R v Miller
[2019] SASCFC 91
•29 July 2019
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Permission to Appeal)
R v MILLER
[2019] SASCFC 91
Judgment of The Court of Criminal Appeal
(The Honourable Justice Stanley, The Honourable Justice Parker and The Honourable Justice Doyle)
29 July 2019
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISDIRECTION OR NON-DIRECTION
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - SELF-DEFENCE AND OTHER FORMS OF DEFENCE
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - PROVOCATION - DIRECTIONS TO JURY
Application for permission to appeal against a conviction by jury of murder.
The evidence at trial was that the deceased, Danny Coombs, was killed outside his home in Barmera, during an altercation on the roadway between him and the applicant. The applicant was his next-door neighbour. Both men were intoxicated. There had been prior confrontations between the applicant and the deceased.
It was common ground that on the night of the incident both the applicant and the deceased were yelling and insulting one another. The deceased struck the applicant with a metal pole up to three times. The applicant was armed with a knife and fatally stabbed the deceased. The prosecution’s case was that the applicant provoked the fight and the stabbing was a deliberate act done under cover of self-defence. The applicant gave evidence that the stabbing was accidental and he did not intend to harm the deceased.
The grounds of appeal raise the following issues for determination. First, on the version of facts most favourable to the applicant, was provocation raised on the evidence? If so, did the trial judge err in failing to leave provocation to the jury? (Ground 3). Second, were the trial judge’s directions on self-defence erroneous in inviting the jury to consider self-defence only if having found the applicant had lied about an unintentional wounding? (Ground 4). Third, Were the trial judge’s directions on self-defence erroneous in inviting the jury to consider whether the applicant had been a “willing combatant” and, if so, to conclude that, without more, self-defence had therefore been negated? (Ground 1).
Held per Stanley J (Parker and Doyle JJ agreeing):
1. On the version of facts most favourable to the applicant provocation was not raised on the evidence. The trial judge did not err in failing to leave provocation to the jury.
2. The trial judge’s directions to the jury on self-defence were not erroneous.
3. Application for permission to appeal granted.
4. Appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 15(1), referred to.
Lindsay v The Queen (2015) 255 CLR 272, applied.
Masciantonio v The Queen (1985) 183 CLR 58; Van den Hoek v The Queen (1986) 161 CLR 158; Stingel v The Queen (1990) 171 CLR 312; Perara-Cathcart v The Queen (2017) 260 CLR 595; Morgan v Colman (1981) 27 SASR 334; R v Bridgland [2014] SASCFC 80, discussed.
The Queen v R (1981) 28 SASR 321; Moffa v R (1977) 138 CLR 601; Green v The Queen (1997) 191 CLR 334; La Fontaine v The Queen (1976) 136 CLR 62; Barker v The Queen (1983) 153 CLR 338; Zoneff v The Queen (2000) 200 CLR 234; Jessen v Police (2011) 112 SASR 1; R v Nguyen (1995) 36 NSWLR 347, considered.
R v MILLER
[2019] SASCFC 91Court of Criminal Appeal: Stanley, Parker & Doyle JJ
STANLEY J:
Introduction
This is an application for permission to appeal against conviction.
The applicant was found guilty of the charge of murder after a trial by jury.
The application for permission to appeal is out of time. The explanation for the delay is set out in the affidavit of the applicant dated 6 November 2018. When the application for permission came on for hearing the Court granted the extension of time.
The proposed amended grounds of appeal filed on 11 February 2019 raise the following issues for determination:
1.On the version of facts most favourable to the applicant, was provocation raised on the evidence? If so, did the trial judge err in failing to leave provocation to the jury? (Ground 3).
2.Were the trial judge’s directions on self-defence erroneous in inviting the jury to consider self-defence only if having found the applicant had lied about an unintentional wounding? (Ground 4).
3.Were the trial judge’s directions on self-defence erroneous in inviting the jury to consider whether the applicant had been a “willing combatant” and, if so, to conclude that, without more, self-defence had therefore been negated? (Ground 1).
The evidence at trial
The deceased, Danny Coombs, was killed on 1 February 2017 on the street outside his home in Barmera, during an altercation on the roadway between him and the applicant. The applicant was his next-door neighbour. Both men were intoxicated.[1]
[1] Agreed facts No. 23 and 24 of P20; T498-508.
The applicant lived at 128 Nookamka Terrace in Barmera. The deceased, when with his partner Jessica Bridgland (Jessica), lived at 126 Nookamka Terrace. The deceased had only resumed residence with Jessica about a week prior to his death.[2]
[2] T540.
Jessica and the deceased had been in a relationship for about 13 months. Jessica gave evidence that the deceased had been violent towards her in the past, that she had sought an intervention order and that she had told the applicant that she had done so.[3]
[3] T568, 580.
There had been prior confrontations between the applicant and the deceased, owing to and adding to their dislike of one another. On one occasion, police had attended due to a dispute. Neighbours gave evidence of hearing other disputes.
The incident police had attended occurred approximately 10 months prior to the fatal stabbing. At trial this became known as the “Pichl incident” because officer Pichl was the police officer who had attended at Nookamka Terrace. Officer Pichl had spoken to each of the men, and had found the deceased in possession of a knife away from the scene, albeit this was some time after the incident and there were opportunities for the deceased to have armed himself in the interim.
At the time of this incident, one of the neighbours, David Mills, had heard an argument between the applicant and another male who he thought was the deceased, where one of them was heard to say words to the effect, “put the knife down”.[4] It was not entirely clear on the evidence which of them was apparently armed with a knife and who had said, “put the knife down.”
[4] T270.
Another neighbour, Rodney Goslin, gave evidence that he had heard the applicant frequently say words to the effect, “if you take the first swing, you’re gone”, or “come and take the first swing and I’ve got ya, self-defence.”[5]
[5] T327, 361, 366.
Mr Goslin said he knew the applicant’s voice.[6] He had heard him out the front of his home speaking with a very loud voice, continually, using bad language.[7] Mr Goslin spoke about prior altercations he had witnessed between the applicant and the deceased.[8] He described their interactions or relationship as, “a bit of grief.” He said, “Every time Danny [the deceased] showed up, Michael [the applicant] wasn’t too happy”, that he would “get stuck in with the verbal … abuse.”[9] He recalls he would shout things like “rock spider”, “paedophile” and “murderer”.[10]
[6] T317.
[7] T362.
[8] T319.
[9] T319.
[10] T319.
Mr Goslin said he heard things like this on three or four occasions in the lead up to the night of the fatal incident.[11] Without being able to relay specific occasions, he said the applicant would often stand in his own yard “going off” with foul language and calling the deceased all sorts of things, at the top of his voice.[12] Mr Goslin said sometimes he would go out and see it was the applicant. Sometimes he did not need to because he knew his voice.[13] When he would go out, he would see the applicant “cracking a fit, going berserk at Danny.”[14] He said the applicant would generally be standing in his own front yard at the dividing fence between the two houses when he was shouting.[15] He said he also heard the deceased shouting on occasion. [16] Mr Goslin described the situation in this way:[17]
“The minute they spot each other there was something there, they were none too happy to see each other at any stage of the game but Michael was very aggressive about what was going to happen. Every time.”
[11] T319.
[12] T319.
[13] T319.
[14] T320.
[15] T320.
[16] T337.
[17] T321.
Mr Goslin said he believed on several occasions he had heard the applicant say, “if you come on my property, it would be self-defence.”[18] He said that the applicant was “goading” and “pushing” the deceased.[19]
[18] T350.
[19] T351.
Mr Goslin and his partner, Shelley Walker, witnessed some of the fatal altercation, but much of their view was obscured. What they saw is consistent with both of the men “advancing, retreating, advancing, retreating”,[20] or, as Mr Goslin put it, “a bit of to and fro” with neither of the two walking away.[21]
[20] T372.
[21] T321-350.
Another neighbour, Ronald Chandler, gave evidence that about a fortnight before the fatal incident[22] he was watering his garden out the front when he heard arguing.[23] He went around onto the footpath across from No. 128 and could see someone, who he believed was the applicant,[24] whom he described as a tall man walking up and down the veranda behind the bushes. He said the man kept walking across to the fence of No. 126.[25] He was shouting, “come out you gutless” and “fight like a man” and “I’ll find you”.[26] The shouting man was tall and was in the applicant’s front yard. The deceased was not a tall man. The applicant gave evidence that “Danny Coombs was a little bloke” and he is “a big bloke”.[27]
[22] T185.
[23] T181.
[24] T181.
[25] T182.
[26] T181.
[27] T760.
Jessica gave evidence that on the day of the fatal stabbing she and the deceased had been drinking all day. There was independent support for her evidence of their movements.[28] She and the deceased had been at the Barmera Football Club for a member’s draw at 7:30 p.m. and some time after the draw, they walked the short distance home to 126 Nookamka Terrace.[29]
[28] T190-211; T212-217.
[29] T551-2.
Jessica gave evidence that they had had the “best day” together and had not argued that day.[30]
[30] T604.
Jessica conceded that she was drunk and that her memory of that evening was poor. She said that she remembered “bits and pieces”.[31] She recalled returning home and making sandwiches for herself and the deceased.[32]
[31] T552.
[32] T553.
Jessica recalled that the two of them were not home for long before they heard shouting from outside.[33] The applicant was calling out “dog”, “rock spider”, “paedophile” and “woman basher”. She and the deceased went outside and saw the applicant was on the other side of the road.[34]
[33] T553.
[34] T553.
The applicant and the deceased shouted obscenities at each other.[35]
[35] T546.
The applicant had a knife, so Jessica called triple-0. When her sister, Lillian Bridgland (Lillian) arrived at the scene in response to the commotion, Jessica passed her mobile phone to Lillian.
While many neighbours overheard or saw parts of the altercation, there were only three witnesses who saw the actual moment of the stabbing, namely: Jessica, Lillian, and Lillian’s boyfriend, George Sneddon. Lillian was on the phone to triple-0 for the majority of the altercation.
The triple-0 recording[36] commenced at 8:36:38 p.m. and was made from Jessica’s mobile phone.[37]
[36] Exhibit P14, T15.
[37] Agreed fact 16 of P20.
Initially Jessica can be heard complaining that the applicant is “mouthing off” to the deceased, stating, “my neighbour’s starting on my boyfriend.”[38] This is at a time when no other eyewitnesses were present at the scene. Lillian and George Sneddon were yet to arrive.
[38] P15 Q1-9.
Two male voices can be heard shouting obscenities back and forth.[39]
[39] P15 Q11.
There is evidence that the applicant began brandishing a knife at this early stage in the altercation. Jessica states, “He’s got a knife”, “my neighbour’s got a knife in the hand.”[40] At about this time, Lillian arrives at the scene, and Jessica says, “my sister’s here at the moment.”[41]
[40] P15 Q16-19.
[41] P15 Q21.
Lillian gave evidence that she heard shouting from a neighbouring property.[42] She came down the laneway[43] toward the scene where she saw the applicant on the road and the deceased and Jessica standing in Jessica’s yard.[44] She said that she recalled Jessica coming up to her, screaming, and handing her a phone within a couple of minutes of her arrival.[45] When Lillian arrives on the scene, Jessica is heard on the phone recording saying that the applicant has put the knife in his bag.[46]
[42] 19 Bice Street.
[43] Refer Exhibit P4; the laneway between Bice Street and Nookamka Terrace adjacent to 126 Nookamka Terrace.
[44] T394.
[45] T394.
[46] P15 Q23.
Lillian gave evidence that before speaking on the phone, she saw that the applicant had a blue or black cooler bag.[47]
[47] T394.
The applicant can be heard at this point calling the deceased a “paedophile”, and the deceased can be heard responding, “don’t call me a paedophile you piece of shit.”[48] Jessica reports, “he's calling my boyfriend a paedophile.”[49]
[48] P15 Q25.
[49] P15 Q25.
There is evidence the applicant then takes a knife out of his bag and Jessica can be heard saying “[it is] a big, big knife... he's got it out now!...”.[50]
[50] P15 Q26.
At this point, Jessica hands the phone to her sister Lillian, who remains on the phone from that time.[51]
[51] P15 Q27.
The applicant and the deceased continue to shout obscenities.
There is evidence the applicant and the deceased are on the road at this time.[52] Lillian can be heard shouting “get the fuck off the road.”[53] Lillian reports that the applicant is swinging his knife around and the deceased is visibly angry and wanting to fight. This is described by Lillian on the phone recording and was elaborated upon in her evidence. On the phone Lillian says, “he's swinging the knife around and my sister's boyfriend wants to fight him on the road but I, I'm trying to get him to go inside.”[54] In her evidence, Lillian said the deceased was very angry, walking up and down into the yard and onto the footpath.[55] She described the applicant as “going crazy”.[56]
[52] T410.
[53] P15 Q39.
[54] P15 Q49.
[55] T410.
[56] T394.
Lillian recalled the applicant holding the knife in his hand.[57] She described it and identified the knife.[58] She said the applicant was waving it.[59]
[57] T395.
[58] Exhibit P8, T398.
[59] T444.
Lillian gave evidence that she stayed in the area on the footpath at the end of the laneway,[60] the applicant stayed on the road but moved around[61] and the deceased was going from his yard onto the road and then coming back to the yard.[62]
[60] T396.
[61] T396.
[62] T397.
About four minutes into the triple-0 recording, Lillian says the deceased picked up a metal pole or a stick.[63] In her evidence Lillian was unsure whether this was the skinny metal rod[64], or a stick “like off the trees”.[65] At this point, either the applicant or the deceased, Lillian could not be sure which, says “come on cunt”.[66]
[63] P15 Q50.
[64] Exhibit P12.
[65] T411.
[66] P15 Q53; T412.
Shortly thereafter, Lillian can be heard on the phone saying that the deceased has a “metal, skinny pole, just in case he comes near her”. In her evidence, Lillian confirmed that at that stage, the deceased was holding the thin metal rod,[67] as he was standing in the front yard of his own house, while the applicant remained on the road or footpath.[68] Her evidence was that the deceased “just grabbed [the metal rod] and like defended his-self (sic) in the garden. He didn’t really do anything with it.”[69] She said the deceased just held the pole in one hand, [70] “in front of him like a walking stick…just in case” while he was in the front yard.[71] The deceased never took the rod out of the yard.[72]
[67] Exhibit P12.
[68] T399, 411-12.
[69] T429.
[70] T455.
[71] T401.
[72] T456.
On the other hand, the applicant gave evidence that at one point the deceased held up the rod like a javelin and threatened to “spear” him.[73]
[73] T711.
The rod was found by police in the yard.[74]
[74] P12; Photograph 5 of Exhibit P9.
About five minutes into the triple-0 recording, the deceased and Jessica go inside their house, while the applicant remains outside on the road. Lillian reports, “they're going inside… my…sister's boyfriend's gone inside and the other one's on the road still.”[75]
[75] P15 Q61-62.
Once the deceased and Jessica are inside, the applicant can be heard calling out “cocksucker”.[76] In her evidence, Lillian said she remembers this was the applicant but said it was frustrating that she could not really remember what was happening at that time.[77] She said that she thought this was about the time when the applicant came over to her and asked her for marijuana.[78]
[76] P15 Q62.
[77] T412.
[78] T395, 413.
Lillian gave evidence of her recollection of her sister and the deceased retreating inside and coming back outside. Lillian said, “like my sister got him inside to calm him down and then moments later he came running out.”[79] Lillian could not recall what was being said but she could hear Jessica calming the deceased down inside, “like trying to tell him to settle down and relax and breathe”.[80]
[79] T403.
[80] T403-404.
It was at this time, while Lillian was outside and the deceased was inside with Jessica, that the applicant came up to Lillian and asked her if she had marijuana.[81] The applicant still had the knife in his hand. Lillian gave evidence that, as a result, she said “I freaked out, so I asked him to put it away but he said, ‘No…[82] I won’t give it to you’”.[83]
[81] T404.
[82] T395.
[83] T445.
Shortly after “cocksucker” can be heard on the recording of the triple-0 recording, the deceased comes back outside.[84] Lillian gave evidence that she recalled the deceased came “running out and he’s like, ‘leave her alone, she’s just a child’”.[85]
[84] P15 Q64.
[85] T404.
Lillian said that the deceased and the applicant were very angry at this point and were screaming and shouting at each other.[86] The applicant started walking backwards from the laneway back onto the road.[87]
[86] T460.
[87] T404, 405.
At this point in the triple-0 recording, the applicant can be heard calling the deceased a “fucking paedophile” and the deceased responding, “don't even say that mother fucker.”[88] In her evidence, Lillian identified their voices.[89] On the phone, Lillian reports that the deceased was looking like he was “about to box” and was “trying to box on with the man now.”[90] The applicant still had the knife out at this time.[91] Lillian said:
“My sister's boyfriend's trying to… bring him out for a fight. And he's just backing, the guy with the knife is trying to back away…”.[92]
[88] P15 Q65.
[89] T414.
[90] P15 Q65.
[91] P15 Q66-67.
[92] P15 Q70.
While this is happening, Jessica picks up sticks and rocks and throws them towards the applicant, but they miss him.[93] The deceased continues to shape up to the applicant who remains on the road with the knife[94] and by this point, George Sneddon joins Lillian in the laneway.[95]
[93] T415.
[94] P15 Q74.
[95] P15 Q76.
The applicant can be heard taunting the deceased, saying things such as, “you're not a man … you're not a man”.[96] In her evidence, Lillian identified this voice as the applicant’s.[97]
[96] P15 Q77-79.
[97] T416.
As at about eight minutes and 46 seconds into the recording, which equates to about 8:45 p.m., the applicant has the knife in his hand, pointing it at the deceased, and the deceased is trying to shape up to fight him, that is, punch him.[98]
[98] P15 Q80; T418.
The applicant can be heard calling out “rock spider” and other indecipherable shouting can be heard.[99]
[99] P15 Q81-83.
Lillian can be heard shouting at the applicant, “Jesus, go to your house.”[100] In her evidence, Lillian could recall she told the applicant to go to his house, and there was nothing stopping him from doing so, but he did not.[101] She also shouted for her sister Jessica and the deceased to get back inside, but they did not.[102]
[100] P15 Q83.
[101] T419.
[102] P15 Q83.
At about 10 minutes into the triple-0 recording, the applicant can be heard shouting things such as, “you don't respect women...[you] kill babies…”[103] In her evidence, Lillian could not make out what was said but recognised the voice as that of the applicant.
[103] P15 Q94.
Then both the applicant and the deceased can be heard shouting, “you're a piece of shit” virtually in unison. Someone can be heard saying, “you can't even fight me like a man you piece of …"[104] and the applicant can be heard saying, “you're not a man” and, “not gonna fight you like a man when you're not a man.”[105] A voice can be heard saying, “you come at me I'll defend myself.”[106] In her evidence, Lillian identified this voice as that of the applicant.[107]
[104] P15 Q95.
[105] T421.
[106] P15 Q97.
[107] T426.
At about 11 minutes into the recording, Lillian says, “Danny's walking up to him trying to act big and he's [the applicant is] pointing at the knife to say keep away from him.”[108] In her evidence, Lillian explained that at this point the applicant was on the road and the deceased was putting his hands behind his back and walking up to the applicant, “saying stuff”, and then walking back to the yard.[109]
[108] P15 Q98.
[109] T423.
In cross-examination Lillian said it was not the case that the applicant would always retreat when the deceased came out onto the footpath from the yard.[110] Lillian explained, “like Michael would walk up to him and start walking towards Danny and Danny would like start walking backwards”.[111] “They both did it, you know, like took the turns of walking forwards to each other, then they’d walk back and walk on the side.”[112]
[110] T460.
[111] T460.
[112] T479.
In her evidence, Lillian recalled that the applicant was “swinging the knife around and just like showing off” and she said “he was like waving it around in his hand and telling Danny ‘like back off’ or ‘I’m going to like defend myself and stab you’”. [113]
[113] T398.
On the recording, the applicant can be heard saying, “you pull knives on me, you pull weapons on me” and Lillian can be heard saying that the applicant is “singing out that Danny's pulled weapons and all this stuff on him."[114]
[114] P15 Q98; T424.
At this point, there is evidence the applicant still has the knife in his hand and the deceased is unarmed. Lillian says, “Danny's got…he's got nothing but the other guy's got the knife still”.[115] She confirms on the phone that the deceased does not have the stick any more, saying, “nup, he put it down but he's standing there on the road like couple of inches to him trying to, trying to start him off more."[116] She says the deceased is “tormenting the guy with the knife.”[117] In her evidence, Lillian said both men were tormenting each other.[118]
[115] P15 Q99.
[116] P15 Q100.
[117] P15 Q101.
[118] T425.
At about 12 minutes into the triple-0 recording, the posturing between the two men escalates, and the deceased takes his top off in an attempt to fight the applicant, who still has the knife.[119] Lillian gave evidence that, “Danny jumped out of the yard and he walked on the road, and he took his top off and he put his hands behind his back and he’s like, ‘stab me, stab me’ and then he walked back in the yard.”[120] The deceased said, “If you’re going to stab me, stab me now”[121]. The deceased then walked back to the footpath and stood there screaming.[122]
[119] P15 Q102.
[120] T399.
[121] T454.
[122] T454.
In the triple-0 recording, a voice can be heard saying, “Fuck off dog…You're not a man. You're not a man. You're a fucking rock spider, paedophile, pain in the arse mad dog. You paedophile.” In her evidence, Lillian said it was the applicant who said these things.[123]
[123] T426.
The voice can also be heard repeating, “come at me and I'll fuck, I'll fucking defend myself you cunt. If you come at me I'll … myself.”[124] In her evidence, Lillian confirmed this was the applicant.[125]
[124] P15 Q103.
[125] T426.
At about 13 minutes into the triple-0 recording, the deceased and Jessica are looking for a shovel but cannot find one, so Jessica picks up the pole from the blind[126] and hands it to the deceased.[127]
[126] Exhibit P6.
[127] P15 Q107-110.
Lillian gave evidence that the second weapon that the deceased obtained was a thicker pole from the blind at the front of Jessica’s house.[128] Lillian recalled that the deceased asked Jessica for a shovel at first[129] but that only she knew where the shovel was. She said:
“I stashed the shovel at first and he was looking for like something to like protect himself with so he found the rod first and then ‘cos it was so skinny he chucked it away and then he went and found the big pole and ripped it off the thread. [130]... [After he got that pole] … He just jumped out of the yard and went on the road”.[131]
[128] T400.
[129] T427.
[130] T400.
[131] T429.
Lillian identified Exhibit P6 as the thicker pole.[132]
[132] T401.
At about 13 minutes and 25 seconds into the triple-0 recording Lillian shouts "Danny!",[133] which identifies the moment when the deceased swings the pole at the applicant and strikes him.[134] Seconds later, Lillian discovers the deceased has actually been stabbed.[135]
[133] P15 Q111.
[134] P15 Q112.
[135] P15 Q112-3.
Lillian gave evidence that once the deceased was armed with the pole from the broken blind,[136] he “walked out on the road and they was (sic) yelling and arguing and I seen him swing three times”.[137] She said the applicant was still standing on the road waving the knife around”.[138] She said the deceased did not run at the applicant, “he just walked.”[139] She said “He just took a few steps and swang”,[140] though she agreed it was “quick.”[141]
[136] Exhibit P6.
[137] T402.
[138] T402.
[139] T461.
[140] T462.
[141] T476.
She said:
“They were swearing at each other and then Michael was calling him names, so Danny jumped the fence, like just took a step over because it was small and then he like walked on the road and they was face to face yelling at each other and then that’s when Danny took a couple of swing and that’s then when Michael punched the knife in front of him…”.[142]
[142] T465.
When the deceased swung the pole, both he and the applicant were standing in the middle of the road right between the two houses.[143] Lillian saw the deceased swing the pole three times.[144] She said in her evidence:
“[The applicant] just took two steps back - like, I’m pretty sure the two. Like every time he swang, the second time they missed, but the third time I’m pretty sure Danny hit him in the leg and that’s when Michael just grabbed the pole straight off his hand”[145]
[143] T406.
[144] T406.
[145] T468.
Lillian described the swinging as “like a baseball bat swing,” each of the three times[146] and said that she was not sure if they were hard or soft swings.[147]
[146] T407; 466.
[147] T407.
She said the applicant was also trying to hit the deceased with the cooler bag he was holding.[148]
[148] T470.
She said, “Danny went to go swing again and then Michael just full on grabbed the pole and then just ripped it straight out of his hand”.[149] She said when the applicant grabbed the pole the deceased dropped it or threw it away, and “that’s when him and Danny like connected”.[150]
[149] T469.
[150] T407, 476, 474.
Lillian said that the moment the deceased had the pole taken from him he was defenceless. She said:
“Well he looked a bit scared at the time. Like because he had nothing in his hands and then that’s when I’m pretty sure Michael put his hand on Danny’s shoulder and then just leant straight in.”[151]
[151] T473.
…
“Well I seen Michael grab the pole and then he kind of lunged in and stabbed Danny” - “like he took a step before”.[152]
…
“I just seen him - his hand go straight at Danny’s heart, chest thing”[153]
…
“I seen Michael walk up to like take a step and stab Danny”. [154]
…
“it looked like a hip and shoulder and then all I just remember is Michael’s arm just going straight, like the knife was going straight into Danny”.[155]
…
“This is when Danny had nothing. Like when Michael took the pole off him he was just standing there defenceless and that’s when, you know, he got stabbed and everything went down quick.”[156]
[152] T407.
[153] T407.
[154] T407.
[155] T473.
[156] T473.
Lillian said that it happened quickly[157] and it was just “going onto dark” but she could still see everything. [158]
[157] T467.
[158] T467.
On the triple-0 recording, Jessica can be heard shouting, “He stabbed my boyfriend!...Get the ambulance”. [159]
[159] P15, Q113.
In her evidence Lillian said, “Danny grabbed his wound and he started walking back and my sister caught him and laid him down straightaway and tried to put pressure on his wound and that’s when I was talking to the police and they asked me to like check his pulse and see if he was still alive.” Lillian said she herself remained in the laneway.[160]
[160] T430.
The applicant went onto the footpath and just stood there.[161]
[161] T430.
Lillian recalled that it was about “half way through” the argument when George Sneddon came and stood right behind her at the end of the laneway.[162] Lillian said he just stood there near the fence on the footpath near the laneway, watching what was going on, not knowing what to do.[163]
[162] T405.
[163] T405-406.
George Sneddon gave evidence that he was walking in the area at the time of the altercation and heard shouting from afar.[164]
[164] T482.
After speaking to Lillian’s father on Bice Street and becoming concerned, he headed down the laneway.[165] When he got to the end of the laneway, he could see the deceased and applicant on the road and Lillian next to a tree on the phone to the police. He said Jessica was in her yard.[166]
[165] T482.
[166] T482.
Mr Sneddon said that he told the deceased to get inside but the deceased was “jumping up and down ready for a fight”[167]. He recalls the deceased was saying something like, “Drop the knife and be a big man and fight like a man”.[168] He recalled that applicant’s response was something like “you weren’t a man.”[169] Both men were speaking loudly and were “aggressive at each other”.[170]
[167] T483.
[168] T483.
[169] T483.
[170] T483.
Mr Sneddon said that the deceased had a shirt on when he first saw him.[171] At some stage he saw something shiny in the applicant’s hands but he did not know what it was at the time.[172] The applicant also had a bag on his shoulder.[173]
[171] T484.
[172] T484.
[173] T484.
Mr Sneddon gave evidence that:
“Danny turned around and said to him to drop the knife and be a big man and fight, Michael just turned around and said ‘No, you ain’t a big man’ and just kept going like that for a bit and then I turned around and said to Danny - Michael turned around and said ‘if you come near me, I’ll stab you in self-defence’, I said ‘Get inside, it ain’t self-defence if he stabs you’, then Danny told me ‘No’, because he was getting agitated and angry about it.”[174]
[174] T485.
He continued:
“Well Michael turned around and said to Danny that he was a rapist, a murderer and he got Danny angry, so Danny turned around and said to Jess ‘Can you get me a shovel?’, and there wasn’t a shovel around, so she ended up grabbing a pole that came from the windscreen and Danny ended up grabbing that, smacking Michael three times with it”.[175]
[175] T485.
Mr Sneddon recalled the deceased taking off his shirt at the time of asking for the shovel.[176] He described the pole the deceased got as a thick one, identifying the hollow pole.[177]
[176] T489.
[177] Exhibit P6.
Mr Sneddon described the deceased running up to the applicant and swinging the pole three times.[178] He recalled it connected twice; he thought in the shoulder and the rib, and said he actually saw it connect.[179] He described the applicant swinging the pole using two hands like a bat.[180]
[178] T486.
[179] T486.
[180] T486.
He said the third swing missed. He gave evidence that:
“the third swing Michael grabbed [the pole] and pulled it - pulled it towards him and it was like a combo kind of thing and straight after that Michael ended up swinging the knife.”[181]
[181] T486.
Mr Sneddon described in detail how the applicant grabbed the pole and what followed. He said the applicant grabbed towards the end of the pole with one hand. He could not say which hand.[182] The applicant had the knife in his other hand.[183] The applicant then “twisted the pole towards him”[184] then he reached out with his other hand with the knife in it and it connected with the deceased.[185] He said the applicant stepped forwards with the knife,[186] the pole was still in the applicant’s other hand,[187] and the deceased no longer had any contact with the pole at that point.[188] He said that when the pole was grabbed by the applicant, the deceased moved forward toward the applicant.[189] He said that the applicant had stepped forward with the knife, extending his hand.[190]
[182] T487.
[183] T487.
[184] T487.
[185] T487.
[186] T488.
[187] T488.
[188] T488.
[189] T489.
[190] T489.
At 14 minutes into the triple-0 recording, or 8:50 p.m., seconds after the stabbing, a male voice can be heard defiantly saying, "come at me you cunt."[191] The applicant conceded he said those words immediately following the stabbing.[192]
[191] P15 Q114.
[192] T775.
At 8:53 p.m., about three minutes after stabbing the deceased, the applicant himself called triple-0.[193] He advised the operator that he stabbed the deceased in self-defence.[194]
[193] Agreed fact 19.
[194] Exhibit P16 and P17.
A forensic examination was conducted and no injuries were observed on the applicant.[195] When police asked the applicant whether he had any injuries that he wanted photographed, the applicant said that he had no injuries.[196]
[195] T162-T163.
[196] T660.
Forensic pathologist Dr John Gilbert gave evidence that there was a single stab wound which caused the deceased’s death. It was 12 centimetres deep. The knife travelled through the costal cartilages and pierced the bottom of the heart and the path of the wound was consistent with the applicant’s account of the stabbing action.[197] He considered a moderate amount of force was used in inflicting the wound. In his opinion, the injury was of such a nature that the deceased would have died within minutes.[198]
[197] T299-301.
[198] T309.
There was evidence that at the time of his death the deceased had a blood alcohol concentration of 0.19 per cent. It was likely the applicant had a blood alcohol concentration of around 0.125 per cent. Professor Jason White gave evidence that intoxication at this level could affect a person’s movement, balance, mental state, cognition, decision making and levels of aggression.
The applicant gave evidence.
He said he believed the deceased was a violent man and that he had been violent to his partner, Jessica, which the applicant found objectionable.[199] The applicant felt Jessica should not have to “put up with” the deceased, the applicant had been worried about her and knew she had an intervention order against the deceased.[200] However, while he disliked him, he said he did not hate him and viewed him as a pathetic little boy who wouldn’t grow up.[201]
[199] T695.
[200] T568-570; 581; 584; 688-690; 695.
[201] T750.
The applicant said he just wanted Jessica to move away and wanted the deceased gone from his life.[202]
[202] T758.
Once the applicant had discovered that the intervention order was not being adhered to, he said he did not want anything more to do with Jessica, because he could not help her.[203] The applicant denied he ever thought to take the law into his own hands.[204]
[203] T762; 697.
[204] T762-763; 772-773.
The applicant gave evidence that he was fearful of the deceased based on their prior altercations. He said that the deceased had previously threatened him with a knife and a shiv and claimed that he had reported this incident to officer Pichl.[205] He said that during a period the deceased was in prison,[206] he and Jessica had argued about the deceased and they had spat at one another, following which Jessica had said “my old man’s going to murder you when he gets out [of prison]”.[207] The applicant’s evidence was that from the time he heard the deceased would be moving back with Jessica, he did not feel safe.[208]
[205] T690-694; T760-761.
[206] Agreed facts 25 and 26 of P20.
[207] T699-T700.
[208] T700.
The applicant’s evidence was that after work on the day of the fatal stabbing he had been drinking cider.[209] He left his home to obtain cannabis to help him get to sleep due to his anxiety about the deceased.[210] He had no idea where the deceased was. He said he went to get cannabis from a friend, Shane, who he believed was at a house which was near the intersection of Lake Avenue and Bice Street.[211] He said that the route he planned to take from his house was:[212]
“left onto Nookamka, approaching Lake Avenue, left up to Bice Street and then right onto Bice Street and the house I was going to No. 17 I believe is just up a few houses up on the left next to an alleyway.”
[209] T702.
[210] T704.
[211] Refer T703.
[212] T705.
He said he took the large “very scary” knife with him as a deterrent and as “back up”[213], “to defend myself.”[214]
[213] T704.
[214] T710.
He said he walked quietly down the footpath[215] past Jessica’s house when he saw a silhouetted figure which he recognised as the deceased. He retreated onto the road and the deceased came out of his home.[216] The applicant panicked and decided to stand in the middle of the road.[217] He shouted out abuse to attract as much attention to himself as possible.[218] He was shouting whatever came to him and was not concerned if it annoyed the deceased.[219]
[215] T743.
[216] T705-706.
[217] T706.
[218] T710; 715.
[219] T710.
The applicant said that the deceased taunted him with the metal rod. He said that he did not feel he could run away because the deceased could throw the rod straight through the applicant and “spear” him.[220] The applicant said that he was too scared to turn his back for a moment and he produced the knife to warn the deceased off.[221] The applicant accepted that the deceased wanted him to put the knife down and fight him like a man.[222] He agreed he said to the deceased, “I cannot fight you like a man, because you’re not a man. You bash women.”[223]
[220] T711.
[221] T708.
[222] T713.
[223] T713.
The applicant admitted that at one point the deceased went back inside and things calmed down for a moment, but his evidence was that it did not occur to him at the time that that was his opportunity to flee.[224] He conceded that in the past he had successfully run away from the deceased when he had threatened him.[225]
[224] T751-752.
[225] T759-760.
The applicant agreed that he approached Lillian and asked if she had any marijuana.[226] He still had his knife in his hand. Lillian asked for the knife. He refused to give it to her but said he would put it in his bag.[227] He said that he thought he had better wait for police and thought he could smoke a cone while he waited.[228] He agreed that once the deceased had gone inside, someone said “cocksucker” before the deceased returned. In cross-examination he conceded he could have said this but he did not believe he did so.[229]
[226] T715.
[227] T716.
[228] T755.
[229] T753-754.
The applicant conceded that there were points during the altercation where the deceased may have been unarmed.[230]
[230] T715.
In respect of the stabbing itself, the applicant said that the deceased ran at him and started hitting him with the pole.[231] The applicant said that he held the knife defensively.[232] He said that he panicked, that it was like the deceased “had called my bluff.”[233] The applicant said this was not about retaliation.[234] He said he had his reusable shopping bag in his hand, which he had used to carry the knife, and swung that at the deceased to keep the deceased away. The applicant said that the handle of the bag wrapped around the pole and due to the momentum, the applicant came to be in possession of the knife and the pole. The bag pinned his fingers to the pole. The applicant said that the deceased was trying to pull the pole out of his hand and they were both stumbling around.[235] The applicant said he lost balance, put the knife up in front of him and tried to correct his balance by stepping forward.[236] He then noticed that the deceased was bent forward and he realised that he had made contact with him.[237]
[231] T718.
[232] T721.
[233] T745.
[234] T766.
[235] T719.
[236] T720.
[237] T722.
The applicant said it all happened very quickly, and that all he had been trying to do was regain his balance, return to the defensive position, and retreat.[238] He said that he must have accidentally stabbed the deceased, although he did not realise that immediately. He saw the deceased grab his side, walk backwards a few steps, turn around and walk towards the alleyway.[239] He said he figured that he had just “cut him a little bit”.[240] He maintained he never saw the knife go in.[241]
[238] T721; 725-726.
[239] T721.
[240] T722.
[241] T771.
The applicant’s evidence was that at no point, ever, did he wish to harm[242] or hurt[243] the deceased in any way. He acknowledged he would have known at the time that a stab to the torso would cause really serious harm.[244]
[242] T724-T725.
[243] T755-756.
[244] T776.
At the scene, the applicant described to police officers how he had stabbed the deceased.[245] The applicant told police that the deceased had a metal pole with a hook on it and he was swinging at him in Jessica’s front yard. He said the deceased threatened to spear him with it. The applicant told police he only wanted to defend himself. He said he backed off as many times as he could.
[245] Exhibit P18 and P19.
The applicant conceded in cross-examination that while he claimed to have been anxious about the deceased[246] and scared to even leave the house[247], he would not describe himself as “consumed with worry” about the deceased, and although he was concerned he could come out of anywhere at any time, [248] he convinced himself he was being silly about that.[249] He conceded that on the night of the alleged offending he decided to walk past Jessica’s house next door where he thought the deceased might be, even though he did not need to walk past that house to get to where he was going.[250] He acknowledged that with the number of alleyways in the area, there were other routes, but he said it would have taken a lot longer and it did not make sense for him to do that.[251] He said he had told himself that he was being silly about worrying about the deceased, but he took the knife as backup.[252]
[246] T703.
[247] T703.
[248] T743.
[249] T742.
[250] T741-742.
[251] T742.
[252] T743.
In cross-examination the applicant said that he would not describe the action which caused the fatal injury as “a lunge”, and said that when he said that to police at the scene, that was “an unfortunate choice of words…a poor choice of words at a stressful time.”[253] He agreed his account was that this was just a “terrible unfortunate accident.”[254] He said that he was immediately concerned for the deceased but also for himself and that he wanted to establish or explain that it was an accident immediately. When asked to explain why he did not tell police it was an accident, he said his choice of words was not wise.[255]
[253] T726; 736-738.
[254] T726.
[255] T727.
In cross-examination the applicant agreed that he had claimed self-defence from the beginning.[256] He agreed that his understanding of the law of self-defence was better at the time of giving evidence than when he spoke to police on the night of the incident, but he claimed he did not have a particular belief about the law of self-defence, and denied ever having said anything like “if someone took the first swing, they’d be gone.”[257] He said he had no reason to care about self-defence and just never thought about it.[258] He said the detailed account he gave to police about the stabbing action, which in fact accorded with the expert pathologist’s evidence as to the path of the wound,[259] was not actually a description of how he had stabbed the deceased and could have been completely wrong because he did not know the angle of the injury.[260]
[256] T728.
[257] T731-732.
[258] T733.
[259] T313-314.
[260] T739-741.
In cross-examination the applicant maintained that although the deceased’s choice of weapon was a pole and that on the night of the altercation the deceased never produced a knife,[261] he was scared that the deceased could have had a knife on him and was scared that he was going to stab him.[262] He said that he did not mention to police on the night anything about being scared of the deceased having a knife because he did not feel it was appropriate at the time.[263] The applicant agreed that he was the main person shouting and was much louder than the deceased during the altercation, but said that was a “bluff”.[264] He said that he was not calling out things calculated to make the deceased angry and did not even notice if the deceased was getting increasingly angry.[265] He agreed that he had no reason to believe that the deceased was a paedophile, despite using that term in his taunts.[266] He said that while he was scared, shouting for attention, wanting help and in need of safety, it never occurred to him to shout out “help”.[267] He said that while he wanted the police, it never occurred to him to shout out “call police”.[268] He said it never occurred to him to walk backwards and disappear into the dark.[269]
[261] T734.
[262] T374-735.
[263] T736.
[264] T749; 745.
[265] T751.
[266] T756-757.
[267] T747-748.
[268] T748.
[269] T749.
In cross-examination the applicant conceded he was angry but said only moderately so,[270] that he was not in a rage, that his anger was not in any way out of control,[271] and that he was only angry because “Danny was a threat to me”.[272]
[270] T746-747.
[271] T751.
[272] T747.
Ground 3: failure to leave provocation to the jury
At trial there was discussion between counsel and the trial judge as to whether provocation should be left to the jury. Counsel for the applicant opposed that course. That occurred in a context where the contest at trial was whether the prosecution had proved that the stab wound was a deliberate rather than an accidental act and whether the applicant was acting in self-defence in inflicting the wound. Prosecuting counsel also opposed leaving provocation to the jury. The trial judge declined to do so.
The applicant submits that, notwithstanding the position adopted by him at trial, the judge was under a duty to direct the jury as to all available defences on the evidence. That duty extends to directing a jury as to provocation, notwithstanding that the partial defence is expressly eschewed by an accused and may be inherently inconsistent with the primary defence adopted by an accused. That duty requires the trial judge to direct as to provocation in all cases where, on the version of events most favourable to the accused, a jury acting reasonably might fail to be satisfied beyond reasonable doubt that the killing was unprovoked in the relevant sense.
The applicant submits that on the version of events most favourable to him, the evidence sufficiently raised the issue of provocation such that it should have been left to the jury.
The applicant submits that in assessing whether the evidence was sufficient to require provocation to be left to the jury, consideration had to be given to personal history and attributes of the applicant in determining the nature, extent and gravity of the provocative conduct. Having assessed the gravity of the provocation by reference to such matters, it is then necessary to ask whether provocation of that degree could cause an ordinary person to lose self-control and form an intention to kill or inflict grievous bodily harm.
The applicant submits that on the evidence it was possible the deceased’s conduct was capable of causing an ordinary person with the applicant’s history and attributes to lose self-control and there was evidence that raised the possibility of a loss of self‑control.
The applicant submits the evidence indicated he is a man who is emotionally or psychologically vulnerable. He suffers from anxiety and depression and resorted to heavy use of alcohol following the death of his partner in 2011. Further, the nature of the relationship between the applicant and the deceased had been volatile, hostile and marred by considerable animus, escalating in the weeks leading up to the stabbing. On the applicant’s evidence on at least one occasion the deceased had threatened him with a knife and a shiv. Some time in 2016 the applicant had an argument with Jessica during which they spat at each other and she said the deceased was going to murder the applicant when he was released from gaol. The deceased was released from gaol in early January 2017. This served to heighten the applicant’s sense of anxiety about the deceased.
The applicant submits that the evidence raised the possibility that the deceased’s conduct was capable of causing an ordinary person with the applicant’s history and attributes to lose self-control. The applicant’s evidence was that on the night of 1 February 2017 he said he was feeling panicked and fearful in reaction to the verbal abuse directed at him by the deceased as he walked past 126 Nookamka Street. The deceased was jumping up and down the road ready to fight the applicant. The deceased was taunting the applicant. He urged the applicant to drop the knife and fight him like a man. The situation was aggravated by comments made by Jessica encouraging the deceased to kill the applicant, and by her throwing sticks and rocks in his direction.
The applicant submits that there was evidence of a loss of self-control by him on 1 February 2017. The fact of the applicant bringing a knife with him to the confrontation and brandishing it on the street is evidence of a possible loss of self‑control. Lillian gave evidence that while on the road the applicant was “going crazy”.[273] The applicant submits that the change in the attitude of Jessica towards him might also provide a basis for inferring a loss of self-control by him due to her behaviour on the night. The applicant also submits that evidence pointing to a possible loss of self-control by him is found in his description that he was angry and scared during the confrontation with the deceased. Finally, the evidence that the deceased struck the applicant on three occasions with a pole might have caused him to lose self-control.
[273] T394.
Before a jury may return a verdict of manslaughter instead of murder on the basis of the doctrine of provocation, the jury must be satisfied that it is reasonably possible that:
(1)the accused killed the deceased as the result of a sudden and temporary loss of self-control caused by the provocative conduct on the part of the deceased (the subjective test); and
(2)the provocative conduct, measured in gravity by reference to the personal situation of the accused, could have caused an ordinary person to form an intention to kill or inflict grievous bodily harm and to act on that intention, as the accused did, so as to give effect to it (the objective test).[274]
[274] Masciantonio v The Queen [1995] HCA 67, (1995) 183 CLR 58 at 69-71.
The question for the trial judge in considering whether to leave provocation to the jury depends on whether there is evidence which, if believed, might reasonably have led a jury to return a verdict of manslaughter on the ground of provocation.[275] It is a question of law.[276] Provocation should be left to the jury whether the issue has been raised at the trial by the defence and even where the defence opposes that course, if there is evidence sufficient for it to be left to the jury.[277]
[275] Van den Hoek v The Queen [1986] HCA 76, (1986) 161 CLR 158 at 162 and 169; Masciantonio v The Queen [1995] HCA 67, (1995) 183 CLR 58 at 67 and 71.
[276] Stingel v The Queen [1990] HCA 61, (1990) 171 CLR 312 at 333-334.
[277] [1986] HCA 76, (1986) 161 CLR 158.
In Masciantonio v The Queen,[278] the plurality said the test of whether a trial judge should leave provocation to the jury is whether, on the version of events most favourable to the accused which is suggested by material in the evidence, a jury acting reasonably might fail to be satisfied beyond reasonable doubt that the killing was unprovoked in the relevant sense.[279]
[278] [1995] HCA 67, (1995) 183 CLR 58 at 68.
[279] [1995] HCA 67, (1995) 183 CLR 58 at 67-68.
Put another way, did the evidence, taken at its most favourable to the applicant, disclose material upon which a reasonable jury, properly directed, might have a reasonable doubt on the question of provocation.[280]
[280] The Queen v R (1981) 28 SASR 321 per King CJ at 322.
In Lindsay v The Queen[281] the reasons of the plurality emphasise the High Court’s previous statement in Stingel v The Queen[282] about the limited scope of the threshold question whether the evidence is capable of constituting provocation and the need to exercise caution before declining to leave provocation to the jury. As they said, the trial judge and the appellate court have the task of fixing the boundaries of the minimum powers of self-control that must be observed before it is open to the jury to find that murder is reduced to manslaughter by reason of provocation. The touchstone for both the trial judge and the appellate court is whether a jury, properly instructed and acting reasonably, might fail to be satisfied beyond reasonable doubt that the killing was unprovoked in the relevant sense.[283] For the appeal court the determination of the question involves somewhat greater exactitude than the determination made by the trial judge.[284]
[281] [2015] HCA 16, (2015) 255 CLR 272.
[282] (1990) 171 CLR 312 at 333-334.
[283] [2015] HCA 16 at [26], (2015) 255 CLR 272 at 283.
[284] [2015] HCA 16 at [26], (2015) 255 CLR 272 at 283.
In Lindsay[285] French CJ, Kiefel, Bell and Keane JJ said:[286]
The determination of the threshold question requires the trial judge (and the appellate court) to consider the sufficiency of the evidence to allow that an ordinary person provoked to the degree the accused was provoked might form the intention to kill or to do grievous bodily harm and act upon that intention, as the accused did, so as to give effect to it.
[Citation omitted]
[285] [2015] HCA 16, (2015) 255 CLR 272.
[286] [2015] HCA 16 at [16], (2015) 255 CLR 272 at 279.
The Court went on to observe that there is a need to exercise caution before deciding to take the partial defence of provocation away from the jury. The need for that caution has particular force in a case where there is evidence capable of supporting the subjective limb of the partial defence.[287] Nonetheless, provocation should not be left to the jury where the trial judge is not satisfied that there is material in the evidence which sufficiently raises both the subjective and objective limbs of the partial defence. Whether the objective limb is satisfied is a question of opinion or evaluative fact.[288]
[287] [2015] HCA 16 at [38], (2015) 255 CLR 272 at 287.
[288] [2015] HCA 16 at [16], (2015) 255 CLR 272 at 279.
For the purpose of answering the threshold question, the subjective test requires that the evidence, taken at its most favourable to the applicant, discloses material in relation to which a jury, properly instructed and acting reasonably, could fail to be satisfied beyond reasonable doubt that the act of the applicant which resulted in the killing of the deceased was not the result of a sudden and temporary loss of self-control caused by provocative conduct on the part of the deceased.
Further, for the purpose of answering the threshold question, the objective test requires that the evidence, taken at its most favourable to the applicant, discloses material in relation to which a jury, properly instructed and acting reasonably, could fail to be satisfied beyond reasonable doubt that the applicant’s reaction to the conduct of the deceased, in forming an intention to kill or inflict grievous bodily harm and killing him, fell far below the minimum standard of the range of powers of self-control which must be attributed to any hypothetical ordinary 36-year old. In assessing this question the court must assess the gravity of the deceased’s provocative conduct from the viewpoint of the applicant taking into account his history and attributes.
It is not a fatal obstacle to a trial judge to leave provocation to the jury that the accused did not expressly say in evidence that he or she had lost the power of self-control. Even in the absence of such evidence from the accused, the judge must leave provocation to the jury if there is sufficient evidence which, if believed, might reasonably lead the jury to return a verdict of manslaughter on the ground of provocation.[289] If the evidence gives rise to an inference of a loss of self-control, that might provide a sufficient evidentiary basis for the defence to be left to the jury. That circumstance might arise particularly in cases where self-defence is raised. Because the admission of loss of self-control is bound to weaken, if not destroy, self-defence, the law does not place the accused in a dilemma. The absence of direct evidence of loss of self-control may be explicable when self-defence is an issue. However, in those circumstances, the jury can infer a loss of self-control in the absence of direct evidence.[290] The Director submits that does not render the absence of evidence of the loss of self-control irrelevant to the evaluation of whether there is sufficient evidence to leave the question of provocation to the jury. I do not accept that submission. It is inconsistent with the test for leaving provocation to the jury that the question is to be decided on the evidence that is most favourable to the accused. For that purpose the absence of direct evidence from the accused of a loss of self-control is intractably neutral. On the other hand, once the jury is charged with considering whether the prosecution has negatived provocation, I accept that where an accused has elected to give evidence, the absence of direct evidence of a loss of self-control by him or her could be relevant to the determination of that issue.
[289] [1986] HCA 76, (1986) 161 CLR 158 per Gibbs CJ, Wilson, Brennan and Deane JJ at 161-162 and Mason J at 169.
[290] [1986] HCA 76, (1986) 161 CLR 158 at 169.
The relevant version of the evidence which falls to be considered in determining whether as a matter of law, provocation was open is that version of the evidence, taking into account all of the evidence including that given by the applicant, which is most favourable to the applicant on the issue of provocation. Accordingly, the version to be considered may involve a combination of the evidence on the defence case and the prosecution case, including the undisputed evidence but excluding any disputed evidence which is unfavourable to the accused on the issue of provocation.
In deciding whether the trial judge erred in failing to leave provocation to the jury, it is necessary to identify what is said to be the provocative conduct of the deceased. I emphasise that what the Court is concerned with is the conduct of the deceased. The submissions of the applicant seek to place some reliance upon the conduct of Jessica Bridgland on the night of the stabbing. Her conduct cannot be material to whether provocation should have been left to the jury. It is only the conduct of the deceased that is relevant.
A consideration of the evidence indicates that, at its most favourable to the applicant, the evidence of the deceased’s conduct that could be characterised as provocative was his verbal abuse of the applicant on the street outside Jessica Bridgland’s residence; his taunting of the applicant to put down the knife and “fight like a man”; the removal of his shirt and his challenge to the applicant to stab him; his shaping up to fight; his arming himself with a rod and the threat to “spear” the applicant with it; and his attack on the applicant with a pole which he used to strike the applicant up to three times immediately prior to the applicant disarming him and inflicting the fatal stab wound.
It is necessary then to consider the sting of that conduct from the perspective of the applicant. That necessitates a consideration of the wider context in which the events of the night of 1 February 2017 occurred. That requires an evaluation of the evidence of the antecedent interactions between the applicant and the deceased.
In my view, that evidence demonstrates that there was a history of antipathy between them. There were occasions where they verbally abused each other. The applicant considered the deceased to be violent. The applicant gave evidence that on one occasion that antipathy had culminated in the deceased threatening the applicant with a knife and a shiv. However, that had not resulted in the deceased stabbing, striking or inflicting any injury on the applicant. The applicant gave evidence the deceased caused him anxiety and he did not feel safe in his presence. All this evidence informs the assessment of the gravity of the conduct of the deceased on the day of the stabbing which is said to be provocative. But it is notable that the evidence indicates much of the verbal abuse was hurled by the applicant at the deceased, the applicant was on medication for his anxiety and there was no evidence of any actual violence between them.
There was nothing in the evidence of the nature of their relationship which equates to the power dynamics, particular and individual frailties or cultural differences that the authorities have previously held relevant to an assessment of the alleged provocative conduct. For example, in Moffa v The Queen[291] the accused killed his wife after she told him she was leaving him and confronted him with her history of extramarital affairs, displaying photographs of her naked, and verbally abusing him. In The Queen v R[292] the accused had killed her husband in circumstances where he had been sexually abusing their children. In Van Den Hoek v The Queen[293] the accused had killed her estranged husband in circumstances where they had argued violently about divorce. In Masciantonio v The Queen[294] the accused had killed his son-in-law who had a history of violence directed towards the accused’s daughter, had caused financial difficulties in the marriage due to his excessive gambling and had recently left the daughter, taking property belonging to her. In Green v The Queen[295] the accused was a 22-year-old man with a special sensitivity to matters of sexual abuse who killed his 36-year-old male friend who made a sexual advance. In Lindsay[296] the accused, an Aboriginal man, killed a Caucasian man he had invited into his house who repeatedly propositioned the accused, in front of his de facto wife, including for paid homosexual sex, after the accused had made clear that such advances were unwelcome.
[291] (1977) 138 CLR 601.
[292] (1981) 28 SASR 321.
[293] (1986) 161 CLR 158.
[294] (1995) 183 CLR 58.
[295] (1997) 191 CLR 334.
[296] (2015) 255 CLR 272.
Further, the evidence of the relationship cannot be seen for the purposes of the objective test to diminish the power of self-control of the hypothetical ordinary person.[297]
[297] [1990] HCA 61, (1990) 171 CLR 312 at 335-336.
The applicant submits that the verbal abuse hurled at him by the deceased is provocative in its nature because it was emasculating, accusing the applicant of cowardice. However, whether that evidence provides a sufficient basis to leave provocation to the jury, either alone or in combination with the other factors I have identified which might constitute provocation, depends upon the particular sting those words carry for the applicant. On this occasion, as on previous occasions, abuse was being hurled in both directions. The applicant called the deceased a “cock-sucker” and a “paedophile”. When the deceased told the applicant to “fight like a man” the applicant responded by saying “I cannot fight you like a man because you’re not a man”.[298] There is no basis upon which the jury could consider that the verbal abuse hurled at the applicant by the deceased would occasion any great offence. In any event, the issues are first whether there is sufficient evidence that the insults hurled by the deceased at the applicant and his taunting of him, the threat to spear him with the rod and the deceased’s actions in striking the applicant up to three times with the pole could have resulted in a momentary loss of self‑control, and second whether that conduct could have been sufficient to cause the ordinary hypothetical 36-year-old man to momentarily lose self-control to the extent of forming an intention to inflict grievous bodily harm or kill the deceased and to act upon that intention.
[298] 749-750.
For the purpose of considering the subjective limb it can be accepted that the evidence leaves open a conclusion that during the confrontation on the roadway, the applicant and the deceased both were emotionally agitated. However, both exercised physical restraint despite ample opportunity to harm each other until the ultimate culmination of the confrontation. Notwithstanding the attack on the applicant by the deceased with the pole, the evidence is the applicant was uninjured. The applicant’s response was to inflict a single stab wound. There was no evidence of a frenzied attack involving multiple stab wounds evidencing a loss of self-control. Indeed the evidence was that the knife did not penetrate to its full depth but to between a third and a half of the blade length.[299] Only moderate force would have been required to inflict the wound. The applicant allowed the deceased to walk away. The applicant was not ranting or raving but simply remarked in a defiant fashion “come at me you cunt”.[300] The applicant did not threaten or harm any other person, notwithstanding the evidence that Jessica Bridgland had been involved in the altercation throwing rocks and sticks at him.[301] Immediately after the stabbing the applicant returned to his house, retrieved his phone and telephoned triple-0 within three minutes of the infliction of the fatal wound, calmly explaining his conduct.[302] The tape recording of his phone call provides no evidence of a person who has lost self-control. The applicant may not have been in control of the situation on the roadway but that does not equate to a loss of self-control. To my mind that evidence does not provide a sufficient basis to leave to the jury the question whether there is evidence of a loss of self-control by the applicant.
[299] T310.
[300] T775.
[301] T415.
[302] Exhibit P16.
On the other hand there was evidence from Lillian Bridgland in which she described seeing the applicant on the roadway “going crazy”.[303] While that conclusion lacks obvious support in her description of the applicant’s actual behaviour while on the roadway and in speaking directly with her, I am conscious of the need for caution in applying the threshold test. I accept that this is some evidence upon which a jury could infer a momentary loss of self-control on the part of the applicant. Accordingly, I consider that there was some evidence from which the jury could infer the subjective limb arose on the evidence.
[303] T394.
That leaves consideration of whether there was a sufficient basis in the evidence to leave provocation to the jury on the objective limb. Again consideration of the objective limb must be undertaken with the caution to which the High Court refers in Lindsay, particularly where there is evidence capable of supporting the subjective limb. However it is the function of this Court, as it was the function of the trial judge, to fix the boundaries of the minimum powers of self‑control that must be observed before it is open to the jury to find that murder is reduced to manslaughter by reason of provocation. This is a question of opinion or evaluative fact. Implicit in the observations of the plurality in Lindsay[304] is a recognition that there will be circumstances where notwithstanding the existence of evidence capable of supporting the subjective limb, provocation should not be left to the jury. At its highest the deceased verbally abused the applicant in foul language that substantially matched the foul language the applicant hurled at the deceased. Each challenged the other’s manhood with taunts about fighting like a man. The deceased threatened to spear the applicant with a rod but abandoned the rod some minutes before the fatal wound was inflicted. The deceased struck the applicant with a pole, up to three times, but without the applicant suffering any injury. In any event, by the time the applicant stabbed the deceased the deceased had been disarmed.
[304] (2015) 255 CLR 272 at 287.
Considering all the evidence at its most favourable to the applicant, I do not consider that the evidence raised the issue of whether the ordinary hypothetical 36‑year‑old could have so lost self-control momentarily as a result of the provocative conduct to have formed an intention to inflict grievous bodily harm or kill and act upon that intention as the applicant did, so as to give effect to it.[305] The critical question is whether the jury might have entertained a reasonable doubt about whether the objective test was not satisfied having regard to the evidence. In my view no jury could have entertained such a reasonable doubt. While the evidence of the provocative conduct might have been sufficient to have caused the ordinary hypothetical 36-year-old momentarily to lose self-control such as to retaliate physically, I consider that it could not have satisfied the jury beyond reasonable doubt that that conduct could have so provoked the ordinary hypothetical 36-year-old to have formed an intention to inflict grievous bodily harm or kill the deceased and to act upon it.
[305] (2015) 255 CLR 272 at 279.
The requirement that the provocative conduct be of such a nature as to be sufficient to deprive the hypothetical ordinary person of the power of self-control imposes an objective threshold test. The rationale underlying the objective limb is to ensure that in the evaluation of the partial defence of provocation there is no fluctuating standard of self-control against which accused are measured. The governing principles are those of equality and individual responsibility, so that all persons are held to the same standard notwithstanding their distinctive personality traits and varying capacities to achieve the standard.[306]
[306] [1990] HCA 61, (1990) 171 CLR 312 at 324.
The assumption underlying the objective limb is not that to do an act which would otherwise be murder may be an ordinary reasonable reaction to a wrongful act or insult. The assumption is that a wrongful act or insult may be of such a nature as to be sufficient to provoke an ordinary person to lose his or her self‑control to an extent that he or she does the unreasonable and extraordinary, namely, an act which were it not for the provocation would constitute the crime of murder.[307]
[307] [1990] HCA 61, (1990) 171 CLR 312 at 329.
As the High Court said in Stingel:[308]
The principle of a equality before the law requires … that the differences between different classes or groups be reflected only in the limits within which a particular level of self‑control can be characterised as ordinary. The lowest level of self-control which falls within those limits or that range is required of all members of the community.
[308] [1990] HCA 61, (1990) 171 CLR 312 at 329.
In my view while the provocative conduct might have been capable of provoking the hypothetical ordinary person to some retaliation, it was not capable of provoking the hypothetical ordinary 36-year-old to form an intention to inflict grievous bodily harm or to kill and to act upon that intention. Allowing for the limited scope of the threshold question this is a case where no jury, properly instructed and acting reasonably, taking the evidence at its most favourable to the applicant, could fail to be satisfied beyond reasonable doubt that the conduct of the deceased was not of such a nature that it could or might deprive any hypothetical ordinary 36-year-old of the power of self-control to the extent that he would fatally stab the deceased. To put it in another way, no jury properly instructed and acting reasonably, could fail to be satisfied beyond reasonable doubt that the applicant’s reaction to the conduct of the deceased fell far below the minimum limits of the range of powers of self-control which is to be attributed to a hypothetical ordinary 36-year‑old. In those circumstances the judge did not err in declining to leave provocation to the jury.
I would dismiss this ground.
Directions on self-defence – grounds 4 and 1
It is convenient to deal with these grounds in the same order as the applicant. The applicant submits that the trial judge misdirected the jury as to self‑defence in two ways. First, by limiting the circumstances in which the jury would consider self-defence to where they had, by way of preliminary finding, concluded that the applicant was lying as to the primary defence of accident. Second, by introducing the concept of a “willing combatant” and directing the jury that, in effect, the applicant would be precluded from relying on self-defence if his initial plan was to draw the deceased into a fight. The applicant submits that the directions distorted the statutory test which the jury were obliged to apply under s 15(1) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA), namely, was the conduct to which the charge relates genuinely believed by the accused to be necessary and reasonable for a defensive purpose.
It is notable that with one exception, concerning whether the evidence left open whether the applicant willingly engaged in combat, the complaints now advanced by the applicant were not made at trial. This is despite the trial judge providing a written memorandum to counsel and discussing with counsel the directions on self-defence.
Appellate courts regard it of great significance in determining whether there is a risk of miscarriage of justice that counsel failed to object at trial. It points strongly to the conclusion that there was nothing in the trial to occasion a miscarriage of justice. As the High Court observed in Perara-Cathcart v The Queen:[309]
The absence of an application by counsel for the defence for a further direction affords some practical indication that the trial judge, whose task was to direct the jury only as to so much of the law as they needed to know to resolve the real issues in the case succeeded in that task.
[309] [2017] HCA 9 at [60], (2017) 260 CLR 595 at 619.
In considering the applicant’s complaint of a misdirection it is important to consider the summing up as a whole, in light of the issues raised at trial and the manner in which the trial was conducted.[310] This includes the addresses and the requests, if any, for redirection.[311]
[310] La Fontaine v The Queen [1976] HCA 52, (1976) 136 CLR 62 at 73, 78 and 91; Barker v The Queen [1983] HCA 18, (1983) 153 CLR 338 at 368-369; Zoneff v The Queen [2000] HCA 28 at [55], (2000) 200 CLR 234 at 256.
[311] Zoneff v The Queen [2000] HCA 28 at [55], (2000) 200 CLR 234 at 256.
The first complaint – ground 4
The following direction was given to the jury in the course of the judge’s summing up:
But ladies and gentlemen, if you did find beyond reasonable doubt that Miller deliberately stabbed Coombs, then even if you thought that Miller was lying to you about that, I am not saying that he is, but if that were a path you were taking, you would still have to consider the path of self-defence and it is still up to the prosecution to negate it beyond a reasonable doubt because they still have to get over that hurdle of element 4.
The applicant submits that the jury would have understood from this direction that self-defence only needed to be considered if an adverse finding had been made against the applicant and that this deflected the jury from the task of considering whether the prosecution had discharged its burden of disproving self-defence.
The direction is to be considered in context. The applicant gave evidence at his trial. His evidence was that the fatal act was not deliberate. He expressly stated that he had not intended to stab the deceased. Further, the direction is not to be read in isolation from the balance of the summing up. The jury having earlier been directed[312] that the onus of proving a deliberate act was upon the prosecution, and that the act had to be unlawful, the direction is conditioned by the premise: “if you did find beyond reasonable doubt that Miller deliberately stabbed Coombs”. It can be seen that the impugned direction which immediately follows is simply the logical consequence of the jury being satisfied beyond a reasonable doubt that the stabbing was not accidental but deliberate. In these circumstances the jury will have been satisfied that the applicant had lied in his evidence in that regard. It can be seen that the trial judge was intent on impressing on the jury that this finding did not exclude consideration of self-defence which had to be negatived by the prosecution. The direction was not only proper but it was favourable to the applicant. There was no risk of a miscarriage of justice.
[312] At summing up 7-10.
I would dismiss ground 4.
The willing combatant direction – ground 1
After referring to the prosecution theory that the applicant had set out to provoke a fight with the deceased, intending to use the knife to injure him under cover of such a fight and to justify whatever injuries he inflicted as self-defence, the judge reminded the jury that the prosecution bore the onus of proving such a theory beyond reasonable doubt, because it is the prosecution’s burden to disprove self-defence and not for the applicant to prove it. The judge then gave the impugned direction:
Now if you were to accept that the prosecution have proven that theory, that Miller was deliberately provoking a fight in circumstances where he positively wished to use the knife to injure under cover of such a fight, to justify those injuries as self-defence, if you were to accept that, then of course it would not be a case of self-defence at all because the first stage of consideration, as referred to in your memorandum, would be negated by the prosecution. The defence of self-defence has as its starting point a person who, not wanting to fight, is attacked or threatened with attack in a way leading him to genuinely believe that self-defence is necessary for his own protection from harm. Such circumstances do not include those where what is going on is really a fight in which the fighters have willingly joined or joined in. Whether such a fight is to carry on or settle a quarrel, or for some other reason, does not matter. In other words, defence means defence. A person who claims to have been acting in justifiable self-defence must have genuinely believed himself to be acting in defence. To engage willingly in combat is not acting in self-defence.
Plainly this direction was modelled on the reasons of Wells J in Morgan v Colman who said:[313]
Defence means defence; a person who claims to have been acting in justifiable self-defence must have acted, and believed himself to have been acting, in defence. To engage willingly in combat is not acting in self-defence.
[313] (1981) 27 SASR 334 at 336.
There are three limbs to the applicant’s complaint in relation to this direction. First is that the reference to the concept of a “willing combatant” risked distracting the jury from its task. That task is to consider whether the fatal act of stabbing the deceased was not defensive. Second, in any event, even if originally the applicant had been a “willing combatant” he might still have been acting in self-defence at the time the fatal stab wound was inflicted if that original willingness to engage in combat was no longer operative. The impugned direction failed to make this clear to the jury. Third, in any event, the evidence did not leave open a finding that the applicant was a “willing combatant”.
Section 15(1) of the CLCA provides:
(1) It is a defence to a charge of an offence if—
(a) the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose; …
…
(3) For the purposes of this section, a person acts for a defensive purpose if the person acts—
(a) in self defence …
This Court has held that s 15 of the CLCA does not alter the common law position that self-defence is only available to an accused who does not want to fight and not to an accused who is willing to engage in a fight if someone else starts it.[314] In R v Bridgland[315] Gray, Sulan and Bampton JJ cited with apparent approval the following observations of Priestley JA in R v Nguyen:[316]
[S]elf defence has as its starting point a person who, not wanting to fight, is attacked or threatened with attack in a way leading the person to believe self defence is necessary for the person’s own protection from harm. Such situations do not include those where what is going on is a fight which the fighters have willingly joined in, whether to carry on or settle a quarrel, or for some other reason. Once such a fight is under way, the person who has, ex hypothesi, got into it for reasons other than self-defence, may often, because of the nature of fighting, be suddenly faced with injury or death, and to prevent that, self defence in one sense will be necessary, which may lead to the injury or death of the opponent. That sort of self-defence, if it ends in the killing of the opponent, is not the sort of self-defence that the Crown must negative in showing (when the issue arises) that the killing had been unlawful. …
(Emphasis added)
[314] Jessen v Police [2011] SASC 209 at [24], (2011) 112 SASR 1 at 7.
[315] [2014] SASCFC 80.
[316] (1995) 36 NSWLR 347 at 407.
Their Honour’s said:[317]
On the appeal, the defendant contended that the Judge erred in holding that self defence was negated beyond reasonable doubt on account of the defendant having left a position of safety to advance to a position where trouble might arise. It was complained that the Judge elevated the proposition of the cases of Nguyen and Morgan v Colman to what was described as something tantamount to a rule of absolute application, as opposed to merely a relevant circumstance. It was further complained that the Judge was wrong to treat the defendant as a willing combatant or otherwise as an aggressor in the sense contemplated by the authorities. Attention was drawn to the observations of Wilson, Dawson and Toohey JJ in Zecevic:
... Where an accused person raising a plea of self-defence was the original aggressor and induced or provoked the assault against which he claims the right to defend himself, it will be for the jury to consider whether the original aggression had ceased so as to have enabled the accused to form a belief, upon reasonable grounds, that his actions were necessary in self-defence. For this purpose, it will be relevant to consider the extent to which the accused declined further conflict and quit the use of force or retreated from it, these being matters which may bear upon the nature of the occasion and the use which the accused made of it. Indeed, even in circumstances in which the accused was not the original aggressor, retreat in the face of a threat of violence before resort to force may be relevant to the belief of the accused or the reasonableness of the grounds upon which the accused based his belief. There is, however, no longer any rule that the accused must have retreated as far as possible before attempting to defend himself. It is a circumstance to be considered with all the others in determining whether the accused believed upon reasonable grounds that what he did was necessary in self-defence: Howe, per Dixon C.J.; Viro, per Gibbs J.
[Footnotes removed.]
Counsel for the defendant submitted that, in accordance with the above extract from Zecevic, it was necessary for the Judge to determine whether circumstances had changed in the split second before the defendant struck the blow to the deceased. It was argued that the defendant was reacting to a blow being struck in his direction by the deceased, that the reaction was instinctive and led to the throwing of the fatal punch in return. In our view, on the facts as found by the Judge and having viewed the video we consider that the submission is somewhat artificial in the circumstances of this case. This was a case of the defendant voluntarily entering into a fight and becoming a participant in that fight.
[317] [2014] SASCFC 80 at [28]-[29].
An accused is not acting defensively if they do not genuinely believe conduct to which the charge relates to be necessary and reasonable for a defensive purpose. That genuine belief will not exist if a person was the initial aggressor or engaged willingly in combat unless there is a reasonable possibility that incident had come to an end and a new incident had commenced.
The applicant’s complaint that the direction that to engage willingly in combat is not acting in self-defence might have distracted the jury from its task has to be considered in the light of the whole of the summing up and the written memorandum provided to the jury by the trial judge.
There is no reason to consider that the jury would have thought that so long as the applicant had been the aggressor at some point during the incident, there was no need to consider whether that continued to be the case at the time that the fatal wound was inflicted. The terms of the summing up and the memorandum make clear that the relevant conduct was the stabbing. This was first emphasised in the elements of the offence set out for the jury at the very beginning of the memorandum which was provided at an early stage in the summing up.[318] The act the subject of the charge was accurately characterised at the “act of stabbing” and that the prosecution had to prove “that act” was not performed in self-defence. The trial judge directed the jury as follows:
The first stage of consideration of self-defence: the question to be addressed at this stage is “Has the prosecution proven beyond reasonable doubt that the accused did not genuinely believe that the conduct to which the charge relates was necessary and reasonable to defend himself from Mr Coombs?”.
… This first stage deals with the factual circumstances existing when the deceased suffered the wound as the accused genuinely believed them to be.[319]
[318] Summing up 6-7.
[319] Summing up 23.
The direction made clear to the jury that the question of whether self‑defence had been excluded as a reasonable possibility was to be considered at the time the fatal wound was inflicted.
There was no miscarriage of justice.
I would reject the first limb.
The judge in his summing up summarised the theory of the prosecution case as follows:
Turning first to the prosecution case. Mr Williams commenced his address by stating that the prosecution case is essentially that as at 1 February 2017, the accused intensely disliked Mr Coombs and wished to fight him and that on that day, 1 February, Mr Miller went out of his way to provoke a fight in circumstances where he positively wished to use the knife to injure Mr Coombs under cover of such a fight and to justify whatever injuries he inflicted upon Mr Coombs as self-defence.
The prosecution case was not that the applicant had entered into the confrontation with the deceased as a willing combatant. Rather it was that the applicant armed himself with a knife and proceeded to confront the deceased as part of a plan to use the knife to injure the deceased and to claim that this occurred as an act of self-defence under the cover of such a fight. The judge was instructing the jury that the prosecution had to prove this theory beyond reasonable doubt. It was no part of the theory that there was any break or interruption of the incident after which the applicant’s willingness to engage in combat ceased and he was thereafter engaged in an act of self-defence. The retreat of the deceased inside the house did not provide such an interruption because the applicant did not avail himself of the opportunity that this provided for him to retreat from the street into his own property and house. Accordingly, if the jury were satisfied, as they had to be given the direction, that the applicant went out of his way to provoke a fight in circumstances where he wanted to use the knife for a particular purpose there was no room for that incident to have come to an end, given his failure to take advantage of the interruption occasioned by the deceased retreating inside of his house. On the prosecution theory this did not amount to a change or interruption to the incident if the jury were satisfied that the applicant had provoked the fight for the particular purpose alleged by the prosecution. Accordingly the prosecution theory left no room for the transformation of the incident from one where the applicant was a willing combatant to one where he had ceased to be so and instead found himself acting defensively. The evidence did not leave open the existence of a break in the incident after the point at which the jury had concluded that the applicant had deliberately provoked a fight in circumstances where he positively wished to use the knife to injure the deceased under the cover of such a fight and to justify those injuries in self-defence. On the contrary the evidence from the Bridgland triple‑0 call was that once the deceased had gone inside the residence the applicant continued to shout abuse directed at him.[320] The jury must have accepted that the applicant had provoked the fight and he did nothing to bring it to a conclusion before inflicting the fatal wound. While the deceased did arm himself with a rod and a pole at various times none of that detracted from the evidence that the applicant remained outside and armed. The applicant failed to avail himself of the opportunity to retreat once that opportunity presented itself. The evidence of the applicant backing away from the deceased has to be considered in this context. Once he had disarmed the deceased the applicant did not flee the scene. Rather he inflicted the fatal wound.
[320] T412 and 788.
I do not accept the submission that the directions constructively withdrew self‑defence from the jury and diverted them from conducting the assessment that s 15(1) CLCA obliged them to conduct.
There was no miscarriage of justice.
I would reject the second limb.
Finally, I consider that there was evidence which left it open to the jury to find beyond reasonable doubt that the applicant had engaged willingly in combat. That evidence is:
1Threats made by the applicant that he would act violently towards the deceased if he threatened him or came on his property and that the applicant believed this would be justifiable self-defence if the deceased took the first swing;[321]
2The evidence that the altercation commenced once the applicant left his residence and ventured past the deceased’s house shortly after the deceased and Jessica Bridgland had returned to their home;[322]
3The evidence of Jessica Bridgland that it was the applicant who instigated the altercation on the roadway while armed with a knife;[323]
4The evidence that the applicant armed himself with a knife before walking out the front of the deceased’s residence;[324]
5The evidence of the applicant deliberately choosing to walk past the deceased’s house rather than adopting some different route which would have avoided doing so;[325]
6The evidence of the applicant’s verbal abuse and aggressive behaviour during the altercation, including the applicant’s references to “self-defence” and his reference to the deceased having previously pulled knives and weapons on him;[326]
7The failure of the applicant to avail himself of the opportunity to depart the scene when the deceased retreated inside his residence;[327]
8The applicant inflicting the fatal wound after he had disarmed the deceased;[328]
9The applicant’s stating immediately following the stabbing “come at me you cunt”.[329]
10The account given by the applicant on the triple-0 call three minutes after the stabbing where he says: “I lunged with the knife after I disarmed him.”[330]
[321] T327, 332, 350, 352 and 361.
[322] T553 and 604-606.
[323] T552-554 and 605-607.
[324] T705 and 743.
[325] T741-742.
[326] Exhibit P15, Q97, Q98 and Q103.
[327] Exhibit P15, Q61-62.
[328] T720.
[329] Exhibit P15, Q114.
[330] Exhibit P17, Q35.
There was no miscarriage of justice.
I reject the third limb.
Conclusion
I would grant permission to appeal but dismiss the appeal.
PARKER J: I would grant permission to appeal but dismiss the appeal. I agree with the reasons of Stanley J.
DOYLE J: I agree with the reasons of Stanley J. I would grant the application for permission to appeal, but dismiss the appeal.
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