R v Parsons
[2000] VSCA 15
•23 February 2000
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 113 of 1999
| THE QUEEN |
| v |
| ROBERT CLIVE PARSONS |
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JUDGES: | PHILLIPS, C.J., BROOKING, J.A. and HAMPEL, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 8 February 2000 | |
DATE OF JUDGMENT: | 23 February 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSCA 15 | |
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CRIMINAL LAW – Murder – Supposedly provocative words – Provocation rightly withdrawn – Murderous intent inevitably inferred from murderous acts.
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APPEARANCES: | Counsel | Solicitors |
For the Crown | Mr P.A. Coghlan, Q.C. | P.C. Woods, Solicitor for Public Prosecutions |
| For the Applicant | Mr O.P. Holdenson, Q.C. Mr H.N.G. Austin | Kenna Croxford & Co. |
PHILLIPS, C.J.:
I have had the advantage of reading the judgment of Brooking, J.A. in draft form. I agree with his conclusions as to each of the applications before the Court and I would subscribe to his reasons for reaching them. In the matter of the application touching sentence, I desire to add that the offence of the applicant, characterised as it was by pitiless violence inflicted on an innocent and defenceless woman litigant, ranks as one of the most heinous single murders I have encountered during my involvement with the criminal law.
On the aspect of remorse, the applicant’s resourceful senior counsel on the plea was reduced to saying no more than:
“As far as the question of remorse and the impact that that has, that is a matter of Your Honour to assess on the evidence that is available to you.” (587)
The psychologist called on the plea simply stated as to the applicant:
“He readily conceded for the first few months of his incarceration, there wasn’t a great deal of remorse…” (600)
The learned sentencing judge found a total absence of remorse and that finding has not been subject to challenge. In conceding on the plea that the imposition of the maximum penalty was appropriate, the applicant’s counsel accepted that
“The imposition of a maximum term, it would mark the community disapproval for this type of offence…” (617)
The applicant’s age was, of course, of importance. His Honour noted it and I can find no evidence on the face of the sentence – particularly the non-parole period – that he did not accord it proper weight. In my opinion, the period fixed was in range.
BROOKING, J. A.:
Between 1983 and 1992 Robert Parsons lived with his de facto wife Angela. She changed her name to his and bore him two children. They separated in 1992 and the children were in her custody from then on, although he had regular access to them. For much of 1997 Angela Parsons tried without success to obtain maintenance payments from Robert Parsons to help her support their two children. She took many steps, both in the Family Court and by applying to the Child Support Agency. Parsons resisted these, saying that he was a poor man. In fact, even on his own subsequent and reluctant admission, he was worth about $1 million. In December 1997, after many unsuccessful attempts by Angela to compel payment of child maintenance, the parties came before the Dandenong Family Court, and the father was faced with an application for an interim order that he pay about $47,000 into a trust account as security for the payments he might ultimately be ordered to make for the support of his children. He had paid nothing for many months and was determined to pay nothing. He had buried $400,000 in cash underneath the wood heap in order to conceal his assets, having sworn that he had only $300 in cash. Angela's solicitor was trying to get discovery of documents from him with a view to showing that there must be hidden assets. When the hearing in the Family Court was broken off for lunch on 10 December Parsons thought that the case was not going well for him. No-one would suggest that Parsons was not in a state of high emotion during that adjournment. As Angela was walking back to court along the footpath not far from the Family Court building, he armed himself with a long-bladed "Wiltshire Stay Sharp" knife which, housed in a sheath, he had brought to the scene in his car. He ran across the road, seized her and stabbed her 48 times. There were 41 wounds to the neck and upper body, eight of which went into the heart or its surrounds. There were numerous wounds to the neck, a number of them "through and through" injuries, running right through the throat and coming out the other side. The photographs used by the pathologist to describe the injuries show most graphically the nature and extent of the attack.
Parsons was of course charged with murder. He contested the committal and pleaded not guilty at his trial, which began with legal argument on 7 May 1999 and continued until the verdict of guilty on 18 May. On 24 May he was sentenced to life imprisonment with a non-parole period of 25 years. Both conviction and sentence are now the subject of applications for leave to appeal.
I may say at the outset that this was an open and shut case of murder. If there was ever any doubt about this, it had disappeared once all the evidence was in. All that was lacking was an explicit confession. The applicant declined to be formally interviewed by the police. At trial it was admitted that he had killed the woman by stabbing her and his counsel urged the jury to find him guilty of manslaughter by unlawful and dangerous act. Thus it was conceded by counsel that death was caused by a deliberate attack. The defence reply to the Crown prosecutor's opening was in terms which must have left the jury completely in the dark as to what the defence was. At the "Pegasus" preliminary hearing the accused's counsel had described the issues as "(i) automatism; (ii) provocation", but the issue of automatism seems to have been disclaimed by the defence shortly after the trial began. That left provocation, and in the discussion which preceded the prosecutor's opening senior counsel for the defence made it clear that he would be contending that the killing had been provoked and gave the impression that he would not be raising any other issue. The judge ultimately ruled, once all the evidence was in, that it did not raise any issue as to provocation and the applicant's counsel then went to the jury on one issue only, that of specific intent, urging them to return a verdict of manslaughter on the basis of an attack causing death where the existence of murderous intent was a matter of reasonable doubt.
It was idle to suggest at the trial, and it is idle to suggest now, that the jury should have been directed to consider provocation. I also think that no reasonable jury properly instructed could have entertained a reasonable doubt about murderous intent, although I should add that this question is not directly raised by any ground of appeal. Counsel appearing for the applicant at the trial were called upon to make bricks in the complete absence of straw, and so we have, for example, provocation being put forward to the judge as the real issue but not being mentioned to the jury in the defence reply to the prosecutor's opening and the spectacle of a defence final address where the only issue raised was that of murderous intent and the knife was not once mentioned.
As regards provocation (the subject of ground 1), it is tempting to say no more than that the ground is manifestly untenable, notwithstanding the devotion of six to seven pages to it in the applicant's outline of submissions, the lengthy oral argument and the citation by his counsel of nine or ten authorities. But to dispose of arguments so bluntly and briefly is not the modern way and I shall give reasons for my conclusion that the judge was right in refusing to leave provocation to the jury. To do this it would be sufficient to refer to the legal test and to the evidence relied on, for once this was done it would be plain beyond argument that the evidence fell well short of what was necessary. I shall go a little further than this.
Provocation should be withdrawn from the jury where no reasonable jury, properly instructed and having regard to the version of events most favourable to the accused which is suggested by material in the evidence, could have failed to be satisfied beyond reasonable doubt that the killing was unprovoked in the relevant sense. As regards the relevant sense, the question is whether the suggested provocation could have led an ordinary person to lose self-control and to form an intention to kill or do grievous bodily harm and to act upon that intention, as the accused did, so as to give effect to it. The suggested provocation is to be measured in gravity by reference to the personal situation of the accused. It is the nature and extent – the kind and degree – of the reaction which could be caused in an ordinary person by the provocation which is significant, rather than the duration or precise physical form of the reaction. In considering that matter, the question whether an ordinary person could form an intention to kill or do grievous bodily harm is of greater significance than the question whether an ordinary person could adopt the means actually adopted to carry out the intention. These propositions can all be derived from Masciantonio v. R.[1].
[1](1995) 183 C.L.R. 58
The applicant's written submission contended that there was evidence of the following facts:
"(a) the Applicant very much loved his children;
(b) the Applicant was very protective toward his children;
(c)the Applicant had had much access with his children, both weekly and during holidays, for a considerable period of time;
(d)the Applicant was concerned that the deceased was not sufficiently concerned for the safety and well-being of his daughter Jessica;
(e)the deceased unilaterally imposed a reduction in/upon the amount of access the Applicant had with his children;
(f)the personality of the deceased had changed in about mid-1996;
(g)the deceased instituted proceedings in the Family Court seeking orders which would reduce the amount of access the Applicant had with his children;
(h)the Applicant became very stressed about both the reduced and proposed reduction in the access which the Applicant had with his children;
(i)the deceased, at a joint conciliation meeting at the Dandenong Family Court with Mr Munro, rejected a proposal whereby the Applicant would have week-about access with his children;
(j)the deceased was engaged in a sexual relationship with the solicitor acting for her in the proceedings in the Family Court;
(k)the Applicant was not satisfied with the conduct of the solicitors engaged by him to act on his behalf in the proceedings in the Family Court and then represented himself;
(l)Miss Gibbons, the Family Court counsellor, had wrongly prevented the Applicant from taking notes at the sessions;
(m)the Applicant thought he would 'los[e] the kids';
(n)the Applicant 'knew' that the/an issue to be determined in the proceeding in the Family Court on 8 December was his access to his children;
(o)the Applicant found the proceedings in and at the Family Court 'very stressful';
(p)the Applicant did not get on well with the solicitor acting for the deceased;
(q)the Applicant did not feel at ease with the Judicial Registrar;
(r)the Applicant got the impression that the deceased was indicating to him that '[they had got him and he was going to lose the kids and she could do whatever she wanted to do and there was nothing he could do about it]';
(s)the deceased had not produced documents as required by the subpoena issued by the Applicant and, as a consequence, the deceased was concealing her assets from the Family Court;
(t)the deceased and her solicitor were not being frank with and had lied to the Family Court;
(u)the Applicant was not being treated fairly at the Court;
(v)the Applicant, by reason of the manner in which the Judicial Registrar and the solicitor for the deceased were conducting themselves, felt that he would not get justice;
(w)the deceased, in the street outside the Dandenong Family Court on 10 December, had smiled at the Applicant, yelled out to him, 'We have got you now, you bastard', put her head back and laughed, thereby 'saying, we have got you, I can do whatever I like with [your] kids, I can put [your] kids at risk and there is not a thing you can do about it, because I have got the law on my side'; and
(x)the deceased, when she did what she did as set out in the preceding para., did so knowing of the state of the Applicant."
If only in the interests of fairness, I should point out that there was no evidence of the sexual relationship alleged in paragraph (j), apart from an admission attributed by the applicant to the victim, and that at the trial the applicant's counsel expressly conceded that there was no such relationship. Mr Holdenson asked us to treat the paragraph as if it began "the deceased said that she was engaged". Mr Holdenson also said that paragraph (u) should be treated as if it run "the Applicant considered that he was not being treated fairly at the Court". As regards paragraph (r), this piece of evidence, given by the accused, is merely evidence of his alleged state of mind and adds nothing whatever to the evidence of what was said or done by the deceased or anyone acting on her behalf. Something must also be said about paragraph (w). The words attributed to the deceased in this ("we have got you now, you bastard"), and for that matter the suggestion that the deceased said anything at all shortly before she was stabbed to death, emerged only in the evidence given by the applicant. They had not been mentioned by his counsel in telling the judge what the provocative conduct on the day of the killing was, counsel referring only to the victim's having smirked and made a provocative gesture. The uttering of the words depended solely on the evidence of the applicant himself, none of the bystanders supporting his account. He had told the police only that she had laughed at him. Of course, despite these considerations, the evidence given by the applicant that these words were spoken was there for the consideration of the jury, and the present question must be considered on the version of events most favourable to the applicant. The important thing is that, as the word "thereby" in the outline of argument shows, the applicant did not swear that any of the words preceded by "thereby" were uttered by the victim. Those words, like the words in paragraph (r), might be described as an innuendo set up by him.
Not so many years ago the suggested provocation in this case might have been dismissed as "mere words" which were not "of a violently provocative nature": compare what was said by the Court in Moffa v. R.[2]. It was perhaps concern about the older authorities on the subject of "mere words" which led Mr Holdenson to assert in passing, as he did more than once, that the trial judge had accepted "that there was provocation" and that the only question was the correctness of his view on the result of applying the "ordinary person" test. The Crown has said nothing about the authorities dealing with "mere words" and seems to me to have proceeded as Ormiston, J.A. suggested was appropriate in R. v. Tuncay[3]. I doubt very much whether the words – and smile and laugh – attributed by the applicant to the victim in paragraph (w) could be viewed as "provocation" and so I doubt very much whether one is required to consider the possible response of the ordinary person. I am content, however, to deal with the case by simply asking whether the "provocation" alleged to have been offered by the victim just before she was killed could in the view of a reasonable jury have met the ordinary person test. I have no doubt that the answer is that it could not.
[2](1977) 138 C.L.R. 601
[3][1998] 2 V.R. 19
A number of comments might be made about the evidence relied on by Mr Holdenson (essentially that of his client) for the purposes of the 24 paragraphs lettered (a) to (x). A number of comments, additional to those I have already made, might be directed to the miscellany of supposed facts put forward in the 24 paragraphs. But it is enough to say that, even on the assumption that the jury, in placing the suggested provocation – the smile, and the words "we have got you now, you bastard", and the laugh – in context by reference to personal relationships and earlier events, so as to be able to assess the gravity of the provocation, were to have regard to those facts, they cannot have entertained a doubt. The applicant's experiences – real or imagined – in his dealings with the victim and her solicitor and those with whom he came into contact at the Family Court, when called in aid by him, could not possibly be said, even on the most favourable view of the evidence, to enable a reasonable jury to think it reasonably possible that an ordinary person in the position of the accused at the time of the killing might have been provoked into forming an intention to kill or do grievous bodily harm and into acting upon that intention, as the accused did, so as to give effect to it. No reasonable jury could have failed to be satisfied beyond reasonable doubt that the applicant's reaction to the victim's conduct fell below – indeed, fell a long, long way below – the minimum limits of the range of powers of self-control that must be attributed to the ordinary person. To hold that provocation arose in this case would be to encourage savagery at the expense of civilised behaviour. Many litigants, especially in the Family Court, are anxious, angry and disappointed. There is nothing out of the ordinary about the present case except the applicant's reaction.
The remaining three grounds that were argued were added by amendment long after verdict. They all relate to evidence led by the Crown in an attempt to show that Angela Parsons lived in fear of the applicant. This included evidence of her demeanour and statements she had made (in his absence) to persons called as witnesses of threats of violence he had made to her. To the extent that this evidence was of statements made by the deceased about threats made to her, it was accepted by the Crown at the trial that evidence of what the deceased had said was no evidence of the threats. There was in addition evidence of witnesses of things said to them by the applicant which was evidence that could be used to show that in the weeks preceding the killing the applicant had contemplated that he might kill his former de facto wife. I have already mentioned how at the outset of the trial senior counsel for the accused made it clear that he would be relying on provocation. At that stage there was a good deal of discussion about the reception of much evidence which the Crown proposed to call, including evidence that the victim was evidently in fear of the accused and had complained of threats of violence made by him. There was discussion of the cases dealing with what has often been called evidence of "relationship". Counsel for the applicant sought the exclusion of much evidence on the ground that it was inadmissible. In the alternative he appealed, as it seems, to the discretion to exclude evidence the prejudicial effect of which outweighs its probative force.
The judge gave a long ruling in which he excluded much of the evidence proposed to be led, including evidence that in 1990 the deceased, whose face was covered in bruises, had said that her injuries had been inflicted by the accused, evidence that this bruising had been photographed and evidence that the deceased had said that she had hidden the photographs and had asked her sister to retrieve them if anything should happen to her. There was also evidence of the finding of the photographs by the sister shortly after the death, they being hidden in the lining of one of the deceased's coats hanging in her son's wardrobe. All this evidence was excluded, and indeed the judge excluded all evidence of what is often loosely called "relationship" before the beginning of 1997. The evidence had in fact covered incidents over a very long period, going back from the time of the killing into the 1980's. His Honour referred to a number of authorities and in particular to what had been said by Gleeson, C.J. in R. v. Frawley[4] about the imprecision of the concept of relationship. His Honour said that in the instant case the evidence was relevant to the state of mind of the deceased having regard to the fact that provocation was alleged. It will be recalled that the applicant's counsel had told the judge that just before the killing the victim smirked and made a provocative gesture. The judge had, understandably, raised with counsel the apparent absence of sufficient evidence in the depositions to raise an issue as to provocation but had emphasised that he did not know what evidence might be led as part of the defence case. In his ruling on the reception of evidence, the judge said that evidence of the victim's state of mind in the sense of her fear of the accused bore on the probability of her having smirked at and otherwise provoked the accused just before she was killed. The judge held the evidence to be relevant and admissible and declined to exclude it in the exercise of his discretion except by confining the period to the year 1997 and excluding certain pieces of evidence even in relation to that year. The ruling made it clear that evidence that the victim had spoken of threats made to her by the accused would be received only as evidence of her fear of him, not as evidence of the fact of the threats.
[4](1993) 69 A.Crim.R. 208 at 220
When the Crown prosecutor came to open the case, shortly after the ruling on evidence, counsel for the accused seems to have made it plain that automatism would not be raised and that the only issue would be provocation. The judge had been told by the defence that the provocation offered by the victim was a smirk and a deliberately provocative gesture. Absurd as it may have been to suggest that in these circumstances an issue could arise as to provocation, I see no reason for differing from the judge's ruling that the evidence in question was relevant and ought not to be excluded.
When the applicant had given evidence and his case had been closed the judge ruled that provocation should not be left to the jury. An unsuccessful application was thereupon made by the applicant's counsel for the discharge of the jury, and the refusal of this application is the subject of ground 5. The basis of the application was that evidence had been led by the Crown of the fear which the victim had of the accused as bearing on the improbability of her having provoked him on the day of the killing and that, since provocation would not be left to the jury, the jury would now have before it evidence which would not have been received had counsel for the accused not told the judge, near the outset of the trial, that the issue – indeed the only issue – for the jury's consideration would be provocation. The judge had at the outset made it entirely clear to counsel that there was a very real danger that he would in due course withdraw provocation from the jury and had warned counsel of the possible forensic disadvantage of setting up provocation as the issue, only to have it withdrawn from the jury's consideration when all the evidence was in. Notwithstanding that warning counsel had chosen to proceed on the basis that he would, if permitted by the judge, be seeking to persuade the jury that the proper verdict was manslaughter by reason of provocation. No doubt he had taken up this position because of the extreme difficulty of finding any plausible defence to the charge of murder. In refusing the application for the discharge of the jury the judge said that he had warned the defence that he might very well, when both cases were closed, find it necessary to take provocation away from the jury and that what had happened was therefore not at all unexpected. He added that trials were not to be run sequentially, starting with one defence and if that was not available then going back and starting again with a new jury and running another defence: that was not how the system worked. With these remarks I entirely agree. The judge then said that the jury would not be discharged. The judge then added that he proposed to direct the jury that evidence of statements made by the deceased about her fears and threats made to her must be disregarded by them and that the reason was that the evidence was no longer relevant, since he had decided as a matter of law that provocation did not arise. This intimation was given shortly before the final addresses began.
Immediately after those addresses the judge raised with counsel for the accused the question what issues his address had been intended to raise having regard to a number of things said, including assertions that the accused had been out of touch with reality and had not known what he was doing. His Honour was even concerned that some of counsel's assertions, if accepted, might have been viewed as an attempt to raise insanity. In the end it became entirely clear in the discussion that counsel wished to be taken as having put to the jury that the only issue for their consideration was whether his client had intended to kill or do grievous bodily harm and as having asked the jury to find, specific intent not having been shown beyond reasonable doubt, that there had been a deliberate attack causing death which amounted to manslaughter by unlawful and dangerous act. The judge directed the jury accordingly.
The judge began his summing up late in the day and, having discharged the jury for the night, heard further submissions from counsel about what the jury should be told about the evidence of manifestations of fear by the victim, including her mention of threats. The Crown prosecutor then submitted that the evidence concerned was relevant having regard to the way in which the accused's case had been put in his counsel's final address, in that it had been there suggested that the jury, in considering specific intent, should have regard to the "stressors" to which the accused had been submitted, including in particular the words "we have got you now, you bastard". This meant, the prosecutor submitted, that the defence was still relying on the use of those words – not for the purposes of provocation but for the purposes of specific intent – so that evidence making it improbable that the deceased would have deliberately provoked the accused was still relevant. In response counsel for the accused did not suggest that the evidence could not be used for that purpose, arguing only that the jury should be told that evidence that the deceased had complained of threats was no evidence that the threats had been made. The judge ruled that he would direct the jury about the relevance of the evidence in accordance with the prosecutor's suggestion but also give the further direction suggested by counsel for the defence.
Grounds 4 and 6 complain respectively of the reception of and the directions given about the evidence of fear of the accused displayed by the victim by her demeanour, conduct and words, including what she had said about threats made to her by him. This is called "the relationship evidence" in the grounds and, while that expression is not a very helpful one, I shall use it for brevity. As I earlier mentioned, there was, in addition to the relationship evidence, direct evidence of things said by the applicant to the witness suggesting a desire to kill her or have her killed. I shall call this "the direct evidence". Neither ground 4 nor ground 6 as drawn is concerned with anything other than the relationship evidence. But the applicant's counsel's outline of submissions and oral argument treated the two grounds as extending also to the direct evidence, and this was done without objection from the Crown. The outline of submissions conveniently sets out the eight pieces of evidence referred to for the purposes of grounds 4 and 6. I speak of "pieces of evidence" although in the case of the first piece of evidence there was evidence to similar effect from four witnesses. With the omission of the supporting references to witnesses and the transcript, the outline of submissions sets out eight pieces of evidence:
"(i)On 4 February, 1997, the deceased had said that the Applicant had phoned her (the deceased) and threatened to kill her (the deceased) and, as a consequence, she (the deceased) was terrified;
(ii)Subsequent to the intervention order proceeding in the Prahran Magistrates' Court in March 1997, the deceased said that she was scared of the Applicant;
(iii)Throughout 1997, the deceased was scared of the Applicant;
(iv)Throughout 1997, the deceased was very frightened and very worried towards the Applicant;
(v)In November 1997, the Applicant had said that it would only cost $10,000 to have the deceased killed;
(vi)On 1 December, 1997, the Applicant had said that he (the Applicant) could kill the deceased;
(vii)On 4 December, 1997, the deceased said that if she [pursued] the proceeding in the Family Court, then the Applicant would kill her;
(viii)On 4 December, 1997, the Applicant had said that, if provoked, he would attack and, further, that he had in the past used physical violence."
Items (v), (vi) and (viii) stand out as being what I have called the direct evidence. The other five items are what the applicant's counsel has for brevity called the relationship evidence. I should mention that Mr Holdenson expressly disclaimed reliance on any of the cases dealing with what is still commonly called "relationship" in arguing grounds 4 and 6. He did not suggest that the hearsay rule had been infringed by the ruling that the jury could use evidence of what the deceased had said about threats or her own emotions or state of mind as evidence that she was in fact in fear of the accused. It will, I think, be sufficient if, without specifying which submissions were relied on in relation to each particular item of evidence, I say that he submitted in relation to items (i) to (v) that the evidence was too vague or imprecise, that the incident was too remote in point of time and that the prejudicial effect outweighed the probative value. I am not persuaded by any of these criticisms.
I have no doubt that the evidence in items (v) and (vi) was relevant and admissible and that there was no error in failing to exclude it in the exercise of the "prejudicial effect" discretion. The evidence bore on the probabilities with regard to what became ultimately the only issue in the case, murderous intent. Item (viii) was evidence given by Ms Gibbons, a counsellor at the Family Court. As a result of the judge's ruling given near the start of the trial, she gave some edited evidence in answer to leading questions. The unexpurgated version was that the applicant had said to her, in answer to a question whether there had ever been violence in the relationship with his former de facto wife, that he was a person who, if provoked, would attack and had gone on to say that he had once assaulted the captain and first mate on board a ship and been given a good behaviour bond and had on another occasion knocked a man unconscious with a blow. The edited version given in evidence was that Parsons had said that he was a person who, if provoked, would attack and that he had given instances which related, not to his relationship with his de facto wife, but to other people. Mr Holdenson submits that this evidence had no bearing on any issue and was simply evidence of a propensity to engage in violent conduct. It seems to me that even if it was open to the jury to conclude that the accused was by implication admitting that there had "been violence in the relationship", the admission was too vague to be capable of being used as bearing on any issue in the trial. The applicant was, as Mr Holdenson pointed out, cross-examined about what he had said to Ms Gibbons. On the other hand, the other direct evidence must be borne in mind and as to this it is important to consider to what extent it was challenged by the applicant, either through his counsel in cross-examination or in his own evidence. Having regard to the whole of the evidence and to what was put or not put by counsel for the accused in cross-examination, it seems to me that the evidence – and I mean of course the direct evidence – of what was said about killing would have entirely overshadowed the evidence of Ms Gibbons and the cross-examination arising from it. In my opinion the consequences of the reception of the inadmissible evidence given by Miss Gibbons are not in all the circumstances such as to bring the case within the primary provisions of s.568(1) of the Crimes Act 1958, quite apart from the proviso. If I were wrong in this view I would say that the circumstances which I have mentioned bring the case within the proviso, leaving aside altogether the quite separate point I shall mention later, namely, that conviction after a trial conducted without this imperfection was inevitable, having regard to the fact that no reasonable jury could entertain a reasonable doubt as to the sole issue raised by the accused. I would not uphold ground 4.
I turn now to ground 6, which concerns the directions given about the relationship evidence and has been treated as extending to the directions given about the direct evidence. Ground 6 as drawn makes only one specific complaint: that the judge failed to tell the jury that they could not reason that because the applicant had done something wrong on earlier occasions he was the kind of person who was likely to have murdered the victim. The short answer to this contention is that the judge twice directed the jury, in terms to which exception was not then and is not now taken, that the victim's evidence that the accused had threatened to kill her was only evidence of her state of mind or emotions and was no evidence that threats had been made. For the judge to have gone on to tell the jury what it is now said he should have told them would have been to undermine the direction which he did give and which has not been criticised. It would have been illogical to give the further instruction which it is now said should have been given. For to tell the jury that evidence of bad behaviour on previous occasions should not be used as evidence of propensity assumes that the victim's complaints to third persons were evidence of the accused's bad behaviour.
The main point argued under ground 6 appears not to have occurred to counsel until very shortly before the appeal was argued. It is not clearly taken even in the outline of submissions. The point is that the judge erred in directing the jury that not only the relationship evidence but also the direct evidence bore on the probabilities with regard to whether the victim would have deliberately offered provocation on the day she was killed. This is said to be because there was no evidence that she had been told of what the accused had said according to items (v), (vi) and (viii) in the eight items catalogued by Mr Holdenson. No exception was taken to the charge in this or indeed any other regard. The point is a bad one. In the two places where the judge told the jury that evidence of what had been said about threats bore on the probabilities as to how the victim would have behaved on the day she was killed he confined his direction to evidence of witnesses of what the deceased had said to them. In the result the jury were not told what use they could make of the direct evidence – items (v), (vi) and (viii). I have already said that item (viii) was in my view inadmissible. The jury should have been told that items (v) and (vi) could be used as evidence of motive and as available to assist them on the issue of murderous intent. They were not. This omission was very much in favour of the accused and one can well understand why his counsel failed to seek a further direction on the point. Nothing can be made of it now.
Grounds 4, 5 and 6 must fail.
The fact of the matter is that, given a trial free from anything now put forward by the applicant as an imperfection, a conviction was inevitable. Before a reasonable jury, provocation did not have a ghost of a chance and was rightly withdrawn by the judge. The applicant had no reasonable prospect of being acquitted of murder because of a doubt about murderous intent.
It has often been said of provocation that it carries the forensic disadvantage, if raised by an accused person, that it is something which needs to be considered only if all the other elements of murder have been established and (in an appropriate case) self-defence has been negatived. The case for the applicant did indeed undergo a sea change when he abandoned perforce provocation and moved from provocation to murderous intent as the only issue.
Unless there is something to suggest that the killer was, for one reason or another, in such a state as to make it unsafe to draw from acts the inference about intention which might otherwise be drawn, murderous intent can often be safely inferred from the acts causing death; to say this is to state the obvious. At times the inference will be inescapable, in the sense that a reasonable jury properly instructed would have to be satisfied beyond reasonable doubt of murderous intent. Provided that there is no reason to suppose that the killer may have been in a state which makes the drawing of inferences about intention more difficult, a court may be prepared to say that the stark facts of the killing itself not only permit but require the inference of the specific intent necessary for murder. A jury will not be directed to find that intent proved, but a strong comment on the facts may in a given case be appropriate, and an appellate court may in an appropriate case determine that the inevitability of a conclusion that death or at least grievous bodily harm was intended saves a verdict which would otherwise have had to be set aside for misdirection relating to that issue. A judge's refusal to leave manslaughter to the jury may give rise on appeal to argument about whether the jury were constrained to find murderous intent. This happened in Mohammed v. The State[5].
[5][1990] 2 A.C. 320
To blow a man's head off with a shotgun, having aimed at him from a distance of six feet, was said, not surprisingly, by the House of Lords in R. v. Moloney[6] to bespeak murderous intent without any room for doubt. And in the well-known case of R. v. Ryan and Walker[7] the Court of Criminal Appeal took the same view of the deliberate shooting of the warder with a rifle at a range somewhere between 20 and 60 feet. In Smyth[8] both the Court of Criminal Appeal and the High Court considered that no jury, properly directed, could reasonably refuse to infer an intention to inflict grievous bodily harm where several heavy blows were struck to the head with a Stillson wrench. Slitting the victim's throat was held to be conclusive of murderous intent on the facts in Mohammed v. The State. In R. v. Wardrope[9] Gray, J., with whose judgment Young, C.J. agreed, said at p.22 of his judgment,
[6][1985] A.C. 905 at 917 and 920
[7][1966] V.R. 553 at 556 and 565
[8](1956) 73 W.N.(N.S.W.) 539; (1957) 98 C.L.R. 163
[9]Victorian Court of Criminal Appeal, 20 August 1987, reported in (1987) 92 A.Crim.R. 198, but not on this point
"In this case it is an inescapable conclusion that the gaping incision to the deceased's neck was intentionally inflicted. It is an equally inescapable conclusion that it was the intention of the assailant to kill or do grievous bodily harm. In such circumstances there was, in my opinion, no evidential basis for leaving the issue of manslaughter to the jury."
The accused in Parker v. R.[10] punched the victim in the face many times, using a knuckle-duster, and then thrust a knife into his throat twice, first from one side and then from the other: the attack is described at 619-20, 623-4 and 636. Dixon, C.J. remarked at 624,
"Inasmuch as the evidence was that the prisoner had forced the knife into Kelly's neck and through his jugular vein, no question of intent to do grievous bodily harm arose, so far as I can see. He actually did it by the very act he consciously performed, that is to say, in itself it amounted to grievous bodily harm. It may be desirable to return to this question because counsel for the prisoner in supporting this application attacked the charge to the jury in respect of the intent to inflict grievous bodily harm."
At 631 his Honour said, "When the prisoner thrust his knife into each side of Dan Kelly's throat the absence of all intention of every kind to take life might be too hard to credit." Menzies, J., at 647, considered that the accused's attack left no room for doubting that he killed the deceased intentionally. According to Windeyer, J., at 649,
"A sane man who intentionally belabours another with a knuckle-duster while he is lying helpless on the ground and then stabs him with a knife, cutting his throat, cannot rationally be said not to have meant to do him grievous bodily harm at the least."
[10](1963) 111 C.L.R. 610
There was no lay or expert evidence suggesting that the applicant was suffering from any deficit, disorder or condition of any kind such as might make his acts an unreliable indication of his intention. There was no suggestion that he was affected by drugs or drink. His behaviour, including his words, during and shortly after the stabbing do not suggest that the ordinary inference should not be drawn from the deadly use made by him of his deadly weapon. He swore that on the day of the killing he was "very stressed out". He himself gave no evidence about his intention during the attack. He gave evidence but did not say, as has been so often said in unsworn statements or in evidence in the past, that he had no intention to kill or seriously injure. He claimed in his evidence to remember nothing after the victim smiled at him and yelled out to him until he found himself in the police station. He said he did not even remember running across the road. He swore that when she yelled out to him he "just lost it". At the end of his re-examination he said, "I killed her because she provoked me". He said that the knife came from under the seat in his vehicle.
The uncontradicted evidence was that he ran from his vehicle about 16 metres diagonally across the road to the victim. He held her with one arm and stabbed her with the other. He looked angry. Initially she was standing. A number of bystanders remonstrated with him; he stopped stabbing her and turned and looked at them and then continued his attack. When she was being stabbed in the neck the knife was going in up to the handle. Later she collapsed on the ground. He stabbed her again. He then walked around her, apparently to see if she was still moving, and then jabbed her in the leg with the knife, as if looking for any reaction. He then said, "I've finished with her now. You can call the police." He also said to the victim, "There, I've done it, you bitch" and "It's over now, bitch. It's over now." He pointed to the Family Court building and said, "That's the fucking Family Court" and said, "You can blame the Family Court for this." Asked by a constable why he had "done this", he replied, "She stole my kids." Then he said, "My name is Parsons. That is my wife." A little later, when told that the victim was dead, he said to the police, "I have been dead for six years." He added that she had laughed at him and that he had then decided to stab her and had done so. He said that things were going badly for him at the Court. Later he said, "I just saw red. I was in my car and she smiled at me. I just lost it. Sorry, I won't talk about it." He said a number of other things to the police by way of appropriate answers which tended strongly to suggest that he was well able to answer questions.
In all of this there is nothing to suggest that murderous intent should not be inferred from the murderous acts constituted by the use of the weapon to inflict the wounds which I have much earlier described, and much to strengthen that inference.
The conviction must stand, and it remains only to consider the sentence. The only ground argued is manifest excess. Below, applicant's counsel conceded that a life sentence was appropriate; my impression is that his very experienced counsel was mainly concerned about the possibility that the case would be seen as calling for life without possibility of parole. In fact, a long non-parole period – 25 years – was fixed. The applicant was 55 at the time of sentence; he was to be given the benefit of 530 days' pre-sentence detention. He had no previous convictions.
It is quite impossible to say it was not open to the judge to decide that this case called for a life sentence; indeed, I would have been surprised if the judge had not reached that conclusion. A non-parole period was fixed, a very long one – 25 years. Mr Holdenson rightly emphasised the age of his client. He observed that there was a real danger that the applicant would die in prison. But the case is an uncommonly bad one. In his reasons for sentence a number of adverse findings of fact were made by the judge. None of them has been challenged. I need not mention them all. His Honour recounted the victim's attempts during 1997 to get money out of the applicant to help her to support their children; his attempts to defeat or delay the proceedings; his determination to pay nothing notwithstanding his substantial means and his enjoyment of access; his mounting anger, leading to hatred of the victim – because of fear that maintenance payments might make some tiny inroad into his secure financial position; his striking lack of remorse and striking and persisting self-justification. The judge found that the suggested provocation was one of the applicant's many inventions and that the victim had long gone in fear of him. This was no killing of a sudden by a person roused by some incident to anger. Nor was it (as the applicant has claimed) the result of a succession of unjust demands and unfair, improper and malicious acts by the woman or her solicitor and unjust responses by the Family Court. There was a long history, but it was a history of ordinary, legitimate attempts to get money for the children leading to an increasingly angry response and a determination to pay nothing, culminating in the burial of $400,000 under the wood heap and the savage killing. Murder had been in contemplation for some time. The victim was murdered as she walked back to court by a man determined to kill rather than have the order made against him which he feared was imminent. Such a killing must be viewed most seriously.
I am not persuaded that this sentence was manifestly excessive.
HAMPEL, A.J.A.:
For the reasons given by the Chief Justice and Mr. Justice Brooking I agree that both applications should be dismissed.
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