R v Rogers - [2016] SASCFC 38

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v ROGERS
[2016] SASCFC 38
Reasons for Decision of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Peek and The Honourable Justice Lovell)
14 April 2016
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - PROVOCATION - AVAILABILITY OF DEFENCE
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - PROVOCATION - CONDUCT CAPABLE OF AMOUNTING TO
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - PROVOCATION - EVIDENCE
CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - ATTEMPT - PARTICULAR OFFENCES - OTHER CASES
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE - APPLICATION OF PROVISO TO PARTICULAR CASES
Appeal against conviction. The applicant was convicted by majority verdict of the attempted murder of her husband. The applicant admitted that she stabbed the complainant twice in the neck with a knife. One of the wounds cut the carotid artery and was potentially fatal. At trial, the applicant raised self defence, giving evidence that she had used the knife to defend herself from the complainant, who had punched her.
The applicant and the complainant had a troubled relationship. The applicant gave evidence that the complainant was verbally abusive and, on occasion, exhibited physical violence toward her. The evidence suggested that both the applicant and the complainant had engaged in extramarital affairs and had, at times, left the matrimonial home. However, the couple continued to have a sexual relationship. The applicant gave evidence that she was trying to make the marriage work. She said that the complainant had also indicated that he was open to reconciliation.
Both the applicant and the complainant gave evidence that, on 25 January 2014, the applicant told the complainant that she was pregnant and that, when she did so, he became very angry and said he wanted to punch her in the stomach to end the pregnancy. The applicant gave evidence that on 5 March 2014 she attempted to talk to the complainant about their marriage and he told her to treat it as if he were never coming back. She gave evidence that the complainant came toward her, pushed her and then punched her. The applicant went and got a knife and then stabbed the complainant after he punched her a second time.
The applicant gave evidence that the punches to her stomach caused her to feel upset and worried about losing her unborn child. The complainant denied punching the applicant in the stomach. There was medical evidence of a perisac haematoma inside the womb, possibly caused by blunt force trauma, which gave some support to this aspect of the applicant’s evidence. The complainant gave evidence that the applicant yelled and started to breathe heavily after she grabbed the knife. The applicant gave evidence that she was not thinking at that point. Immediately after the stabbing, the applicant apologised to the complainant and called an ambulance on her mobile telephone.
The applicant sought permission to appeal on the basis that the Judge erred in not directing the jury as to provocation, which would have allowed a verdict of attempted manslaughter pursuant to s270AB of the Criminal Law Consolidation Act 1935.
Held per Gray and Peek JJ (granting permission to appeal and allowing the appeal):
1.       Provocation should have been left to the jury. There can be no application of the proviso. The conviction must be set aside and a retrial ordered.
Per Gray J:
1.       There were sufficient facts from which a jury would be entitled to infer loss of self-control.
2.       Van Den Hoek v The Queen makes it clear that a jury may find the conduct of a husband in threatening to divorce or kill his wife provocative. In this case, there was evidence from both the defendant and her husband that the husband effectively ended the relationship. This was against a background of physical violence and threats.
Per Peek J:
1.       The most favourable basis open to the jury was the following: the applicant wished to give birth to the unborn baby; she was confronted by her estranged husband who had lost his temper and was seriously assaulting her, including by delivering blows to her abdomen; she knew he had learnt of the pregnancy about five weeks before and had threatened to kill the unborn baby by punching her in the abdomen; the emotion of fear led to loss of self-control and she took up a knife and stabbed at him with her eyes closed, attempting to kill him; she happened to inflict a serious injury to his neck; and she then regained control, apologised and telephoned an ambulance.
2.       The applicant’s evidence may be indicative of a loss of clarity of thought evocative of loss of control. The fact that the applicant’s evidence does not account for all of the injuries, the disproportionate nature of the attack, the complainant’s evidence of the applicant’s yelling and heavy breathing, and the evidence of the applicant’s behaviour subsequent to the stabbing may also be indicative of a loss of self-control. The jury thus might not unreasonably have considered that the prosecution had not negatived the possibility that the applicant lost her self-control at the relevant time.
Per Lovell J (dismissing the appeal):
1.       On the facts the trial Judge was correct in not leaving provocation to the jury.
Criminal Law Consolidation Act 1935 (SA) s 270A, s 270AB and s 353(1), referred to.
James v The Queen (2014) 253 CLR 475; Johnson v The Queen (1976) 136 CLR 619; Lindsay v The Queen (2015) 89 ALJR 518; Masciantonio v The Queen (1995) 183 CLR 58; Pemble v The Queen (1971) 124 CLR 107; R v Chhay (1994) 72 A Crim R 1; R v Earley (Unreported, Supreme Court of South Australia, King CJ, Millhouse and Olsson JJ, 6 April 1990); R v McCarthy [2015] SASCFC 177; R v Perks (1986) 41 SASR 335; Stingel v The Queen (1990) 171 CLR 312; The Queen v R (1981) 28 SASR 321; Van Den Hoek v The Queen (1986) 161 CLR 158; Varley v The Queen (1976) 51 ALJR 243, discussed.
Parker v The Queen (1963) 111 CLR 610; Pollock v The Queen (2010) 242 CLR 233; Green v The Queen (1997) 191 CLR 334; Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; Weiss v R (2005) 224 CLR 300, considered.

R v ROGERS
[2016] SASCFC 38
Court of Criminal Appeal: Gray, Peek and Lovell JJ
GRAY J.

Following a trial before Judge and jury in the Supreme Court, the defendant and appellant, Melissa Carolyn Rogers, was convicted of the crime of attempted murder.[1] This is an application for permission to appeal against that conviction.
[1] Criminal Law Consolidation Act 1935 (SA) sections 11 and 270A.
It was the prosecution case that the defendant stabbed her husband twice in the neck. One of the wounds cut the carotid artery and was potentially fatal. The defendant did not dispute the stabbing.
At trial, the defendant raised self defence, giving evidence that her husband had come toward her and punched her, and that she picked up the knife and used it to defend herself. She said that she had not aimed at her husband’s neck, intending to strike him in the arm, but she had closed her eyes.
On a case of attempted murder, by virtue of section 270AB of the Criminal Law Consolidation Act 1935 (SA), the partial defence of provocation may enable the Court to find the defendant guilty of attempted manslaughter. The defendant’s counsel initially suggested that provocation may arise on the evidence. The Judge said that he was not minded to direct the jury on provocation and counsel subsequently agreed that it did not arise on the facts. Accordingly, provocation was not left by the Judge for the jury’s consideration.
On the appeal, the only issue was whether provocation should have been left to the jury.
The question for this Court in considering whether the trial Judge was required to leave provocation for the consideration of the jury is the same as that which confronted the Judge himself at the conclusion of the evidence. The question is whether there was evidence in the trial which, if believed, might reasonably have led a jury to return a verdict of attempted manslaughter on the ground of provocation.[2] Put another way, did the evidence, taken at its most favourable to the defendant, disclose material on which a reasonable jury, properly directed, might have a reasonable doubt on the question of provocation.[3]
[2] Van Den Hoek v The Queen (1986) 161 CLR 158, 162.
[3] The Queen v R (1981) 28 SASR 321, 322.
In Lindsay,[4] the High Court addressed the law of provocation applicable in this jurisdiction. As to the relevant principles, the plurality observed:[5]
Provocation at common law operates to reduce what would otherwise be murder to manslaughter. Although it is common to describe the doctrine as a “partial defence”, the true position is that the unlawful intentional killing of another under provocation is not murder. The malice that is implicit in the intention to kill or to do grievous bodily harm is denied in the case of a killing done under provocation. There are two conditions for the operation of the doctrine: first, the provocation must be such that it is capable of causing an ordinary person to lose self-control and act in the way the accused did (the objective limb); and second, the provocation must actually cause the accused to lose self-control and the killing must take place while the accused is deprived of his or her self-control (the subjective limb). The focus of the objective limb is upon the capacity of the provocation to cause an ordinary person to lose self control and form the intention to kill or to do grievous bodily harm. Where the evidence raises the issue, the prosecution must prove that the killing was not done under provocation. The prosecution may do so by negativing beyond reasonable doubt either of the limbs of the doctrine.
Where provocation is raised by the evidence, the determination of whether it has been negatived is for the jury. Whether the subjective limb is negatived is a question of fact. Whether the objective limb is satisfied is a question of opinion or, to adopt Glanville Williams’ classification, it is a question of “evaluative fact”. The threshold question of law is whether there is material in the evidence which sufficiently raises the issue to leave the partial defence for the jury’s consideration. 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. ...
[Footnotes omitted. Emphasis added.]
[4] Lindsay v The Queen (2015) 89 ALJR 518.
[5] Lindsay v The Queen (2015) 89 ALJR 518, 523.
Background
The defendant and her husband were married in the year 2003. At the time of the stabbing, there was one child of the marriage, a son, K, aged five years. Both the defendant and her husband were in regular employment. They owned a home in suburban Adelaide. The evidence established that they had a robust sex life together and, additionally, attended what were described as “sex parties” in the Adelaide hills. The marriage initially appeared to be stable and happy. However, sometime after the birth of their son, difficulties appeared. The defendant, over time, became concerned over the possibility that her husband had developed an interest in other women and her concerns and anxiety heightened in the year or so leading to the stabbing. Some six months before the stabbing, the defendant herself engaged in an extramarital affair. In the months leading to the stabbing, both parties had, at times, left the matrimonial home. Notwithstanding the above circumstances, the defendant and her husband were, from time to time, on good relations and often engaged in sexual activity.
It was the defendant’s evidence that, by late 2013, she was endeavouring to make their marriage work so that they may have a future together. There was a substantial body of evidence supporting her assertions about her endeavours. At times, however, her conduct was not entirely consistent. A review of the evidence suggests a level of immaturity on the part of the defendant.
In the three months or so leading to the stabbing, there were many occasions where the defendant was pursuing her endeavour to make the marriage work. The defendant’s husband was at times resistant to these attempts but on other occasions appeared to be making a real effort to make the marriage work. The couple attended marriage counselling on two occasions in the months before the stabbing and a further meeting had been arranged with their counsellor at a time following the stabbing. It appears from the evidence of the defendant’s husband that, by the early months of 2014, he was in the process of establishing a serious relationship with another woman. The evidence suggests that the true nature of this developing relationship was kept from the defendant. It is against this background that the stabbing on 5 March 2014 occurred.
The defendant gave evidence that, during January 2014, she and her husband regularly engaged in sexual intercourse and that, as a consequence, she fell pregnant. At the time of the stabbing, the defendant was about two months’ pregnant. Her husband had been anxious for contraception to be used but, on at least one occasion, the couple had unprotected sex. The following day the defendant’s husband went to a pharmacy and obtained a morning after pill. The defendant did not take the pill and the evidence suggests that it may have been on this occasion that she fell pregnant. The defendant learnt that she was pregnant on 24 January 2014 and she informed her husband on 25 January 2014. He became very angry, claiming that he was not the father and that person with whom she had an affair some months earlier was the father. This became a matter of contention over the ensuing period until the stabbing.
The defendant claimed that her husband said he should hit her in the stomach. According to the defendant, sometime in February 2014 her husband also threatened to kill her. On the husband’s evidence, he acknowledged that sexual activity had taken place in January 2014. He agreed that he initially claimed that he was not the father. He further agreed that he said he should hit the defendant in the stomach to terminate the pregnancy.
On the morning of 5 March 2014, the defendant’s husband came to the matrimonial home at about 4.20 am. He was dressed and prepared for work later that day. He attended the home in the course of an arrangement that he would look after K while the defendant went to work. When he arrived, the defendant was dressed for work and was in the process of preparing a light breakfast. The defendant went to the bedroom, put his bag in the wardrobe, took off his shoes and got into bed. It also appears that K was asleep in the bed. The defendant wished to discuss their ongoing relationship with a view to its continuance. She spent some time talking to her husband on the topic. After a short time he got out of bed and put on his shoes while the discussion continued. On the defendant’s evidence, her husband went to leave and told her that she was in the way. He pushed his way past her and punched her in the chest. The defendant followed him into the hallway and then went into the kitchen. The defendant gave evidence that when she walked back toward the bedroom, the defendant came at her and punched her in the stomach. She backed into the bedroom and picked up a knife with a view to defending herself. He punched her in the stomach again and, as he came at her, she closed her eyes and stabbed him. It was her case that she acted in self defence.
In R, King CJ explained the role of the Court on appeal when considering whether provocation should be left:[6]
The respective functions of judge and jury when a defence of provocation is raised are defined in the speech of Viscount Simon in Holmes v. Director of Public Prosecutions:
“In dealing with provocation as justifying the view that the crime may be manslaughter and not murder, a distinction must be made between what the judge lays down as matter of law, and what the jury decides as matter of fact. If there is no sufficient material, even on a view of the evidence most favourable to the accused, for a jury (which means a reasonable jury) to form the view that a reasonable person so provoked could be driven, through transport of passion and loss of self-control, to the degree and method and continuance of violence which produces the death it is the duty of the judge as matter of law to direct the jury that the evidence does not support a verdict of manslaughter. If, on the other hand, the case is one in which the view might fairly be taken (a) that a reasonable person, in consequence of the provocation received, might be so rendered subject to passion or loss of control as to be led to use the violence with fatal results, and (b) that the accused was in fact acting under the stress of such provocation, then it is for the jury to determine whether on its view of the facts manslaughter or murder is the appropriate verdict.”
It is not the function of this Court of Criminal Appeal to consider whether the evidence should lead to a verdict of manslaughter by reason of provocation. The function of this Court is to consider whether the evidence discloses material upon which a reasonable jury, properly directed as to the law, might reach that verdict. If there is such material, it is for the jury to evaluate it and the issue of provocation should be left for its decision. If there is no such material the proper course for the trial judge is to withdraw the issue from the jury.
Is there such material in the present case? In considering this question it is necessary to examine the evidence in the light which is most favourable to the appellant. If the evidence at its most favourable to the appellant discloses material upon which a reasonable jury might at least have a reasonable doubt on the question of provocation, there is an issue to be left to the jury. ...
[Footnote omitted. Emphasis added.]
[6] The Queen v R (1981) 28 SASR 321, 322.
The case of R involved a wife killing her husband after discovering that he had been sexually abusing their daughters. King CJ went on to make further relevant observations:[7]
In determining whether the deceased’s actions and words on the fatal night could amount to provocation in law, it is necessary to consider them against the background of family violence and sexual abuse. I have reached the conclusion that, at least on the version of the facts most favourable to the appellant, it was open to a reasonable jury to take the view that an ordinary person possessing those characteristics of the appellant which rendered her susceptible, might suffer, in consequence of the deceased’s words and actions on the fatal night, a loss of self-control to the extent of doing what the appellant did. ...
[Emphasis added.]
King CJ concluded:[8]
I think also that it was open to a reasonable jury to conclude that this appellant did lose her self-control and that she killed while in that state. The ferocity of the attack and the words and actions which accompanied it, as described by the appellant are suggestive of loss of control. The appellant in her evidence did not expressly describe her state of mind in terms of loss of self-control, but that is not necessary: Lee Chun-Chuen v. The Queenll. Loss of self-control can be shown by inference instead of direct evidence: Lee Chun-Chuen v. The Queen at p. 233; R. v. Hopper; Kwaku Mensah v. The King; Sreckovic v. The Queen. There is sufficient, in my opinion, in the circumstances of the killing and the account given by the appellant to enable a jury, if it thought proper, to infer that the appellant killed at a time when she had lost her self-control.
There is, I am bound to say, a substantial body of evidence which tends to indicate that the appellant killed the deceased, not in consequence of any loss of self-control, but in consequence of a decision made while in command of her mind and will, and motivated by hatred and by a desire to ensure that he never again molested her daughters. There is, indeed, much evidence to suggest that the decision to kill was made many hours before the fatal incident occurred. It is unnecessary to refer in detail to this evidence. It would require the careful consideration of a jury at a new trial. To say that there is an issue fit for the consideration of a jury is to say nothing as to whether that issue ought to be resolved in favour of the prosecution or the defence. Whatever might be thought of the cogency of the evidence suggestive of the formation of an intention to kill quite independently of any provocation offered by the words or conduct of the deceased on the Wednesday night there is, in my opinion, material on the issue of provocation which ought to have been left to the jury.
[Emphasis added.]
[7] The Queen v R (1981) 28 SASR 321, 326.
[8] The Queen v R (1981) 28 SASR 321, 327-8.

In Van Den Hoek,[9] the High Court allowed an appeal against a conviction for murder on the basis that there was evidence of provocation fit to be left for the jury and the Judge erred in not leaving the defence of provocation. The plurality, Gibbs CJ, Wilson, Brennan and Deane JJ, set out in their reasons the substance of the appellant’s evidence. The appellant described how her husband entered the house in an aggressive mood and told her that he wanted a divorce. She replied that she wanted him to think it over and maybe start again. He responded to the effect that he had made up his mind and that he was going to kill her. He produced a knife and came toward her. In her struggle to get away, she lashed out at him with her legs and hit him. He slipped and fell down, dropping the knife. She said that she was scared so she bent down, picked up the knife, stabbed him and ran. The appellant then described how her husband chased her and that she first threw a brick at him and then later picked up the broken piece of brick and struck him with a blow to the head. Her husband died in hospital, the cause of death being the stabbing. The plurality noted that the appellant’s evidence was, in material respects, in conflict with that of an independent witness, who happened to be driving past the house at the relevant time. There was evidence from a medical practitioner who examined the appellant soon after the incident. He said that she was hyperventilating in the sense that she was breathing very rapidly in a manner usually associated with someone under extreme anxiety or upset. She remained in that state for some time.
[9] Van Den Hoek v The Queen (1986) 161 CLR 158.
At trial, counsel for the appellant informed the trial Judge that the only issues were intention and self defence. The Judge directed the jury that there was nothing in the evidence to sustain a plea of provocation.
The plurality noted that the appellant had not expressly said in evidence that she had been deprived of the power of self-control and further noted that counsel had, in effect, told the Judge that provocation was not in issue. The plurality considered that neither of these matters absolved the trial Judge from the necessity of leaving provocation to a jury if there was some evidence fit for its consideration. The question that then arose was whether there was evidence which, if believed, might reasonably have led the jury to return a verdict of manslaughter on the ground of provocation. The plurality noted that the jury were entitled to accept the evidence of the appellant, in its material respects, notwithstanding that on some points there was conflict between her evidence and other evidence. The plurality considered that if they did accept the material parts of her evidence, the jury were entitled to form the view that her husband’s conduct was provocative and by reason of that provocation, the appellant was driven to lose her self-control and, in consequence, to do the acts that resulted in death. It was further observed that, in the circumstances of the matter, the jury might, not unreasonably, have further concluded that a reasonable or ordinary woman might, in consequence of the provocation, be so rendered liable to loss of control as to do what the appellant did and that the appellant’s actions were not disproportionate to the provocation. The plurality considered that these were all questions for the jury and that it was trite to say that in a case of provocation all the defence need do is to point to material that might induce reasonable doubt. The plurality accepted the submission of the Crown that the Court should order a new trial rather than substitute a verdict of manslaughter since it would be open to a jury to entirely disbelieve the appellant.
Mason J agreed that the appeal should be allowed and provided separate reasons. In the course of those reasons, his Honour discussed loss of self-control due to fear and, in that respect, observed:[10]
If the doctrine of provocation were confined to loss of self-control due to anger or resentment, as distinct from fear, then the conclusion reached by the majority in the Court of Criminal Appeal might well be sound, provided that the applicant's evidence excluded any reasonable inference that she was overcome by anger or resentment when, on her account, the deceased attacked her in the bathroom. However, for the reasons given, the doctrine of provocation is not confined in this way.
The evidence was sufficient to raise the defence for the determination of the jury. The applicant testified that she was terrified by the deceased’s attack on her. The uncontradicted medical evidence established, not only that she was in a state of extreme anxiety, but also that her condition was such that her ability to think and relate to what was happening had been impaired. True it is that she did not testify to her sudden loss of self-control. But the absence of self-control may be inferred from her state of fear and anxiety. That the loss of self-control was sudden and temporary and that it was caused by the acts of the deceased, deposed to by the applicant, might also be reasonably inferred. In passing I should mention that Kennedy J.’s comment “She was not angry” does not precisely reflect the applicant's evidence. She certainly stated that she was not angry when the deceased demanded a divorce, but she was at no time asked whether she was angry when the struggle occurred in the bathroom and continued outside.
The failure of an accused person to testify to loss of self-control is not fatal to a defence of provocation or a case in which 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: Lee Chun-Chuen. The jury’s capacity to infer loss of self-control from appropriate facts is underscored by the comment of Lord Devlin, speaking for the Judicial Committee, in Lee Chun-Chuen that a jury would be entitled to infer loss of self-control from facts suggesting a possible loss of self-control, even if the accused expressly denied loss of temper, especially when the nature of the main defence would account for the falsehood. Of course, an admission of fear is not as antagonistic to self-defence as an admission of anger. None the less the point remains that the absence of direct evidence of loss of self-control is explicable when self-defence is an issue with the result that the jury is entitled to infer it in the absence of direct evidence.
It has been repeatedly held that if there is material on which a jury, acting reasonably, could find manslaughter as a result of provocation, it is the duty of the trial judge to put the issue to the jury, even if there is no suggestion at the trial that the issue should be put to the jury: Parker; Pemble v. The Queen.
[Footnotes omitted. Emphasis added.]
[10] Van Den Hoek v The Queen (1986) 161 CLR 158, 168-9.
As earlier discussed, the ultimate question for this Court is whether the partial defence of provocation should have been left to the jury. The assessment of the gravity of the provocative conduct, from the viewpoint of the defendant, is to be conducted upon a consideration of the evidence at its most favourable to the defendant. The question of what weight is to be given to the evidence forms no part of the exercise and, as such, the trial Judge did not enjoy any advantage over this Court.
The Evidence at its Highest
The following summarises the evidence at its highest, from the point of view of the defendant, for the purposes of considering whether provocation should have been left to the jury.
-The defendant and her husband were married in the year 2003. The defendant became pregnant by her husband but lost the baby. Later they had a son, K, born in 2008. They had purchased a block of land together in suburban Adelaide, built a house and had lived there for some years as a family. In January 2014, the defendant again became pregnant by her husband. A daughter was later born.
-After some years the defendant became concerned about the state of the marriage. She was anxious for the marriage to continue. She wanted the family to continue as a family.
-The defendant’s charged conduct occurred against the background of the troubled nature of the relationship between the defendant and her husband in the months leading to the stabbing.
-The defendant’s husband commenced a relationship with another woman in January 2014. He kept hidden from the defendant the true nature of this relationship.
-On learning from the defendant that she was pregnant in or about late January 2014, the defendant’s husband threatened to punch her in the stomach to terminate the pregnancy.
-On or about 23 February 2014, on a family outing at the beach, the defendant’s husband became enraged and threatened to kill the defendant and smash her skull in. He said that he would be better off if she was dead.
-At the defendant’s instigation, and with her husband’s support, they attended two marriage counselling sessions in early 2014. A further counselling session had been arranged for a time after the stabbing.
-The defendant’s husband kept giving the defendant mixed messages about whether the marriage was salvageable. He indicated that he wanted to “[keep] the door open” for a reconciliation between them.
-The defendant’s husband had on occasions exhibited physical violence towards the defendant and had verbally abused her, yet he continued to engage in sexual activity with her.
-In the days leading to the stabbing, the defendant’s husband was not responding to the defendant’s attempts to contact him about their child K.
-On 5 March 2014, the defendant’s husband arrived at the matrimonial home at 4.20 am to look after K while the defendant went to work. The defendant attempted to discuss their matrimonial difficulties and the continuation of their marriage. The defendant spoke of needing hope to which her husband responded “treat it as if I’m never coming back”. The discussion took place in the bedroom.
-The defendant’s husband went to leave the bedroom. He was angry at the time. He had physical contact with the defendant when leaving the bedroom by pushing her out of his way and then punching her in the chest. The defendant followed her husband into the hallway and then went into the kitchen. On her return to the bedroom, when they were both in the hallway, he pushed her into a doorframe and then punched her in the left side of her stomach. At the time she was punched in her stomach, the defendant felt upset and was worried about losing her unborn child.
-The defendant walked into the bedroom and grabbed a knife from the top of a tallboy. The defendant punched her in the side of the stomach a second time. The defendant yelled out and was breathing heavily. She went to stab her husband in the arm. As she did so she closed her eyes and stabbed him twice in quick succession. The defendant’s evidence was that she “wasn’t thinking at [the] point” she grabbed the knife.
-Once the defendant realised that she had stabbed her husband in the neck she apologised and rang triple zero for an ambulance.
-There was medical evidence that the defendant had sustained a perisac haematoma. One possible cause of that is blunt force trauma.
It is to be observed that much of the above evidence was the subject of conflicting testimony. However, the above summary takes the trial evidence at its highest from the defendant’s point of view in respect of the defence of provocation.
On appeal, counsel for the defendant emphasised that the defendant’s conduct had to be judged against the background of mixed messages from her husband as to the status of the marriage, his previous acts of physical violence and verbal abuse, and his assaults that morning. Counsel submitted that against this background, a reasonable jury, properly directed, could have concluded that the husband’s conduct immediately prior to the stabbing could have caused an ordinary person to lose their self-control and act in the way the defendant did.
The Director of Public Prosecutions contended that, in the circumstances of the case, no reasonable jury would be satisfied of the objective test. The Director submitted that the conduct of the husband in communicating that the marriage was over had to also be viewed in the context of the undisputed evidence of the on-and-off-again relationship and the defendant’s decision, a few months prior to the stabbing, to commence a relationship with another person. The Director contended that a decision to end a relationship, while sad and traumatic, was commonplace and there was an absence of circumstances personal to the defendant which would have operated to significantly heighten the gravity of that conduct from her perspective.
Discussion
Against the background of the authorities, the critical questions arising on this appeal may be addressed.
As to the subjective test, taking the evidence at the highest from the defendant’s point of view, that evidence discloses material upon which, in my view, a reasonable jury, properly directed, might conclude that the attempt by the defendant to kill her husband was the result of a sudden and temporary loss of control caused by provocative conduct on behalf of her husband. In my view, the provocative conduct included the evidence of both physical contact by the defendant’s husband toward the defendant as well as his statement to the effect that the marriage was finished. All of that conduct took colour from the background of their relationship as discussed above. The defendant gave evidence that she was scared and upset. She said that everything happened quickly and that she was not thinking. The defendant’s husband gave evidence that the defendant was breathing heavily and yelling. He said that she seemed “like a boxer psyching themselves up to go and have a fight” and then the blows occurred in quick succession. In my view, there were sufficient facts from which a jury would be entitled to infer loss of self-control.
Turning to the objective test, in my view, the evidence at its highest from the defendant’s point of view discloses material upon which a jury, properly directed, might conclude that the provocative conduct of the defendant’s husband, with its implications and gravity, assessed from the viewpoint of the defendant, with the powers of self-control within the limits of what is ordinary for a person of that age, could cause the defendant to form the intention to kill and to act as she did. Van Den Hoek makes it clear that a jury may find the conduct of a husband in threatening to divorce or kill his wife provocative. In this case, there was evidence from both the defendant and her husband that the husband effectively ended the relationship. This was against a background of physical violence and threats to kill the defendant. In my view, the partial defence of provocation should have been left to the jury.
The Appropriate Order
The Court requested that the parties present submissions on whether it would be appropriate for the Court to apply the proviso if the Court was of the view that provocation should have been left to the jury. The proviso is found in section 353(1) of the Criminal Law Consolidation Act 1935 (SA) which provides:
The Full Court on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law, or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal; but the Full Court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
[Emphasis added.]
The High Court has determined that, although the proviso is expressed in permissive terms, if a court of appeal reaches the conclusion that no substantial injustice has actually occurred, the proviso must be applied.[11]
[11] Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92, 103; Lindsay v The Queen (2015) 89 ALJR 518, 528.
In Weiss, the High Court considered the meaning of the phrase “no substantial miscarriage of justice” as it relates to the proviso:[12]
... No single universally applicable description of what constitutes “no substantial miscarriage of justice” can be given. But one negative proposition may safely be offered. It cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused’s guilt of the offence on which the jury returned its verdict of guilty.
[Emphasis added.]
[12] Weiss v The Queen (2005) 224 CLR 300, 317.
The Director conceded that a conclusion that the partial defence of provocation should have been left forecloses the question of the application of the proviso. It is to be recalled the partial defence of provocation is to be left to the jury if the evidence, at its most favourable to the appellant, discloses material upon which a reasonable jury might at least have a reasonable doubt on the question of provocation.[13] The Director acknowledged the qualitative difference between this test and the test set out in Weiss. When applying the proviso the Court is not confined to answering the question of law on an assumed factual basis, that being on the version of the evidence most favourable to the accused. However, in my opinion, as an appellate court does not have the benefit of observing the witnesses and, consequently, is unable to making findings relating to credit, it would be a rare instance where the Court would reject any properly admitted evidence favourable to the accused’s case of provocation and, in doing so, find that the accepted evidence proved the defendant’s guilt of the offence of attempted murder beyond reasonable doubt. In this case, I cannot conclude that the evidence properly admitted at trial proved, beyond reasonable doubt, the defendant’s guilt of the offence of attempted murder.
[13] The Queen v R (1981) 28 SASR 321, 322.
Further, this is not an appropriate proceeding in which to substitute a verdict of attempted manslaughter. A properly directed jury may wholly reject the partial defence of provocation and, consequently, there should be a new trial on the charge of attempted murder.
Conclusion
For these reasons I joined in the order of the Court made on 14 December 2015, allowing the appeal, setting aside the conviction of attempted murder and ordering a retrial.
PEEK J.
Introduction
Ms Melissa Rogers (the applicant) was convicted by majority verdict of the attempted murder of her husband, Mr K (the deceased). It was alleged (and not disputed by the applicant) that she stabbed her husband twice in the neck with a knife; one of the wounds cut the carotid artery and was potentially fatal. The information appears as follows:
Melissa Carolyn [Rogers] is charged with the following offences:
First Count
Statement of Offence
Attempted Murder. (Sections 11 and 270A of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Melissa Carolyn [Rogers] on the 5^th day of March 2014 at Craigmore, attempted to murder James K.
Second Count
Statement of Offence
Aggravated Causing Serious Harm with Intent to Cause Serious Harm. (Section 23(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Melissa Carolyn [Rogers] on the 5^th day of March 2014 at Craigmore, caused serious harm to James K, intending to cause him serious harm.
It is further alleged that Melissa Carolyn [Rogers] used an offensive weapon, namely a knife, when committing the offence.

No verdict was returned on count 2 since it was an alternative to count 1.
The sole ground of appeal: Failure to direct on provocation
Section 270AB of the Criminal Law Consolidation Act 1935 provides that in a case of attempted murder, a lesser verdict of attempted manslaughter may be returned if the partial defence of provocation is not negatived by the prosecution.
The sole ground of appeal claims that the trial miscarried as a result of the trial Judge’s omission to direct the jury as to provocation. Both the matter of permission to appeal and extension of time were referred to this Court by the single Judge.
The position taken by counsel at trial concerning provocation
At trial, the applicant gave evidence that her husband had “come towards” her and punched her; that she had picked up the knife and used it to defend herself; and that she had not aimed at her husband’s neck, but had closed her eyes and intended to strike him in the arm. Her defence was that the prosecution did not prove the requisite intent or negative the defence of self-defence and that she was therefore entitled to a full acquittal on both counts 1 and 2.
The applicant’s counsel initially asked the Judge to direct the jury on the issue of provocation. The Judge indicated that his then view was that he was unlikely to do so, but that he was willing to hear more detailed submissions on the matter. Prosecution counsel did not suggest that provocation be left. Defence counsel, after a weekend break, withdrew his request stating “I thought about that on the weekend. It doesn’t arise on the facts, in my view”.
The doctrine in Pemble v The Queen
In what follows, I will adopt portions of my judgment in the recent decision of this Court in R v McCarthy[14] which deals with some of the issues arising here.
[14] [2015] SASCFC 177 (Peek J, Kourakis CJ agreeing).
The law has long been that even though a person charged with murder may choose to rely on a line of defence which leads to a complete acquittal rather than a verdict of manslaughter, a trial Judge is obliged to direct on reduction of murder to manslaughter by way of the partial defence of provocation (“provocation manslaughter”) if there is a factual basis for it on the evidence. This is also so in relation to a reduction of a charge of attempted murder to attempted manslaughter.
In Pemble v The Queen the High Court emphasised the distinction between civil and criminal trials and the independent duty of the trial Judge in a criminal case.[15] Barwick CJ stated:[16]
Whatever course counsel may see fit to take, no doubt bona fide but for tactical reasons in what he considers the best interest of his client, the trial judge must be astute to secure for the accused a fair trial according to law. This involves, in my opinion, an adequate direction both as to the law and the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or in part.
…
Here, counsel for the defence did not merely not rely on the matters now sought to be raised; he abandoned them and expressly confined the defence to the matters he did raise. However, in my opinion, this course did not relieve the trial judge of the duty to put to the jury with adequate assistance any matters on which the jury, upon the evidence, could find for the accused. I should mention in this connexion that this is an appeal and not an application for special leave to appeal.
[15] (1971) 124 CLR 107, 117-118 (Barwick CJ); 132-133 (Menzies J); 139 (Windeyer J).
[16] (1971) 124 CLR 107, 117-118.
To like effect, in Varley v The Queen, Barwick CJ (with whom Stephen, Mason, Jacobs and Aickin JJ concurred) stated:[17]
In relation to the submission that the judge’s decision to direct the jury as to the possibility of a verdict of manslaughter after the appellant had addressed the jury, it should first be said that if there were a basis in the evidence on which the jury, not being satisfied of all the elements of murder, could find manslaughter, he was bound to direct the jury accordingly. His duty in that regard cannot be controlled by the tactics or manoeuvring of the accused or of those representing him. So much clearly appears from the decided cases, eg Mancini v Director of Public Prosecutions [1942] AC 1; R v Gammage (1969) 122 CLR 444; Pemble v The Queen (1971) 124 CLR 107. The duty to give the appropriate direction is owed to accused and Crown alike, for if the evidence will bear the conclusion of manslaughter, in default of the jury’s satisfaction of all the elements of murder, the Crown is not to be denied a verdict nor the accused entitled to an acquittal.
[17] (1976) 51 ALJR 243, 245; 12 ALR 347, 351.
These principles have been approved by the High Court on many subsequent occasions[18] and have been consistently applied in South Australia[19] and the other Australian jurisdictions. In R v Perks,[20] White J furnished a detailed summary of some of the relevant authorities, which is reproduced in R v McCarthy.[21]
[18] Markby v The Queen (1978) 140 CLR 108; Howe v The Queen (1980) 55 ALJR 5; 32 ALR 478; Van Den Hoek v The Queen (1986) 161 CLR 158; Pantorno v The Queen (1989) 166 CLR 466; Stingel v The Queen (1990) 171 CLR 312; BRS v The Queen (1997) 191 CLR 275; Suresh v The Queen (1998) 72 ALJR 769; 153 ALR 145; Gipp v The Queen (1998) 194 CLR 106; Murray v The Queen (2002) 211 CLR 193; Gillard v The Queen (2003) 219 CLR 1; Heron v The Queen (2003) 77 ALJR 908; 197 ALR 81; Fingleton v The Queen (2005) 227 CLR 166; Gassy v The Queen (2008) 236 CLR 293; CTM v The Queen (2008) 236 CLR 440; Pollock v The Queen (2010) 242 CLR 233; Braysich v The Queen (2011) 243 CLR 434; James v The Queen (2014) 253 CLR 475.
[19] Discussion in South Australia includes: R v Perks (1986) 41 SASR 335; R v Murphy (1988) 52 SASR 186; R v Earley (Unreported, Supreme Court of South Australia, King CJ, Millhouse and Olsson JJ, 6 April 1990); R vBall, Bunce & Calliss (1991) 56 SASR 126, 139; R v Shinner (1993) 173 LSJS 384; Bedi v The Queen (1993) 61 SASR 269; R v Williamson (No 2) (1996) 67 SASR 428; R v B, MA (2007) 99 SASR 384; R v Tilley (2009) 105 SASR 306; R v Hajistassi (2010) 107 SASR 67; R v Roberts (2011) 111 SASR 100; R v McCarthy [2015] SASCFC 177.
[20] (1986) 41 SASR 335, 341-344.
[21] [2015] SASCFC 177 [185].
In Van Den Hoek v The Queen, Gibbs CJ, Wilson, Brennan and Deane JJ stated:[22]
At the trial counsel for the applicant informed the learned trial judge that the only issues were intention and self-defence. … Neither the fact that the applicant did not expressly say in evidence that she had been deprived of the power of self-control, nor the fact that counsel in effect told the learned trial judge that provocation was not an issue, absolved the learned trial judge from the necessity of leaving that issue to the jury if there was some evidence fit for its consideration.
And Mason J stated in Van Den Hoek:[23]
The failure of an accused person to testify to loss of self-control is not fatal to a defence of provocation or a case in which 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: Lee Chun-Chuen. The jury’s capacity to infer loss of self-control from appropriate facts is underscored by the comment of Lord Devlin, speaking for the Judicial Committee, in Lee Chun-Chuen that a jury would be entitled to infer loss of self‑control from facts suggesting a possible loss of self-control, even if the accused expressly denied loss of temper, especially when the nature of the main defence would account for the falsehood. [Citations omitted]
[22] (1986) 161 CLR 158, 161-162.
[23] (1986) 161 CLR 158, 169.
Similarly, in Lindsay v The Queen,[24] although the appellant did not give evidence, it was his positive case that he had not been present at the time of the fatal assault.
[24] (2015) 89 ALJR 518.
Thus, it is well established that if provocation is open on the evidence, the Judge must direct the jury as to it, even if defence counsel actively opposes that course for understandable forensic reasons, such as that talk of the possibility of the defendant having lost self-control might derogate from a primary defence of self-defence. Indeed, the principle extends to the case of an accused giving evidence under oath and positively denying loss of temper or control; this is because the law recognises that a person faced with a charge of murder, although having acted under provocation and therefore guilty of no more than manslaughter, will be presented with a strong temptation to falsely deny having been provoked in his desire to be completely acquitted. Here, the applicant faced that temptation both in relation to count 1 (which required an intention to kill) and also the lesser, but still very serious, count 2 (which required an intention to cause serious harm).
In James v The Queen,[25] the appellant contended that the strictness of the requirement to leave provocation manslaughter in the law of homicide should be extended to the area of other alternative verdicts in the general law. While declining that invitation, the High Court confirmed and cemented the present position pertaining to provocation manslaughter. The plurality stated:[26]
[18] Sir Owen Dixon, writing extra-curially in 1935, explained the point of present significance:
[T]he difference between murder and manslaughter was not the difference between two distinct felonies, but the difference between two descriptions of the one felony. They were differentiated only because the consequences of a conviction had, by statute, ceased to be the same. But the fact that the two descriptions formed only one felony is reflected in one consequence which profoundly affects the practical conduct and often the result of a murder trial of today. For it is because homicide is a single felony, that, upon an indictment of murder, a verdict of manslaughter may be found.
[19] The practical conduct of the trial of an indictment of murder at the time Sir Owen Dixon was writing was understood to require a trial judge to leave manslaughter in any case in which the accused or the jury asked about the matter notwithstanding that the facts did not support it. That understanding was corrected in Gammage which held that the jury did not have a right to return a “merciful” verdict of manslaughter. The obligation to leave manslaughter in most, although not all, cases was identified by Barwick CJ as arising from the necessity to satisfy the jury of the elements of murder. This was so whether the element in issue was proof of the intention accompanying the unlawful and dangerous act causing death or whether the prosecution had negatived a partial defence. In Varley v The Queen his Honour explained the obligation as one that is owed to the accused and the Crown alike. In the latter connection, his Honour observed that in default of the jury’s satisfaction of all the elements of murder, the Crown was not to be denied a verdict. As will appear, there is good reason not to extend this reasoning to the trial of offences generally. [Citations omitted]
[25] (2014) 253 CLR 475.
[26] (2014) 253 CLR 475, 484 (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).
Their Honours proceeded to explain that the much stricter obligation to leave provocation manslaughter proceeds from the important distinction between the prosecution negating a partial defence and the Judge leaving alternative verdicts:[27]
[33]    However, it is wrong to equate leaving a defence or partial defence with leaving alternative verdicts. The two are distinct. Where there is evidence to support a defence or partial defence it is incumbent on the prosecution to negative it. Satisfaction that the defence or partial defence has been negatived will be an issue in the trial and almost always will require the trial judge to so direct the jury. Where the prosecution does not seek the jury’s verdict for an offence not charged, the circumstance that in law the evidence may support conviction for a lesser offence does not without more make guilt of that lesser offence an issue in the trial. Fairness in such a case may favour that the accused’s chances of outright acquittal on the issues joined not be jeopardised by the trial judge’s decision to leave an alternative verdict.
…
[37]    The importance under Australian law of maintaining the separation between prosecutorial and judicial functions has been stated in a number of this court’s decisions since Benbolt. The view that it is the duty of the trial judge to invite the jury to determine the accused’s guilt of an included offence at a trial at which the prosecution has elected not to do so is incompatible with the separation of those functions. It is not the function of the trial judge to prevent the acquittal of the accused should the prosecution fail to prove guilt of the offence, or offences, upon which it seeks the jury’s verdict. At a trial at which neither party seeks to rely on an included offence, the trial judge may rightly assess that proof of the accused’s guilt of that offence is not a real issue. In such an event, it would be contrary to basic principle for the trial judge to embark on instruction respecting proof of guilt of the included offence.
[38]    The trial judge’s duty with respect to instruction on alternative verdicts is to be understood as an aspect of the duty to secure the fair trial of the accused. The question of whether the failure to leave an alternative verdict has occasioned a miscarriage of justice is answered by the appellate court’s assessment of what justice to the accused required in the circumstances of the particular case. That assessment takes into account the real issues in the trial and the forensic choices of counsel. As earlier noted, not infrequently defence counsel will decide not to sully the defence case (that the only proper verdict is one of outright acquittal) by an invitation to the jury to consider the accused’s guilt of a lesser offence. Such a forensic choice does not prevent counsel from submitting that the alternative verdict should none the less be left. Much less does it prevent counsel from making that submission where, as here, he or she is asked about the matter. It remains that the forensic choices of counsel are not determinative. The duty to secure a fair trial rests with the trial judge and on occasions its discharge will require that an alternative verdict is left despite defence counsel’s objection.     (Emphasis added; footnotes omitted)
[27] (2014) 253 CLR 475, 489; 490-491.
The evidence as to the relationship of Mr K and Ms Rogers
The evidence given by Mr K and Ms Rogers respectively as to the history of their relationship was lengthy and conflicting. The applicant gave evidence that Mr K had verbally abused her and on occasions had exhibited physical violence towards her; and yet she continued to engage in sexual activity with him. In the months leading up to the stabbing, the applicant was becoming increasingly frustrated by the nature of the relationship. In the final days prior to the stabbing, Mr K was not responding to her attempts to contact him about their child K; Mr K had commenced a relationship with another woman without telling the applicant that their relationship was over; indeed, he was still indicating that he wanted to “keep the door half open” for a reconciliation.
The evidence as to events of the Australia Day 2014 weekend
Mr K gave important evidence that on Saturday, 25 January 2014 the applicant informed him that she was pregnant and of his reaction to that news. He stated:
AI couldn’t believe it. I was very angry and very upset. I said things along the line of ‘I could punch you in the stomach and the baby would go away’. … and I just got very angry at the situation. (Emphasis added)
The applicant gave evidence as to this same occasion:
QOn this occasion when you spoke to James in the home and told him that you were pregnant, his reaction when he said ‘I want to punch you in the stomach’, what was his demeanour?
A     Yes, he was pissed off, he was really angry and fired up.
Q     And what else did he say?
AHe said ‘Are you serious; I really want to punch you in the stomach right now. There goes my life’ there was something else he said, I can’t even remember. But I’ve told him to calm down, to move from where he was to the other side of our actual kitchen table and then he sat down and I said to him, by the end of the day, that ‘I’m going to do this by myself’, whether it’s with him or without him.
Q     What was his response to that?
AHe was pissed off and he said ‘You’re a fucking manipulating bitch. Now I have to move home’. ...
The evidence as to the events of 5 March 2014
On 5 March 2014, Mr K travelled in his car to the applicant’s house. The applicant described the events occurring after his arrival thus:
Q     And you said ‘Good morning’ and he said - what were his words?
A     He said ‘Don’t talk to me or I’ll leave’.
Q     And you said something about the way he looked or his demeanour, what was that?
A     He seemed pissed off.
…
AJames came inside and locked the front door and the big door and then, as I walked further into the hallway, I seen James had gone into the toilet, the en suite, and I went into the kitchen to continue filling my cup of cereal and then of milk.
…
AI then walked into our bedroom and then James was on the toilet and I asked him if I could talk with him and he said to me ‘Yes, that was fine’. I sat on the ground and I sense by you. I feel that you’re either seeing someone or you’re with a few girls, but I just want to know what’s going on by the end of the day’. James said to me that he was still not seeing anyone or sleeping with anyone, or he held the moral high ground of our relationship, and then he got off of the toilet or finished on the toilet and then he went onto my side of the bed.
…
AI basically said ‘There is a few things that I’ve heard at work, rumours going around saying that I’m pregnant’ but it’s not his child and he said yes, he was very pissed off the night that I told him that I was pregnant and he told one of the guys at work and it’s rumoured around that way. And he just said ‘Well, I was angry’ and then I’ve asked him other things aren’t actually making sense.
…
AI then start basically saying ‘Things aren’t adding up. I feel like all your lies are catching up with you now and I just want to know the truth of what’s going on.
The applicant referred to further conversation and then recounted:
… he’s just sitting up but looking quite ticked off at that point, and I’ve said to him to just please come out and tell me what’s going on. He’s continued saying that ‘No, I’m telling you the truth, there’s nothing going on’, and I said ‘Well, Josh’s told me that you’ve made out, you’ve blabbered that you’ve made out with a stripper, plus you’ve made out with other girls. You told me that yes, that’s correct, but it still seems like there’s something going on’.
Q     What was his response, if anything, to that?
A     He said that no, he wasn’t seeing anyone and he wasn’t sleeping with anyone.
QAt that point in time, what was his demeanour? What was happening? What did you observe of him?
AHe then started getting arced up, sat more up on the bed, and then I just said ‘Look, I want to know by the end of the day what’s going on’, and he said ‘Treat it as if I’m never coming back’.
…
AJames has then gotten shitty and he’s walked around, around the bed to like the window area and then he’s – I’ve gotten up and put my cereal cup on the dresser, and then he’s come back around and he says –
…
AHe started to walk past the pram, then he said to me ‘You’re in my way’. I said ‘I’m not in your way’, and he’s pushed me and then he said ‘See, you’re in my way’ and then he’s pushed me again. He’s then walked around me. I’ve gone to grab my cereal cup and as he has walked out of the bedroom door. I’ve said to him ‘Just tell me the truth’. He’s turned around and he’s gone ‘Oh, oh’, and put his hands into fists and he has punched me in the chest. Then he’s walked off down to the hallway, I’ve walked that way and he says to me ‘Why are you following me?’ I said ‘I’m not following you, I’m going to the kitchen to empty my cereal, my milk from my cereal cup’. I went to the kitchen, I emptied the milk, I then started to walk back to the bedroom to see how [K] is, James has walked in front of me and as we were walking in the hallway, James has turned around and he’s pushed me in the chest. I’ve hit into the doorframe. Then he’s punched me into the left side of my stomach and he’s walked off into the bedroom. I’ve then gone into the bedroom and I’ve grabbed the knife, also wanting to find my phone as well, but then James has come towards me and punched me into the side of my stomach. As I’ve then went to stab him in the arm, and as I’ve closed my eyes, I’ve then seen that I’ve actually stabbed him in his neck area.
…
QI want you to stand up for a moment and just show us exactly where it is that James punched you.
A     Here (INDICATES).
QYou are indicating above the left hip in the tummy region, the belly region, and to the left-hand side, almost around the side, sort of. Is that right?
A     Yes (INDICATES).
Q     The punch that he delivered there, was it a closed-fist punch?
A     Yes.
Q     Describe it for us.
A     He just punched me here with a closed fist (INDICATES).
Q     Was anything said between you and him at that stage?
A     No, I can’t recall.
Q     How did that make you feel?
A     Upset and worried.
Q     Worried about what?
A     Losing my unborn child.
Q     After he delivered that punch to you, where did he go, if anywhere?
AHe walked off into the bedroom. I’ve then walked into the bedroom, I’ve grabbed the knife and then
…
Q     Where is James when you enter into the bedroom?
A     Around the bathroom area, and then he’s then come at me.
QAround the bathroom area; in the bathroom or just around the area, or whereabouts?
A     No, just in front on the carpet area.
Q     As you enter into the bedroom, you see James, what did you do?
AHe’s then come at me. He’s punched me in the stomach again. As he’s delivered a punch, I’ve gone to stab but I’ve closed my eyes thinking I was going to get him in the arm area, but I’ve actually gotten him in the neck.
…
QYou mentioned that James came towards you and he punched you. Whereabouts did he punch you on this occasion?
A     In the stomach.
QAnd where in relation to the other area you have described him punching you was this second punch?
A     In the stomach as well.
Q     In the same area or a different area?
A     To the side a bit more.
QWhen you say ‘to the side a bit’, are you referring to further back or forward on the same side, the left side?
A     To the actual side, like on the left side.
…
QWhen he did that, how did that make you feel; the punch in the bedroom I’m talking about?
A     Worried.
Q     Worried about what?
A     The baby.   (Emphasis added)
The evidence of Dr Waragoda

It is to be noted that although Mr K denied punching the applicant in the stomach, there is some medical evidence supportive of the applicant’s evidence that he did. Dr Waragoda saw the applicant at about 10:05am on 5 March 2014. He took a history, examined her, and ordered an ultrasound:
AMs [Rogers] told me that she was held against the wall, she was pushed to the wall and then held against the wall by her shoulders and then she was kicked on to her tummy.
AI did a full physical examination focusing on her complaints and I examined her head, neck, her chest, both upper limbs and lower limbs and I noticed two bruises on both shoulders, one on the right and one on the left and also another small bruise on her left mid thigh.
…
Q     How did you go about examining Ms [Rogers’] abdominal area?
AI noticed small tenderness in the lower abdomen, as I have noted on my notes and it was on the lower part of the abdomen.
Q     Is tenderness of that type something which is indicated by the patient?
AYes, she complained of abdominal pain and when I examined her, she was tender in that area.
Q     Did you see any visual sign of bruising to the area of her abdomen?
A     There were no visible bruises on the abdomen.
Q     Did you arrange for an ultrasound to be conducted?
A     Yes, exactly right.
QDid you understand at the time that you examined Ms [Rogers] that she was approximately nine and a half weeks pregnant?
A     Yes, correct.
Q     Was an ultrasound performed?
A     Yes, an ultrasound was performed on the same day.
…
Q     What were the findings on the ultrasound?
AIt says like this, I’m reading the report, there is an intra-uterine foetus, size 3.8cm, corresponding to 10 weeks and three days of gestation. Expected date of delivery is 28 September 2014. Cardiac activity was recorded at 164 beats per minute, which is normal.
Q     Just pausing there: did that information confirm that there was a viable pregnancy?
A     Yes, correct.
Q     What other information was contained within the ultrasound report?
AIt was noted that there was a small perisac haematoma under the foetal sac. The measurements 2.9 x 2.4 and -
HIS HONOUR:
Q     There was a small haematoma?
A     That’s correct.
Q     Whereabouts was it?
A     It says it was below the foetus, inside the womb.
Q     Below the foetus, inside the womb. A haematoma is a bruise, isn’t it?
A     Correct.
EXAMINATION
Q     What is a perisac haematoma?
A     A perisac haematoma means a haematoma or bleeding around the sac.
Q     Are you referring there to the foetal sac?
AThe foetus is within the sac and perisac means it is round the sac and it is all within the womb.
Q     What about the possible causes of a perisac haematoma in that position?
AThere can be many causes for the haematoma to occur. Many women undergo spontaneous abortions, miscarriages due to many reasons. It can be due to a number of health conditions, illnesses or high blood pressure or many other causes. As well as foetal causes, foetal infection or any other congenital abnormalities. At the same time, trauma like this or any other trauma would cause this bleeding.
…
Q     In this case there was no outside bruise, if I can put it that way; correct?
A     Yes, correct, but she was tender to touch.
QWhen you say ‘tender to touch’, she told you that when you applied pressure to the area where she was complaining about pain, is that correct?
A     Correct.
QAlso in relation to what you said, a blunt force trauma could cause a perisac haematoma, correct?
A     Yes.
QWhat I mean by that is either a punch, for example, to a general area around where Ms [Rogers] was complaining about could cause a perisac haematoma?
A     It is one of the possible causes.
QAlso a potential knee is blunt force trauma which could cause that as well to that area, correct?
A     It’s possible.
Mr K’s evidence of the applicant’s demeanour
Although Mr K gave a different account of events, and denied inflicting any blows on 5 March 2014, certain aspects of his evidence may nevertheless be indicative of a loss of control by the applicant. Thus he stated:
She then reached over to the right and she grabbed a knife from the top of the tallboy. Then she seemed to yell - I don’t know if it was directly at me - she called out, and then she started to breathe heavy and my son called out to me and then I turned around and then I felt like a punch, like I was hit really hard on the neck. (Emphasis added)
Did the provocation defence arise on the evidence?
In Lindsay v The Queen, the High Court summarised the doctrine of provocation thus:[28]
[15] Provocation at common law operates to reduce what would otherwise be murder to manslaughter. … There are two conditions for the operation of the doctrine: first, the provocation must be such that it is capable of causing an ordinary person to lose self-control and act in the way the accused did (the objective limb); and second, the provocation must actually cause the accused to lose self-control and the killing must take place while the accused is deprived of his or her self-control (the subjective limb). The focus of the objective limb is upon the capacity of the provocation to cause an ordinary person to lose self-control and form the intention to kill or to do grievous bodily harm. Where the evidence raises the issue, the prosecution must prove that the killing was not done under provocation. The prosecution may do so by negativing beyond reasonable doubt either of the limbs of the doctrine.
[16] Where provocation is raised by the evidence, the determination of whether it has been negatived is for the jury. Whether the subjective limb is negatived is a question of fact. Whether the objective limb is satisfied is a question of opinion or, to adopt Glanville Williams’ classification, it is a question of “evaluative fact”. The threshold question of law is whether there is material in the evidence which sufficiently raises the issue to leave the partial defence for the jury's consideration. 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 … . [Citations omitted]
[28] (2015) 89 ALJR 518, 523 [15]-[16] (French CJ, Kiefel, Bell and Keane JJ).
Of fundamental importance, where a trial Judge has decided not to leave the partial provocation defence to the jury, the correctness of that decision is to be assessed on appeal by reference to the most favourable factual scenario that the jury, acting reasonably, might have been prepared to entertain.[29] Thus, in Masciantonio v The Queen, the plurality stated:[30]
The answer to the question whether the trial judge should have left provocation to the jury at either stage of events in this case depends upon whether there was evidence which was capable of constituting provocation. However, because the onus of disproving provocation rests upon the prosecution once there is evidence to raise the question, the actual test must be expressed somewhat more precisely. It 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”.[31]
[29] There are many authorities to this effect, amongst them being Parker v The Queen (1963) 111 CLR 610; Masciantonio v The Queen (1995) 183 CLR 58; Stingel v The Queen (1990) 171 CLR 312; Pollock v The Queen (2010) 242 CLR 233; Lindsay v The Queen (2015) 89 ALJR 518.
[30] (1995) 183 CLR 58, 67-68 (Brennan, Deane, Dawson and Gaudron JJ). Approved in Lindsay v The Queen (2015) 89 ALJR 518 [26].
[31] Citing Stingelv The Queen (1990) 171 CLR 312, 334.
The subjective test for provocation
On the hearing of the appeal, the Director of Public Prosecutions for all intents and purposes conceded that there was sufficient evidence for the jury to consider the subjective aspect of the test for provocation. This concession was correctly made.
Emotions potentially productive of provocation
In R v Chhay, Gleeson CJ[32] (Finlay and Abadee JJ agreeing) observed in an important passage:[33]
The kind of loss of self-control that is here in question is not something that results in a state of automatism. Rather it is something that results in intentional homicide, the conduct of the accused, and the intent with which that conduct occurred, being attributable to the accused’s emotional response to the provocation. The very fact that we are not dealing with absolute loss of self-control, and that questions of degree are involved, raises a difficulty, as does the consideration that a variety of emotions can produce an urge to kill, and that such emotions are not all neatly separated.
…
The necessity to resort to metaphor in expounding the law on this subject is disconcerting. References to supposed raising or lowering of blood temperature, reason becoming unseated, and passion mastering understanding, seem calculated to confound, rather than assist, analytical reasoning. However, our understanding of consciousness and mental processes, as compared with our understanding of more readily observable physical phenomena, is so limited that metaphor seems generally to be regarded as essential in the expression of the ideas which guide us in this area of discourse.
…
The contrast between the formation of an intention to kill or cause grievous bodily harm arising out of emotions of hatred, resentment, fear or revenge on the one hand, and the formation of such intention as a result of loss of self-control in response to provocative conduct is not based on rigid and scientifically demonstrable distinctions. Emotions such as hatred or fear can fuel anger, and can lead to what is often regarded as a loss of self-control.
…
Emotions such as hatred, resentment, fear, or the desire for revenge, which commonly follow ill-treatment, and sometimes provide a motive for killing, do not of themselves involve a loss of self-control although on some occasions, and in some circumstances, they may lead to it. What the law is concerned with is whether the killing was done whilst the accused was in an emotional state which the jury are prepared to accept as a loss of self-control. (Emphasis added)
[32] His Honour was then Chief Justice of New South Wales.
[33] (1994) 72 A Crim R 1, 8-9; 14.
It is to be noted that Gleeson CJ here includes the emotion of fear as potentially productive of provocation. In earlier times, discussions of the doctrine of provocation were conducted against the background of emotions such as hatred, resentment the desire for revenge and the like. As far as I am aware, it was in Van Den Hoek v The Queen[34] that the High Court first expressly stated that the emotion of fear alone may give rise to a provocation defence. In that case, the defence was one of self-defence and the Judge was not asked to leave provocation to the jury. The plurality observed:[35]
… The applicant herself did not in her evidence suggest that she had lost her self-control. She did say that she was terrified and acted as she did to defend herself.
The question on which the learned members of the Court of Criminal Appeal disagreed was whether the learned trial judge erred in failing to direct the jury on the issue of provocation. Neither the fact that the applicant did not expressly say in evidence that she had been deprived of the power of self-control, nor the fact that counsel in effect told the learned trial judge that provocation was not an issue, absolved the learned trial judge from the necessity of leaving that issue to the jury if there was some evidence fit for its consideration. …
The question that then arises is whether there was evidence which, if believed, might reasonably have led the jury to return a verdict of manslaughter on the ground of provocation. With all respect to the views of the majority of the Court of Criminal Appeal in the present case that question should be answered in the affirmative. The jury were entitled to accept the evidence of the applicant, in its material respects, notwithstanding that on some points there was a conflict between her evidence and other evidence.
[34] (1986) 161 CLR 158, 169.
[35] (1986) 161 CLR 158, 161-162.
Of course, the point is that the Court decided that provocation had to be left to the jury and the only basis of provocation was loss of self-control due to fear or panic. Mason J addressed this matter more explicitly:[36]
Traditionally the onset of sudden passion involving loss of self-control characteristic of provocation has been associated with acts or actions which provoke the accused to uncontrollable anger or resentment (East’s Pleas of the Crown (1803) vol 1, p 238; Law Reform Commissioner for Victoria, Provocation and Diminished Responsibility as Defences to Murder, Report No 12 (1982), pp 7-8), a notion that may be traced back as far as Aristotle: Nicomachean Ethics, Bk V, p 8. Indeed, the historical concept of provocation as a defence has reflected the ordinary meaning of the word, ie, an act or action that excites anger or resentment. These days, however, judicial discussion of the doctrine places emphasis on the accused’s sudden and temporary loss of self-control, without necessarily attributing that loss of self-control to anger or resentment (Johnson), except in so far as it is asserted that the act which causes death was done as a result of passion or, as it is colourfully expressed, “in the heat of passion”: Moffa v The Queen; Parker; Johnson. …
In Anglo-Australian criminal law provocation and self-defence are distinct and separate defences. Provocation is more limited in its area of operation and in its consequences. And there is a difference in the elements of the two defences. Loss of self-control is essential to the first, but not to the second. It has been said that a loss of self-control caused by fear, panic or mental instability cannot be brought within the defence of provocation: Ashworth, “The Doctrine of Provocation”, [1976] Cambridge Law Journal, 292, at p 297. But the better view is that expressed by Professor Glanville Williams in his Textbook of Criminal Law, 2nd ed (1983), p 524: “Anger is the domain of the law of provocation, fear that of the law of private defence — though fear is also capable of amounting to provocation.”
No doubt it is true to say that primarily anger is a feature of provocation and fear a feature of self-defence. But it is too much to say that fear caused by an act of provocation cannot give rise to a defence of provocation. In Reg v Tikos [No 1] Smith J expressly recognized that it was sufficient to make out the defence “if there was circumstantial evidence of a loss of self-control, due to a mixture of fear and anger”. Indeed, the majority decision in that case seems to have proceeded on this ground.
The narrow view that loss of self-control due to fear stands outside the doctrine of provocation is the product of the terms in which the doctrine has been enunciated in the earlier decisions. The circumstances of these cases were such as to invite discussion in terms of anger, retaliation and passion. And the doctrine of provocation emerged when the law of murder and manslaughter was in course of development: Parker. Because at that time malice aforethought or premeditation was thought to be an essential element of murder, provocation was held to negate malice. Now that the law of murder no longer places emphasis on malice aforethought the doctrine of provocation centres on loss of self-control. The references to passion, though lingering reflections of the old law, serve to underline the requirement that the loss of self-control must be sudden and temporary.
When all this is understood, there can now be no convincing reason for confining the doctrine to loss of self-control arising from anger or resentment. The doctrine naturally extends to a sudden and temporary loss of self-control due to an emotion such as fear or panic as well as anger or resentment. This extension of the defence conforms not only to the conceptual relationship between the doctrine and the mental elements in the offences of murder and manslaughter but also to the emphasis given in modern judgments to a sudden and temporary loss of self-control as the central element in the doctrine.
[36] (1986) 161 CLR 158, 166.
In R v Earley,[37] the appellant in his evidence at trial did not claim that he had lost self-control and defences of accident and self-defence were left to the jury. However, on appeal it was contended that provocation arose on the basis of fear; reliance was placed primarily on Van Den Hoek v The Queen. That contention was accepted by the Court. King CJ, after referring to the Pemble doctrine, and to the authoritative statements in Van Den Hoek, observed:
It has been repeatedly held that if there is material on which a jury, acting reasonably, could find manslaughter as a result of provocation, it is the duty of the trial judge to put the issue to the jury, even if there is no suggestion at the trial that the issue should be put to the jury: Parker; Pemble v The Queen. Mason J at 168 [in Van Den Hoek] indicated that the doctrine of provocation applied not only where the sudden and temporary loss of self-control resulted from anger and resentment, but also where it resulted from emotions such as fear and panic.
It follows from the above authoritative statements of the law that if on the evidence it was reasonably open to the jury to bring in a verdict of manslaughter on the basis of provocation, that issue ought to have been left to the jury notwithstanding that the appellant did not give evidence of loss of self-control and notwithstanding that the issue was not raised by the defence and that the judge was not asked to direct the jury on provocation. The test is whether there is “evidentiary material which, if accepted, is capable of producing in the minds of a reasonable jury a reasonable doubt as to whether the killing of the deceased by the accused did not occur in consequence of a sudden and temporary loss of self-control brought about by words or conduct of the deceased and as to whether those words or conduct might not have caused an ordinary person to lose his self-control and to do what the accused did”, The Queen v Romano (1984) 36 SASR 283 at 286. The question whether a defence should be left to the jury is to be determined upon the version of the facts most favourable to the accused, The Queen v R (1981) 28 SASR 321 at 325.
The appellant’s evidence was that he believed the appellant to be violent, both from what he had been told by Colleen White and from what he knew of what had happened to Rogers. Moreover he believed him to be moody as a result of what he had been told by Colleen White. …
The appellant related his state of mind to a fear that the deceased if he came into the room would seize and use the gun which, so the appellant believed, had been left there by the deceased.
I think that the appellant’s description of his state of mind, although not expressed in terms of loss of self-control, nevertheless, if believed, provides some basis for an inference that he indeed lost his self-control. The firing of the gun, if the appellant deliberately fired it, may also be some evidence of loss of self-control. The firing of a shot in the direction of the car, if that occurred, could be regarded as a further indication of loss of self-control. Taking all these matters together, I am of opinion that there was evidence fit for the consideration of the jury that the deceased’s actions caused the appellant to lose his self-control. As to the objective test of provocation, namely whether the conduct of the deceased might cause an ordinary person to lose his self-control, a jury is eminently qualified to determine what might be the reactions of an ordinary person and a trial judge must be cautious about withdrawing that issue from the jury. I think that there was sufficient evidence in the present case for consideration by the jury on that issue. (Emphasis added)
[37] (Unreported, Supreme Court of South Australia, King CJ, Millhouse and Olsson JJ, 6 April 1990).

In an important passage for the present case King CJ went on to observe:
The learned trial judge left self-defence to the jury and I think that it would be a rare case in which it would be open to the jury to conclude that the conduct of the deceased provided reasonable grounds for a belief on the part of the accused that the discharge of a firearm was necessary in his defence and yet not open to the jury to conclude that the same conduct on the part of the deceased amounted to provocation. If such a case is conceivable it is not, in my opinion, the present case.
(Emphasis added)
A similar comment may be made in the present case where the Judge left self defence to the jury in a case involving serious wounding by the use of a knife.
Was the subjective test satisfied here?
Referring to the evidence summarised above, the jury here might not unreasonably have considered that the prosecution had not negatived the possibility that fear had led to an emotional state which they were prepared to accept as a loss of self-control, due to the following possible version of events:
·that Mr K on 5 March 2014 did violently kick or punch the applicant in the abdomen when she was pregnant; and
·that she had then genuinely had fear particularly for the safety of the unborn child; and
·such fear was greatly exacerbated by her knowledge that Mr K had (as he admitted in his own evidence), about five weeks previously on Saturday 25 January 2014, in an angry frame of mind, had referred to destroying that unborn child by punching her in the abdomen.[38]
[38] Although unremarked upon by senior counsel for the applicant, the relevance of the decision of Green v The Queen (1997) 191 CLR 334 (recently referred to, for example, in Lindsay v The Queen in both the judgments of this Court and the High Court) is high; it seems to me that knowledge of the recent event only five weeks prior involving the same person (which was positively admitted by him at trial) in the present case is of comparable importance to the asserted recall by the accused in Green of abuse suggested to have been perpetrated years before and by a quite different person.
Against that background, the following passage of evidence of the applicant may have indicated a loss of clarity of thought evocative of loss of control at the relevant time:
Q     After you stabbed Mr [K] to the neck did you stab him again?
AIt was a twice reflex that I’d done but I didn’t realise that I’d stabbed him in the neck.
Q     Well, you realised when he touched his neck and said ‘You stabbed me’ didn’t you?
A     Yes, I did.
Q     Were you concerned at that point that he had a serious injury?
A     I wasn’t too sure.
Q     Were you concerned that he might have a serious injury?
A     Yes.
Q     You understood, didn’t you, that it was a serious situation?
A     I wasn’t too sure.
QYou understood that it was a serious situation for a person to be stabbed in the neck?
A     I wasn’t even thinking like that.
QDid you understand that that was a serious situation for someone to be stabbed in the neck?
A     I wasn’t thinking.
Q     Did you think about the seriousness of his injury when you saw it bleeding?
A     Yes, I did.
Q     Did you stab him again?
A     It was a twice motion what I had done and I had my eyes closed.
Q     After that did you stab him again?
A     When he had me around the neck, yes.
Q     How did you stab him?
AI had the knife up and then I came down with it (INDICATES) at the moment that he had his hand around my throat.
Q     How was he positioned in relation to you?
AHe had me against the door, but he had one hand where it came off and put it around my throat.
Q     Which hand did he put around your throat?
AHis – I’m pretty sure it would have been his left hand because he was going over the top with his right hand to get the knife.
Q     Where did you stab him?
A     I just came down with the knife (INDICATES) so I didn’t know where it went in.
Q     How many times did you come down with the knife?
A     I think only once.
Q     Did you feel the knife make contact with him?
A     No, I only just came down (INDICATES) so I don’t know.
Q     You say you only ‘just came down’, did you feel anything?
A     No.
Q     What happened to the knife?
AThen I put it back up in the air and then that’s when James grabbed my wrist and then came down with my wrist and then tried to get the knife into me.
Q     The knife made no contact with you?
A     No, it came so close.
Q     Did you stab him again?
A     No.
QAfter you’d stabbed Mr [K] in the neck and when you brought the knife down the second time, what area of his body did you bring it down to?
A     I’m not too sure, I just came down like that (INDICATES) as he was in front of me.
Q     Can you give us an idea of the area of his body where it came down to?
AI’m unsure. It could have been either the back of him, to the side – I’m not too sure.
Q     How many times did you bring it down?
A     I’m pretty sure only once.
Q     Can you explain how Mr [K] received a stab injury to the back of his neck?
A     No.
Q     Can you explain how Mr [K] received a stab injury to the left side of his jaw?
A     No.
Q     Can you explain how Mr [K] received the stab injury to his left bicep?
A     No …
The forensic evidence of the injuries suffered by Mr K
Further, as recounted in the respondent’s outline of argument, the objective forensic evidence established multiple stabbings: “The applicant stabbed Mr K some six (possibly seven) times; namely, twice in the right side of the neck, once in the left side of the face, once in the back of the neck, once in the left shoulder blade and once in the left bicep.”
Again, taking the most favourable view for the applicant when the Judge has declined to leave provocation to the jury, the very fact that her evidence does not account for that many stabbing injuries may be indicative of a loss of self-control and associated loss of memory of the short period of time in question. Although not as frenzied an attack as in The Queen v R, the words of King CJ in that case still have present application:[39]
I think also that it was open to a reasonable jury to conclude that this appellant did lose her self-control and that she killed while in that state. The ferocity of the attack and the words and actions which accompanied it, as described by the appellant, are suggestive of loss of control. The appellant in her evidence did not expressly describe her state of mind in terms of loss of self-control, but that is not necessary: Lee Chun-Chuen v The Queen. Loss of self-control can be shown by inference instead of direct evidence: Lee Chun-Chuen v The Queen, at p 233; R v Hopper; Kwaku Mensah v The King; Sreckovic v The Queen. There is sufficient, in my opinion, in the circumstances of the killing and the account given by the appellant to enable a jury, if it thought proper, to infer that the appellant killed at a time when she had lost her self-control. [Citations omitted]
[39] (1981) 28 SASR 321, 327.
Similarly, in Johnson v The Queen, Murphy J made the important point that we are not dealing here with a matter of law but rather a matter of fact for the jury; it is open to a jury to conclude that a frenzied “disproportionate” attack may indicate a loss of control whereas a more moderate response may indicate that there was no loss of control. His Honour stated:[40]
There is a pronounced tendency in this (as in some other branches of the law) for judges’ opinions on facts and inferences from facts to be treated as propositions of law. Contrary to some opinions, it would be open to a jury to find that a disproportionate response was strong evidence of loss of self-control, and that a proportionate response tended to disprove loss of self-control.
[40] (1976) 136 CLR 619, 670.
Here, Mr K’s evidence of the applicant “yelling” and “breathing heavily” together with the evidence that the applicant apologised to him; and that she called an ambulance on her mobile telephone just after the stabbings, could all cumulatively suggest that the stabbings occurred in a moment when she was not in control of her actions.
The objective test for provocation
As was stated in Stingel v The Queen,[41] the function of “the ordinary person” of the common law of provocation “is to provide an objective and uniform standard of the minimum powers of self-control which must be observed before one enters the area in which provocation can reduce what would otherwise be murder to manslaughter.” However, the Court there emphasised the caution that must be exercised in not leaving provocation to the jury:[42]
… the ultimate question whether the prosecution has proved the absence of provocation is a question of fact for the jury alone. That being so, a trial Judge should be conscious of the limited scope of the preliminary “question of law” whether there is material in the evidence “capable of constituting provocation” and of the need to exercise caution before declining to leave provocation to the jury in a case such as the present where it is sought to rely on a defence of provocation or failing to do so in a case where, even though provocation is not raised by the accused, there is material in the evidence which might arguably be thought to give rise to a defence of provocation …
[41] (1990) 171 CLR 312 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ).Similarly, in Masciantonio v The Queen (1994-1995) 183 CLR 58, Brennan, Deane, Dawson and Gaudron JJ stated at 66 that the objective test “lays down the minimum standard of self-control required by the law”.
[42] (1990) 171 CLR 312, 334 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ).
In Lindsay v The Queen, the Court approved Stingel and the plurality added:[43]
[27] In Stingel, the Court disavowed that the threshold test blurs the functions of judge and jury: within the area in which it is open to find that the prosecution has failed to negative provocation, the question is for the jury alone. Importantly, the Court emphasised the “limited scope” of the threshold question of law and the need to exercise caution before declining to leave provocation. While the Court endorsed the relevance of contemporary attitudes and conditions to the threshold question, no question of a shift in those attitudes or conditions was raised by the evidence in Stingel.
[28] There is an evident need for caution before a court determines as a matter of law that contemporary attitudes to sexual relations are such that conduct is incapable of constituting provocation. The partial defence recognises human frailtyand requires that the gravity of the provocation be assessed from the standpoint of the accused, taking into account his or her history and attributes. Assessment of the response of the ordinary person to the outrage which the provocative conduct might have engendered in the accused will usually depend upon a range of possible findings. It is this recognition that informed the majority’s conclusion in Green that a reasonable jury could have entertained a reasonable doubt that the prosecution had negatived provocation. [Citations omitted]
[43] (2015) 89 ALJR 518, 526.
The gravity of provocative conduct is to be assessed having regard to the personal characteristics of the accused when considering both the subjective and objective tests. In Stingel v The Queen, the High Court stated:[44]
[44] (1990) 171 CLR 312, 325-326 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ).
The central question posed by the objective test … obviously cannot be answered without the identification of the content and relevant implications of the wrongful act or insult and an objective assessment of its gravity in the circumstances of the particular case. Conduct which may in some circumstances be quite unprovocative may be intensely so in other circumstances. Particular acts or words which may, if viewed in isolation, be insignificant may be extremely provocative when viewed cumulatively. Thus, in Moffa, where the deceased’s insulting conduct had culminated in the throwing of a telephone at the applicant, Gibbs J commented:
However, it is no doubt right to infer that the throwing of the telephone was only the last straw that caused the applicant’s control to collapse. In any case, in deciding whether there is sufficient evidence of provocation, it is necessary to have regard to the whole of the deceased person’s conduct at the relevant time, for acts and words which considered separately could not amount to provocation may in combination, or cumulatively, be enough to cause a reasonable person to lose his self-control and resort to the kind of violence that caused the death. Everything that the deceased said and did on 21st August must therefore be considered in deciding whether there was provocation.
In the same case, Barwick CJ referred to the “totality of the deceased’s conduct” and pointed out that “a jury would be entitled to view the situation in its entirety”.
Even more important, the content and extent of the provocative conduct must be assessed from the viewpoint of the particular accused. Were it otherwise, it would be quite impossible to identify the gravity of the particular provocation. In that regard, none of the attributes or characteristics of a particular accused will be necessarily irrelevant to an assessment of the content and extent of the provocation involved in the relevant conduct. (Emphasis added; citations omitted)
And in Masciantonio v The Queen, the plurality stated:[45]
The test involving the hypothetical ordinary person is an objective test which lays down the minimum standard of self-control required by the law. Since it is an objective test, the characteristics of the ordinary person are merely those of a person with ordinary powers of self-control. They are not the characteristics of the accused, although when it is appropriate to do so because of the accused’s immaturity, the ordinary person may be taken to be of the accused’s age.
However, the gravity of the conduct said to constitute the provocation must be assessed by reference to relevant characteristics of the accused. Conduct which might not be insulting or hurtful to one person might be extremely so to another because of that person’s age, sex, race, ethnicity, physical features, personal attributes, personal relationships or past history. The provocation must be put into context and it is only by having regard to the attributes or characteristics of the accused that this can be done. But having assessed the gravity of the provocation in this way, it is then necessary to ask the question whether provocation of that degree of gravity could cause an ordinary person to lose self-control and act in a manner which would encompass the accused’s actions.
[45] (1995) 183 CLR 58, 66-67 (Brennan, Deane, Dawson and Gaudron JJ).
Was the objective test satisfied here?
Once again, it is necessary to stress that the objective test is to be addressed by reference to the most favourable basis for the applicant that was open to the jury as distinct from attempting to predict what the jury would have found. Here that most favourable basis for the applicant is that:
·she was a 30 year old woman who was ten weeks pregnant;
·she wished to have the child;
·she was confronted by her estranged husband who had lost his temper and was seriously assaulting her, including by delivering blows to her abdomen;
·she knew that about five weeks before, her husband had learnt of the pregnancy and had threatened to kill the unborn baby by punching her in the abdomen;
·the emotion of fear led to loss of self-control and she took up a knife and stabbed at her husband with her eyes closed, attempting to kill him;
·she happened to inflict a serious injury to her husband’s neck; and
·she then regained control, apologized and telephoned an ambulance.
With all respect to those who may differ, I have no doubt that provocation should have been left to the jury.
The duty of prosecution counsel
In the present case, it may be that the failure of prosecution counsel to draw the Judge’s attention to the need to direct on provocation may have been due to the fact that she believed it highly likely that the jury would wholly disbelieve the applicant and, in that sense, there was no case of provocation. A difficulty in focussing on the distinction between what the jury was likely to do (on the one hand) and what was open to the jury to do (on the other hand, and which is the applicable test for leaving provocation to the jury) may also have been exacerbated by the fact that the possibility of provocation arising by virtue of fear alone is unusual and the subject of comparatively little discussion in the authorities.
But in any event, it is unfortunate that the Judge was afforded no assistance from either prosecution counsel or defence counsel.
In the recent decision in R v McCarthy,[46] a conviction of murder was set aside in circumstances where both defence and prosecution counsel at trial suggested that provocation not be left to the jury and the observation there as to the duty of Crown counsel is worth repeating:[47]
[201] This exchange [between counsel for the parties and the trial Judge] illustrates the difficult position in which a trial Judge is placed when the accused makes a strategic choice to eschew a manslaughter partial defence in the hope of securing an outright acquittal. Of course, an accused has little to lose by taking that course because a murder conviction will almost certainly be set aside if directions on provocation are not given when there is supporting evidential material which might reasonably be acted on by the jury.
[202] When that strategic course was suggested by the accused, it was the responsibility of the prosecution counsel to draw the Judge’s attention to any evidential material which raised the partial defence of provocation to remind the Judge of his obligation to leave provocation manslaughter to the jury irrespective of the wishes of counsel.
[203] Further, it is wrong to abstain from leaving provocation manslaughter on the basis that it is “inherently inconsistent” with a primary defence of self-defence. The matter of provocation manslaughter being inconsistent with a primary defence of self-defence is at the very heart of the Pemble doctrine, with many of the cases emphasising that that very scenario does not alter the duty of the Judge to leave provocation manslaughter if it arises on the evidence. After all, the jury might well reject the defence of self-defence and the prosecution in this case was earnestly urging the jury to do that very thing; as it happens, they did.
[46] [2015] SASCFC 177.
[47] R v McCarthy [2015] SASCFC 177.
Conclusion
There can be no application of the proviso here. The conviction must be set aside and a retrial ordered.
Orders
I would order that:
1An extension of time within which to appeal be granted.
2Permission to appeal be granted.
3The appeal be allowed and the conviction be set aside.
4There be a new trial on the Information.
LOVELL J.
Overview
The applicant was found guilty, after a trial by jury, of attempting to murder her husband by stabbing him in the neck with a knife. When giving evidence the applicant claimed she was acting in self-defence. Counsel for the applicant initially asked the trial Judge to leave the issue of provocation to the jury. The Judge indicated that he did not intend to do so but gave counsel an opportunity to make submissions. The following morning counsel for the applicant agreed with the Judge that provocation should not be left as there was “no factual basis for it”.
The applicant now argues that the issue of provocation should have been left to the jury. For the reasons that follow, the trial Judge was correct in his decision not to leave the issue of provocation to the jury.
Background

The applicant and her husband commenced a relationship in 2002 and eventually married in November 2003. They built a house in 2007. Their son was born in November 2008.
It was common ground that up until November 2008 the relationship was reasonably good. They had an active sex life which included “sex parties”. In December 2009 the applicant moved out of the matrimonial home and lived with her mother for a short period of time. The applicant said that she moved out because he had become violent and she was confused about the relationship. She moved back in around February 2010.
At trial there was much conflicting evidence about the nature of the relationship. There were allegations that both were physically violent towards each other. Mr K admitted to some violence. The applicant admitted giving Mr K a “black eye” but in different circumstances than that alleged by Mr K. It was common ground that there were marital separations and that both had an extra marital affair. They were of course all important background matters for the jury to consider but it is unnecessary for the disposition of this appeal to consider them further.
By the end of 2013 they were living apart. Mr K was involved with another woman and the applicant wanted to get back together with Mr K. It was common ground that around the end of 2013, despite the fact that they were living apart, they continued to have a sexual relationship.
The applicant fell pregnant to Mr K in January 2014. She told Mr K of the pregnancy on 25 January 2014. Mr K reacted very badly to the news of the pregnancy admitting that he was very angry when told. He agreed he said to the applicant that “I could punch you in the stomach and the baby would go away”. The applicant confirmed he had said something like that and also that he had referred to her as a “manipulating bitch”.
The prosecution alleged that the applicant, during the latter part of 2013 and early 2014, was acting obsessively about them resuming their relationship; the applicant admitted that she was trying to get their marriage to work but denied she was acting obsessively. It was common ground that the applicant was frustrated about their relationship in the months leading up to the stabbing. Mr K would not or could not make a decision and wanted to leave “the door half open”.
In the few days before the stabbing the applicant was frustrated also with the failure of Mr K to contact their young son.
Events of 5 March 2014
In the days leading up to 5 March 2014 the applicant and Mr K were arguing about access for Mr K to their son, K. On 3 March 2014, K unfortunately broke his arm at school. When informed, Mr K made no effort to see his son and so the applicant took K to see him at his work. Arrangements were made for Mr K to look after K the following morning so that the applicant could go to work.
Evidence of Mr K
Mr K attended her home at 4.20 am as arranged. The applicant was up and getting ready to go to work.
Mr K said that when he entered the house he said “I’m here, [K] is fine, you can go to work now, I’m early”. He said that he did not want to talk to her. The applicant wanted to talk about their relationship.
Mr K went into the bedroom and put his backpack down. He took his shoes off and got into the bed where K was asleep. The applicant was standing at the end of the bed saying she wanted to know whether there would be an “us one day”. Mr K said it was the same question, repeated, and he got sick of it and got out of the bed. Mr K said that he said to the applicant, “just treat it like I’m never coming back” and told her to go to work. He put his shoes on then she walked around and blocked him from going out of the room. She eventually ran to the door and blocked the doorway. The applicant was facing Mr K. Mr K said he saw the applicant reach to the right and grab a knife from the top of a piece of furniture (referred to as a “tallboy”). He said she seemed to yell, call out and then breathe heavily. He described it as being like a boxer psyching herself up to go and have a fight. At that time K called out to him and he turned his head to the left to see what was going on when he felt a punch or really hard hit to the neck that was repeated. He said he could remember bringing his arms up but he continued to be stabbed. He said at that stage he had no idea as to what had actually occurred. He could see blood on the wall and he saw blood shooting out from his neck. He put his hand up to his neck and saw blood on his hand. He then got his phone out of his pocket but as he was unable to swipe it he threw it on the bed and asked the applicant to call an ambulance.
Evidence of the applicant
The applicant’s evidence differed substantially.
The applicant said that Mr K arrived and said “Don’t talk to me or I’ll leave”. She agreed that she wanted to talk about their relationship. Mr K went to the toilet and she went and got her cereal which she put in a cup. When he came back she said that she had a conversation with Mr K and eventually he said “treat it like I'm never coming back”. She said that she was fine with that position. K their son had woken up and she said to Mr K “tell your son now that that’s it and that’s the end of us”. Mr K then put his shoes on but she did not think he was about to leave the house. As he walked past the end of the bed he pushed her twice to the chest and into the “tallboy” furniture. She followed him to the kitchen area and said to him “tell me the truth”. Mr K punched her to the chest with two fists causing her to move back a few steps. She went to the kitchen to empty her cereal cup and then back towards the bedroom. She said Mr K darted in front of her, punched her to the chest and then to the stomach. They both ended up in the bedroom when she grabbed the knife. She told him to stay away and then he punched her in the stomach again. She closed her eyes, brought the knife down intending only to stab him in the arm. After she stabbed him Mr K pushed her into the walk-in-robe. She fell by the door and he pinned her to the bedroom door and kneed her to the legs so she brought the knife up again. Mr K grabbed her throat and she came down with the knife from behind. She said that Mr K punched her in the head, grabbed her wrists and tried to stab her in the breast and stomach and said that he was going to kill her and the baby.
Law of provocation
It was accepted by both parties that the common law of provocation taken in conjunction with section 270AB of the Criminal Law Consolidation Act 1935 (SA) could operate to reduce a charge of attempted murder to attempted manslaughter. At common law, a jury may return a verdict of manslaughter instead of murder for reasons of provocation. The High Court recently restated the law of provocation in Lindsay v R[48] where the plurality said:
Provocation at common law operates to reduce what would otherwise be murder to manslaughter. Although it is common to describe the doctrine as a "partial defence", the true position is that the unlawful intentional killing of another under provocation is not murder. The malice that is implicit in the intention to kill or to do grievous bodily harm is denied in the case of a killing done under provocation. There are two conditions for the operation of the doctrine: first, the provocation must be such that it is capable of causing an ordinary person to lose self-control and act in the way the accused did (the objective limb); and second, the provocation must actually cause the accused to lose self-control and the killing must take place while the accused is deprived of his or her self-control (the subjective limb). The focus of the objective limb is upon the capacity of the provocation to cause an ordinary person to lose self-control and form the intention to kill or to do grievous bodily harm. Where the evidence raises the issue, the prosecution must prove that the killing was not done under provocation. The prosecution may do so by negativing beyond reasonable doubt either of the limbs of the doctrine.
(Footnotes omitted)
[48] (2015) 319 ALR 207 [15].
To reduce murder to manslaughter a jury would have to allow as a reasonable possibility that the accused caused the death of the deceased as a result of a sudden and temporary loss of self-control in respect to provocative conduct on the part of the deceased, (the subjective limb) and that the provocative conduct, measured in gravity by reference to the personal situation of the accused, could have caused an ordinary person of similar age to form an intention to kill or do grievous bodily harm and to act on that intention as the accused did (the objective limb).[49]
[49] Lindsay v R (2015) 319 ALR 207 [15]; Masciantonio v The Queen (1995) 183 CLR 58; Stingel v The Queen (1990) 171 CLR 312.
Where provocation is raised on the evidence the prosecution must prove that the killing was not done under provocation and it may do so by negativing beyond reasonable doubt either limb of the defence.[50]
[50] Lindsay v R (2015) 319 ALR 207 [15].
Whether the subjective and objective limbs are negatived is a question of fact. It is a question of law whether there is material in the evidence which sufficiently raises the issue of provocation justifying leaving the partial defence for the jury’s consideration.[51] As the majority in Lindsay v R stated:[52]
… Whether the objective limb is satisfied is a question of opinion or, to adopt Glanville Williams' classification, it is a question of "evaluative fact". The threshold question of law is whether there is material in the evidence which sufficiently raises the issue to leave the partial defence for the jury's consideration. 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.
(Footnotes omitted)
[51] Lindsay v R (2015) 319 ALR 207 [16].
[52] Lindsay v R (2015) 319 ALR 207 [16].
The question for the trial Judge and the Appellate Court is the same: whether on the version of events most favourable to the accused based on the evidence, a jury acting reasonably might fail to be satisfied beyond reasonable doubt that the killing was unprovoked in the relevant sense.[53]
[53] Stingel v The Queen (1990) 171 CLR 312, 334; Masciantonio v The Queen (1995) 183 CLR 58, 67-68; Lindsay v R (2015) 319 ALR 207 [26].
It is also well established that if provocation is open on the evidence the Judge must direct the jury on it even if defence counsel does not wish that to occur. The failure of an accused person to testify to loss of self-control is not fatal to a defence of provocation or a case in which self-defence is raised; it must be left despite the accused failing to give evidence that he or she was provoked.[54]
[54] Van Den Hoek v The Queen (1986) 161 CLR 158.
Discussion
This appeal focuses attention on two main issues. First, what is meant by the expression “taking the evidence at its most favourable to the applicant”. Secondly, the identification of the wrongful act or insults said to amount to the “provocative conduct”. I accept that when addressing these questions, it is open to consider a combination of evidence from the applicant and Mr K but only if that evidence is logically capable of co-existing. The only direct evidence of the events of 5 March 2014 came from Mr K and the applicant. I only intend to deal with the “objective” limb of provocation as in my view the appeal fails at that hurdle.
The prosecution case was that the applicant lost her self-control and did so because Mr K had told her that, in effect the relationship was over. The applicant of course did not give evidence of having lost control. I accept that the jury would be entitled to infer a loss of control despite the absence of direct evidence from the applicant.[55] Mr K’s evidence of how the applicant behaved shortly before he was stabbed could be interpreted as indicating a loss of control. For the purpose of this appeal I am prepared to proceed on the assumption that there was evidence capable of supporting the inference of a loss of control sufficient to go before the jury.
[55] Van Den Hoek v The Queen (1986) 161 CLR 158, 169.
I turn to the objective element of provocation.
As stated in Lindsay v R[56] 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.
[56] (2015) 319 ALR 207 [26].
As was stated in Stingel v The Queen:[57]
… The function of the ordinary person of s 160 is the same as that of the ordinary person of the common law of provocation. It is to provide an objective and uniform standard of the minimum powers of self-control which must be observed before one enters the area in which provocation can reduce what would otherwise be murder to manslaughter. While personal characteristics or attributes of the particular accused may be taken into account for the purpose of understanding the implications and assessing the gravity of the wrongful act or insult, the ultimate question posed by the threshold objective test of s 160(2) relates to the possible effect of the wrongful act or insult, so understood and assessed, upon the power of self-control of a truly hypothetical “ordinary person”. Subject to a qualification in relation to age (see below), the extent of the power of self-control of that hypothetical ordinary person is unaffected by the personal characteristics or attributes of the particular accused. It will, however, be affected by contemporary conditions and attitudes.
[57] (1990) 171 CLR 312 [21].
It is necessary to determine the “sting” of the provocative conduct. There was some common ground between Mr K and the applicant.
Both agreed that there was discussion about the relationship ending. That discussion had been clearly going on for some months. What occurred on the day of the offence was that Mr K purported to make a final decision. This discussion needs to be seen against the background of their relationship. Although provocation can be constituted by words alone, in my view it was not open for the Judge, when considering the objective limb of provocation, to leave provocation to the jury simply on the basis that Mr K had said to the applicant that their marriage was finally over.
The test to be applied by the trial Judge was whether that 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 and to act on that intention as the accused did. The evidence of the “end of the relationship” by itself, and the applicant’s reaction to it falls so far below the minimum limit of the range of powers of self-control which must be attributed to any hypothetical 30 year old means that provocation was not required to be left to the jury on that basis alone.
For provocation to be left in relation to the objective limb, it had to include the physical acts of violence and in particular the punches to the stomach of the applicant by Mr K. Such violence could have caused an ordinary person to be provoked and form an intention to kill. Thus, in theory, there was evidence that would pass the threshold test suggested in Lindsay v R[58] and Stingel v The Queen.[59]
[58] (2015) 319 ALR 207.
[59] (1990) 171 CLR 312.
Here, in relation to the issue of physical violence during this incident, the question of what is meant by the expression of “taking the evidence at its highest for the applicant” can only mean the applicant’s evidence as Mr K denied any such violence.
The two versions of events were diametrically opposed. There were no independent witnesses as to what occurred. There was only one version of events, namely the applicant’s, where such violence was alleged to have occurred. The jury were not entitled, nor could they have been directed to find, in relation to the question of the physical violence some hybrid version of events unless there was an evidential basis to so do; no such hybrid version existed here.
In summary the applicant stated that during the course of the incident Mr K punched her in the chest and stomach, pushed her into a walk-in-robe, punched her in the stomach again, pinned her to the bedroom door, kneed her in the legs, punched her in the head, grabbed her wrists and tried to stab her and said he was going to kill her. She stated that she stabbed Mr K during this attack.
Thus the trial Judge had to consider the question of whether the question of provocation arose on the particular facts of this case. The jury could only consider the question of the physical violence and therefore provocation on the evidence of the applicant.
If the jury were to accept as a reasonable possibility the applicant’s version of events, they had to accept that she acted in self-defence and if her actions were not out of proportion to the threat, acquit her outright. If they accepted that she believed she was acting in self-defence but that the prosecution had proved beyond reasonable doubt that her response was out of proportion to the threat she faced, they had to return a verdict of attempted manslaughter.
If the jury rejected the applicant’s version of events as a reasonable possibility then not only did the question of self-defence fall away there was simply no factual basis on which provocation could have been left.
Initially defence counsel asked for provocation to be left to the jury. After reflecting on the issue overnight defence counsel withdrew his application as he agreed that there was no basis on which provocation could be left. In my view he was correct in doing so.
On the facts of this case the trial Judge’s decision not to leave the issue of provocation to the jury was correct.
I would dismiss the appeal.