs to murder.

As I understand it, the complaint was essentially centred on the last sentence in this passage, the claim being that it failed to make clear to the jury the distinction between murder and manslaughter. I consider, however, that this ground should be rejected for the following reasons. First, the relevant aspect of the judge’s charge, taken in context, makes it apparent that the relevant intention is an element of murder but not of manslaughter. Next, I think that her Honour made plain in her handout that ‘really serious injury’ was referable to murder and that ‘serious injury’ was relevant to manslaughter by an unlawful and dangerous act. In two parts of her charge, as has been noted, her Honour departed from this distinction by introducing in the context of manslaughter the concepts of ‘death or bodily injury’ and ‘death and serious injury’. In my view, however, it is plain enough that her Honour remedied this error by the above redirection so as to remove the risk of the ‘blurring’ to which reference has been made. That intention was not relevant to manslaughter was made apparent by her Honour’s description in her written document of the elements of manslaughter as compared with murder.

The complaint that the redirection introduced further error is also without merit. As I have noted, in seeking a redirection the applicant’s counsel emphasised that a consequence of her Honour’s impugned direction was that it did not make apparent that the applicant did not conceded that defending would have resulted in foreseeability of death or an appreciable risk of it. A redirection in that regard was sought, said counsel, for forensic reasons. I consider that her Honour sufficiently dealt with that in her redirection to which I have referred.

I also note that the exception to the redirection was not taken on the basis that her Honour misstated the applicant’s concession, but was made on the ground that it was not sufficiently plain that intention was irrelevant to manslaughter.

In the circumstances, I consider that there is no real risk that a miscarriage of justice occurred as is contended for by the applicant under cover of ground 2. I would dismiss this ground.

Ground 1 – wrongful admission of evidence from previous trial

It was next argued under ground 1 that her Honour erred in allowing the prosecution to read to the jury Melissa Dunkin’s evidence from the second trial. The circumstances in which this occurred were the following. Melissa Dunkin had given evidence at the previous two trials but, because of a head injury sustained by her in a car accident thereafter, she was unable to give evidence at the third trial. In the circumstances, the prosecution applied, pursuant to s 55AC of the Evidence Act 1958, that her evidence from the second trial be read to the jury. Her Honour allowed that course to be followed notwithstanding objections from the applicant. The judge said that she would deliver her reasons for the ruling at a later stage, but it seems that she had overlooked doing so. In the result, Ms Dunkin’s evidence from the second trial was read to the jury. So far as is relevant, s 55AC is in the following terms:

Section 55AC(2)
If on the trial of a person for an offence it appears to the court that a person has given evidence in a previous trial and that evidence was recorded and transcribed [as required by the Act] and that person –
(a)       is refusing to be sworn or give evidence; or
(b)       is dead; or
(c)       is out of Victoria; or
(d)      is so ill as not to be able to travel; or
(e)       cannot, after diligent search be found; or
(f)       has become mentally ill; or
(g)is keeping or is being kept out of the way to avoid giving evidence; or

(h) is incapable of giving evidence –

The evidence of that person, as recorded and transcribed, is admissible in any subsequent trial of the same person for the same offence or a related offence.

It was claimed for the applicant that the issue confronting her Honour was relevantly similar to that which arises where the possible application of the proviso is being considered. Counsel argued that, just as the operation of the proviso is often denied because the Court considers that, without seeing and hearing material witnesses, it cannot determine if a miscarriage of justice has not occurred by reason of the apparent error, so the jury in this case would be unable properly to determine the issue to which Ms Dunkin’s evidence related without hearing and seeing her. I think that this argument has no merit if for no other reason than that the matters relevant to the exercise of discretion in the proviso context are relevantly different from those that operate in determining whether the discretion should be exercised against admitting the evidence in question which, by reason of the operation of the legislation, is admissible. That the jury will not see the witness is only one of the matters to be considered for the purpose of the proviso.

I now come back to the applicant’s principal argument on this issue, namely, that her Honour’s exercise of discretion in not ruling against the admissibility of the transcript of Ms Dunkin’s evidence miscarried because it is plainly wrong. Ms Dunkin’s evidence related to whether, as mentioned earlier, the group of which she was a member ingested any, and if so what amount, of drugs during their meetings on the Thursday and Friday evenings immediately preceding the killing. I have already mentioned the different versions in this regard as between Ms Dunkin and Buttigieg. It was accepted by the applicant’s counsel before us that the matters he put to us as to why it was unfair to admit that evidence have all been put to her Honour. It is plain enough that the judge was not satisfied that relevant unfairness would result from Ms Dunkin’s evidence being made available to the jury in the form of the transcript and no error has been demonstrated in that regard. For example, her Honour expressed doubt as to the correctness of the applicant’s principal claim that unfairness would flow from the fact that Ms Dunkin’s evidence would be of her recollection three and a half or so years after the offending whereas Buttigieg, in his evidence, would be seeking to recall events that occurred six years or so ago. Similarly, the judge was not moved by the submission that Ms Dunkin would not be cross-examined as to matters not raised with her during the earlier trials. A similar observation was made by her Honour as to Ms Dunkin’s prior inconsistent statements. Her Honour said that such inconsistency would have been largely, if not wholly, highlighted during Ms Dunkin’s cross-examination at the second trial and that the transcript of this would be before the jury.

In support of his submission to her Honour for the exclusion of the evidence counsel pointed to what Hampel J said in R v Collins.[28] In that case his Honour dealt with the admission of evidence under s 163 of the Magistrates’ (Summary Proceedings) Act 1975 which provided, inter alia, that the deposition of a person since deceased may be used in evidence at trial upon the satisfaction of various criteria. The judge said that a matter of relevance to the exercise of discretion was the nature and importance of the evidence that was to be led under that provision. This general observation is unsurprising, but it is relevant to note that it was made in the context where Hampel J had to consider whether to permit the previous evidence of the witness on the issue of identification to be treated as evidence at the trial. In light of the importance of this issue the judge did not admit the evidence. As his Honour said in that case, the evidence in question, namely that of identification, was ‘of a kind which require[d] special assessment and consideration by the jury and in respect of which there [were] inherent dangers’,[29] thereby requiring extensive direction and possibly warnings to be given at the trial to ensure that its use did not result in the risk of an unfair trial. Counsel submitted to her Honour that the evidence of Ms Dunkin was also of considerable importance given that it differed from that of Buttigieg about the level of drug taking during the period shortly before the killing. But there is, I think, no relevant similarity between the present situation and that in Collins. Unlike the position in that case, here the evidence was not of a nature, such as that of identification evidence, that would call for special consideration or extensive directions by the trial judge.
[28][1986] VR 37, 41.
[29]Ibid.

The applicant’s claim that Ms Dunkin’s evidence was almost pivotal to the issue of the extent of drug consumption by the applicant and, thus, to the issue of intent was also not accepted by her Honour. Again, no error was demonstrated in her Honour’s conclusion. It is plain enough, as the applicant’s trial counsel agreed, that Ms Dunkin was not with the applicant and Buttigieg on Friday night and that she saw them only briefly on Saturday morning. Thus, as her Honour pointed out, her evidence concerning the conduct of the applicant was confined to a time well prior to the period of the offence. In any event, as her Honour observed, the transcript of Ms Dunkin’s evidence included her cross-examination at the hands of two, consecutive, experienced trial counsel. I note for completeness that her Honour gave the impugned ruling after she had read the relevant material from the earlier trials.

In all the circumstances, I consider that it cannot be sensibly said that her Honour’s decision not to exclude Ms Dunkin’s evidence from the second trial is obviously wrong. Some unfairness may have been occasioned to the applicant by reason of the admission of the evidence, but I do not think that the prejudice would have been of such proportion as to bring about the risk of a miscarriage of justice. To the extent necessary, any possible unfairness could have been dealt with by proper direction from the trial judge but, to my knowledge, no such direction was sought here. I consider that there is much force in her Honour’s comment to the applicant’s counsel that his apprehension that prejudice to the applicant would arise from the admission of the transcript of Dunkin’s evidence was overstated. It is not as if the jury were to be given her statement of events absent any recorded challenge to it. The transcript of her cross-examination at the earlier trial was put before the jury and that showed that her credit and reliability were strongly challenged. As the judge noted, she was cross-examined during the second trial, by senior counsel who traversed the issues at considerable length. And the jury would have had the benefit of reading that cross-examination. As I have said, in all the circumstances, I cannot accept that her Honour’s impugned decision is plainly wrong.

Failure to give reasons

Regrettably, as I have said, her Honour failed to provide the reasons for her ruling that she would permit the prosecution to place before the jury, as evidence before them, the transcript of Ms Dunkin’s evidence given at the earlier trial. I note for completeness that neither counsel sought reasons from her Honour. It is also unfortunate that her Honour did not inform the Court and the parties by way of a report pursuant to s 573 of the Crimes Act 1958 and rule 2.27 of the Supreme Court (Criminal Procedure) Rules 1998[30] why the reasons were not provided. One can only assume that, in the circumstances of the trial, the matter was overlooked. Nevertheless, although such an oversight is understandable, her Honour was under an obligation to provide an explanation for her ruling. There is no doubt that, as in civil cases, so in criminal trials, the judge is generally required to provide reasons for the operative decision made in the course, or at the conclusion, of a hearing of the relevant issue.[31] As this Court said in R v Juric:[32]

If reasons are to be given by a trial judge for a ruling which he has made in the course of the trial, those reasons should be given to the parties in the course of the trial, if that is practicable or, if it is not, so soon after the trial as to enable the party affected to obtain advice or be informed as to the prospects of an appeal. Furthermore, the appellate court itself has an interest in the provision of reasons, timeously given by the trial judge, for rulings which he has made in respect of evidence because it is only reasons so given which can fairly assist the court in its task of determining whether there has been a miscarriage of justice at the trial.

[30]No report was provided by the trial judge. It should be emphasised, however, that a judge’s report would not have been an appropriate vehicle for the provision of reasons but it is an avenue by which the judge could have explained their absence: see R v Juric (2002) 4 VR 411, 422-3.

[31]Webb v The Queen (1994) 13 WAR 276, 260 (Malcolm CJ), 267 ff (Ipp J).

[32](2002) 4 VR 411, 423.

Near the conclusion of the hearing of the applications the Court referred to the parties the observations of the members of the Full Court of the Supreme Court of Western Australia in Webb v The Queen[33] as to the consequences of the failure by the trial judge to give reasons for ruling, following a voir dire, that certain confessional material was admissible at the trial. The parties were given leave to file further submissions on this issue, and they availed themselves of this opportunity. Malcolm CJ noted:
[33](1994) 13 WAR 257.

The relevant Australian authorities have been collected by Ipp J. I agree with his Honour that, in the circumstances of this case, the failure of the learned Commissioner to give any reasons for his decision to admit the confessional material was an error of law. That error in itself resulted in a miscarriage of justice. The result, in my opinion, is that there was a fundamental flaw in the proceedings which would entitle the appellant to have the conviction quashed without more.[34]

In the same case Ipp J said:
Where an omission to give reasons at the conclusion of a voir dire concerning the admissibility of a confession results in it not being possible to determine whether the presiding judge has considered the true issues, and whether he has applied the appropriate legal principles and has taken all relevant factors into account, legal error is disclosed. If that were not the case the statutory right of appeal would be rendered nugatory. It is crucial that the judge’s reasons be sufficient to satisfy the overriding principle, namely, that the decision be couched in such a form as to make it possible for an appellate court, fairly, to assess its merits.
…
In the circumstances, in my opinion, the failure of the learned Commissioner to give any reasons for his decision to admit the confessional material was an error of law resulting in a miscarriage of justice. Accordingly, I joined in the order of this Court that the conviction of the appellant be set aside.[35]

[34]Ibid 260-1.

[35]Ibid 271.

Absence of reasons for a decision may vitiate it because it may thereby deprive the parties, and the appellate court, from being able to determine the basis on which the impugned decision was made. Here, however, as has been noted, the attack on her Honour’s ruling as to the admissibility of Ms Dunkin’s earlier evidence was based on the contention that the decision was plainly wrong. Hence, the correctness or otherwise of her Honour’s reasoning did not require consideration by us. For reasons I have given, I consider that her Honour’s decision is not plainly wrong. In the circumstances, I also consider that her Honour’s failure to provide reasons for the impugned decision did not vitiate her ruling or result in a miscarriage of justice.

New ground 3

Following the conclusion of the hearing of the applications for leave to appeal in this matter, the applicant’s counsel sought leave to add ground 3 in relation to the application for the leave to appeal against conviction, under cover of which it was alleged that the trial judge failed to direct the jury properly on the meaning of ‘ordinary person’ in the context of the second element of provocation and, in particular, did not explain that the ordinary person is one with ordinary powers of self-control. Failure to have done this, it was said, resulted in a miscarriage of justice. In this respect counsel relied on what was said in this Court in Margach. As there was no objection from the respondent to the late addition of the new ground, leave to add it was granted and directions were given as to the filing of further written submissions on this issue.

As I have pointed out earlier,[36] the impugned direction in Margach separated out the concept of proportionality from the first and second elements of provocation such as to create the risk that the jury might have reasoned impermissibly that it was an additional element of provocation. And this passage of the impugned charge in Margach also shows that, in the context of directing the jury on the objective aspect of provocation, the judge spoke first of the ‘ordinary man’ and later of the ‘ordinary person’ reacting in the same way as the accused did. It will also be recalled that the jury in Margach asked whether ‘ordinary person’ incorporated gender considerations. Moreover, in that case the trial judge did not provide them with a helpful answer notwithstanding the prosecutor’s assistance on the matter. In all the circumstances, the Court in that case concluded that the jury were unclear as to the attributes of the ordinary person for the purposes of the test, namely, a person possessing the normal or ordinary powers of self-control having regard to the age of the accused.
[36]See [23]-[25] above.

As I have said, the applicant in this case relied on the decision in Margach for the contention that, absent a judicial instruction to the jury that the ‘ordinary person’ is one with ordinary powers of self-control, there was a risk that the jury would not have reached that conclusion and, therefore, may have analysed the applicant’s conduct by reference to some other attribute of the ordinary person. It was also pointed out that the Court in Margach rejected the prosecutor’s submission that it could reasonably be inferred that the jury in that case would have realised that the ordinary person would be expected to exercise ordinary and normal powers of self-control. Thus, it was argued before us, the absence of the required instruction from the trial judge as to the relevant attributes of the ordinary person has given rise to the risk that a substantial miscarriage of justice has occurred.

The importance of ensuring that, in a trial where provocation is an issue, the jury understand that the critical feature or attribute of the ordinary person against which the offender’s conduct is to be relevantly compared is a person with normal or ordinary power of self-control cannot be overstated, as was made apparent, for example, in Masciantonio and Margach. There may be circumstances, however, where even if the jury is not in terms told of this critical attribute of the ordinary person, it can may properly be assumed that the jury must have realised that the standard against which the offender’s conduct is to be judged for the purpose of provocation is that of a person with normal or ordinary self-control. I consider that this is the situation in this case for the following reasons.

First, the difficulties that were present in Margach, did not exist here. Thus, there was no reference here in the charge to the gender of the ‘ordinary person’. Importantly, there was no indication from the jury that they had any difficulty in coming to grips with the concept of ‘ordinary person’. Similarly, there was no follow-up instruction from her Honour that may have caused a difficulty in that regard. And there was nothing said by her Honour in her directions, whether in the context of instructing the jury as to the gravity of the provocation from the perspective of the applicant or otherwise, that could be said to give cause for concern that the jury may have regarded as a relevant attribute of the ordinary person anything other than normal or ordinary self-control. In the circumstances, I consider that there is no reasonable likelihood that the jury would have regarded the ‘ordinary person’ as having relevant features other than normal or ordinary powers of self-control. Consequently, I consider that there was no reasonable risk that, if the jury got to the stage of considering whether the alleged provocation was capable of causing an ordinary person to lose self-control, they would not have regarded such a person as one who had normal or ordinary powers of self-control. It follows that I consider that, in the circumstances of this case, the trial judge’s failure to define for the jury the attribute of the ordinary person did not produce the risk of a substantial miscarriage of justice as the applicant contends. Hence, there is no need to discuss here R v Tuncay[37] to which reference was made by the respondent’s counsel. It follows from what I have said that I would not uphold the new ground 3.
[37][1998] 2 VR 19.

Sentencing application

I now turn to consider the applicant’s attack on sentence.

Ground 2(f): Breach of totality principle

It was submitted under cover of ground 2(f) that her Honour did not give any, or any sufficient, weight to the fact that the applicant would serve the sentence imposed by her Honour cumulatively upon the cancelled parole and another sentence that had been imposed in the interim, all of which had the effect of reducing the period of pre-sentence detention. The killing was committed while the applicant was on parole and, in the circumstances, he commenced serving the cancelled parole (of one year five months and two days – about 17 months) on 20 September 1999 and he also served a three months sentence for an unrelated matter that was imposed on 11 September 1999. Both of the sentences were served during the currency of the applicant’s remand on the murder charge which commenced on 15 September 1999. At the hearing of the plea of mitigation the prosecutor informed her Honour that as a result of the two sentences the period of pre-sentence detention would be reduced accordingly and that this period had to be taken into account for the purpose of totality.

In my view, there is nothing in her Honour’s sentencing remarks that indicates that, in sentencing the applicant, she did not have regard, or have sufficient regard, to the principle of totality, or the applicant’s obligation to serve the sentences upon which the impugned sentence was to be cumulated. And it seems to me that the length of the sentence does not lead to the inference that her Honour so erred. As I have noted, the matter was made apparent to the sentencing judge during the hearing of the plea in mitigation and it is almost inconceivable that this experienced trial judge would not have appreciated that unless the principle of totality were applied to the sentences an unacceptably high sentence would be produced.

Thus, I think that this aspect in the attack on her Honour’s sentencing discretion should fail.

Grounds 1 and 2: Manifest excess

The applicant also alleged under cover of grounds 1 and 2 that the sentence is manifestly excessive as is the non-parole period. In particular, it was said that her Honour failed to give any, or any adequate, weight to the following factors, namely: the fact that this was the applicant’s third trial; the delay of over six years to conclude the matter which the applicant spent in custody; the applicant’s efforts at rehabilitation in the interim; remorse; the way in which the trial was run; the applicant’s admissions to and co-operation with police; the judge’s finding that specific deterrence was ‘no longer … a significant sentencing issue’; and the operation of the principle of totality, and in particular the fact that the sentence would be served wholly cumulatively upon the cancelled parole and other sentences that had been passed in the interim.

I would reject this claim. The abovementioned factors were referred to in the sentencing remarks and, on their face, there is no basis for suggesting that her Honour did not give them sufficient weight. I consider that, given that the offence is the most grave offence in the criminal calendar, and having regard to the applicant’s prior history and that the offending was itself brutal, and also having regard to the importance of the Court being seen to denounce the offences and the importance of other applicable sentencing principles such as general deterrence, even where these

factors are balanced against the personal circumstances of the applicant and the other mitigating factors, the sentence and non-parole period cannot be properly characterised as being outside the range of sentences properly available to her Honour in the proper exercise of the sentencing discretion.
Conclusion

In the circumstances, I would also dismiss the application for leave to appeal against sentence.

VINCENT JA:

I agree in the disposition of this matter proposed by Chernov JA and I do so for the reasons advanced by him in his judgment.

WHELAN AJA:

I agree with Chernov JA, for the reasons his Honour gives, that the applications for leave to appeal should be dismissed.

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R v McCullagh (No 3) [2007] VSCA 293

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[2007] VSCA 293

13 December 2007