R v Singh

R v SINGH
[2003] SASC 344
Court of Criminal Appeal: Mullighan, Debelle and Gray JJ

MULLIGHAN J The appellant was found guilty by verdict of the jury of the murder of his wife, Linda Maree Bartley. He shot and killed her on 22^nd June 2001 at Berri. He appeals against the conviction for murder.
Background
The appellant was aged 37 years at the time of the shooting. He was born in India and arrived in Australia on 6^th October 1996 with a visitor’s visa. He met Ms Bartley in Sydney in October 1997 and went to stay with her at Renmark for a short time in December that year. He commenced to live with her in January 1998. They lived apart for about one and a half months and then married on 29^th November 1998. They separated during the next year. A child of the marriage, Savvannah, was born after the separation on 5^th September 1999.
In view of issues raised on this appeal it is necessary to mention in some detail the history of the relationship between the appellant and Ms Bartley after the separation.
The evidence at the trial discloses a long history of acrimony between the appellant and his wife. There was evidence of him being physically violent towards her and there were legal proceedings in the Magistrates Court of South Australia, pursuant to the Domestic Violence Act 1994 and between them in the Family Court of Australia and the Federal Magistrates Court of Australia. An interim domestic violence restraining order was made against the appellant in his absence by the Magistrates Court of South Australia sitting at Berri on 5^th January 2000 restraining him from entering the premises at which Ms Bartley lived at 8 Katekar Court, Renmark or any other premises at which she lived, from assaulting, harassing, threatening or intimidating her, from contacting, communicating with, or approaching her directly or indirectly or from causing or threatening to cause any injury to her or threatening to damage her property. It was also ordered that any firearm in his possession be confiscated and held by the Registrar of Firearms and that any licence or permit to be in possession of a firearm held by the appellant be suspended. The appellant appeared in that Court on 13^th January 2000 and that order was confirmed with a variation that it was subject to any order made in the Family Court and another variation which is of no consequence for present purposes. The appellant also made an application for a restraining order against Ms Bartley but no order was made as the issues between them were to be heard by the Family Court. Each of them disputed the allegations made by the other.
The appellant was seeking access to Savvannah. On 17^th January 2000 the Family Court of Australia made an order that the child reside with Ms Bartley and that she and the appellant attend a conference with a counsellor or welfare officer to discuss the care, welfare and development of the child and to attempt to resolve any differences between them regarding the child. On 28^th January 2000 that Court made an order restraining the appellant from removing or attempting to remove the child from the Commonwealth of Australia. The residence order was confirmed and an order was made that Ms Bartley have the sole responsibility for the day to day care, welfare and development of the child. It was further ordered that Ms Bartley give, and the appellant to have, contact with the child for two periods each week of two hours’ duration to be supervised by Mr Lawes, the stepfather of Ms Bartley. Later the number of periods was increased to three occasions each week.
These periods of contact were to take place at the home of Mr Lawes at Paringa in the Riverland. He lived with Ms Bartley’s mother. Mr Lawes supervised periods of contact. He told the jury that at first the contact between the appellant and the child was satisfactory but the child would cry when the appellant tried to pick her up. He said that he tried to reason with the appellant but his response was that he was the father of the child and he knew what he was doing. Mr Lawes described the mood of the appellant as almost nasty on these occasions. Ms Bartley took the child to Mr Lawes on each occasion but left before the appellant arrived. These occasions of contact continued for about two months. According to Mr Lawes, they should have occurred on three occasions each week but the appellant did not always attend and his contact with the child became less frequent.
On 29^th May 2000 the Family Court varied the order so that the contact with Savvannah would take place at the appellant’s place of residence at Berri and that the supervisors be Mr Daniel Singh, who is no relation to the appellant, or Ms Warland, who was a friend of Ms Bartley. As with the previous order, Ms Bartley was restrained from telephoning either of the supervisors during the periods of contact. The appellant and Mr Singh were restrained from removing the child from the appellant’s residence.
The appellant had contact with Savvannah pursuant to this order. Mr Singh and Ms Warland alternately supervised the contact each week. According to Ms Warland there were disagreements and arguments between the appellant and Ms Bartley on occasions. On one occasion, according to Ms Warland, the appellant kicked the door of her motor car on to Ms Bartley’s leg as she was entering the vehicle and the police were contacted.
Mr Singh told the jury that he supervised the appellant’s contact with the child on about three or four occasions at the house of the appellant. He said that most of the time the child was crying and it was very hard to settle her.
Eventually Ms Bartley refused to allow the appellant to have contact with the child. She had not sought to discharge the order of the Family Court. Mr Rodda was the solicitor who represented Ms Bartley in proceedings in the Family Court and the Federal Magistrates Court from about April 2000. After that time there were regular hearings in the Family Court. He told the jury that the relationship between Ms Bartley and the appellant was tense and acrimonious. On 19^th August 2000 there was a hearing in the Family Court in Adelaide. After the hearing, the appellant approached Mr Rodda and said words to the effect, “You can tell your clients they’ll be taking the bus down here soon”. I suspect that the significance of that remark is that the appellant intended to continue his efforts to see the child and therefore Ms Bartley and her family would have to continue to travel to Adelaide which, according to Mr Lawes, caused difficulty for them. On another occasion, according to Mr Rodda, the appellant said to him words to the effect, “That’s it, if it has to be guns, it will be guns”. The appellant was agitated and angry.
On 18^th January 2001 the appellant made an application to the Family Court alleging that Ms Bartley had contravened the contact orders made on 23^rd February 2000 and 29^th May 2000. He had not seen the child since after the middle of 2000. That application was transferred to the Federal Magistrates Court at Berri and was not heard until 21^st June 2001, the day before Ms Bartley was killed.
The appellant was experiencing some difficulty regarding his status as a migrant. From time to time he was granted permits which allowed him to remain in Australia. On 7^th January 2000 his application for a visa to allow him to remain in Australia was refused. On 7^th May 2001 he was granted a bridging visa which allowed him to remain in the country until 7^th August 2001 on which date he was liable to be deported unless the Minister of Immigration ordered otherwise or he made a successful application for a visa.
On 23^rd May 2001 the appellant made an application to the Women’s and Children’s Hospital for access to the personal records of Savvannah indicating that he required such access before 18^th June 2001 because of the hearing in the Federal Magistrates Court on 21^st June 2001. The child had experienced medical problems since an early age. He received a letter from the Hospital dated 19^th June 2001 informing him that there had been an “information constraint” placed upon the child’s information in January 2000 but that constraint had been removed. Information was provided to him which revealed the various appointments had been made for the child in 2000 and 2001, some of which had been cancelled. It was noted in the order of the Family Court made on 29^th May 2000 that Ms Bartley would keep the appellant informed of all developments and changes in the health of the child but the appellant told the jury she had not done so.
After a hearing in the Family Court in November 2000, the appellant telephoned Mr Lawes and left messages on his answering machine. The tape containing those messages was admitted into evidence. The appellant told the jury that he made these telephone calls because he wanted to see Savvannah. There were 16 messages in all. Some of them contain profane, abusive and offensive remarks. On two occasions he asserted that he had attended for a contact visit but the child was not present. It appears from those messages that the appellant was in an emotional state about not seeing the child. In one message he said, “Okay. Bye Bye. Let me see the child you have no trouble. You don’t let me see the child you’re asking for trouble”. On another occasion he said that the message was for Savvannah. He spoke affectionately to, or about her, but offensively about Ms Bartley. The appellant told the jury that he left those messages on the answering machine because he wanted to see the child.
On 21^st June 2001 the application for contravention of the contact order came before the Federal Magistrates Court at Berri. The Court found that Ms Bartley had contravened the orders and that she had “behaved in a way that showed a serious disregard for her obligations under the primary order”. The penalty imposed upon her was that she enter into a recognizance in the sum of $1,000 for a period of 18 calendar months, the condition of which is that she comply with all orders of the Family Court and the Federal Magistrates Court in respect of Savvannah. Ms Bartley entered into that recognizance before a Federal Magistrate on the same day.
Before turning to the events of 22^nd June 2001, I mention the evidence given by the appellant at the trial as to the events preceding the shooting. He told the jury that he did not have any difficulty in seeing Savvannah for the first three months after she was born. He said that later Ms Bartley would not let him see the child so he took proceedings in the Family Court. Supervised access was ordered but there were problems. When at Mr Lawes’ house the child was usually asleep. On occasions Mr Lawes played rock music and usually he was in his work clothes or dirty. The appellant said that Mr Lawes was not friendly towards him. Mr Lawes denied that there was a concerted effort to frustrate the appellant’s contact with the child.
He said that contact with the child was not given to him and after the supervisors were changed by order of the Family Court made on 29^th May 2000, he was again refused contact. The proceedings in the Family Court continued. The appellant told the jury that he attended at that Court on about 50 or 60 occasions and that he appeared before a Judge on at least 20 occasions. He said that Ms Bartley told him that she would keep breaching the Court order until he was “deported” or he was “broken”.
According to him, the application made on 18^th January 2001 was the second such application which he made. When that application came on for hearing, he said he had to wait all day and the following day but the hearing did not proceed. He telephoned his wife and she was at home. He was angry. He said that although the order of the Court provided for contact with the child for two hours, on 31^st March 2001 he was allowed by Ms Bartley, through her solicitor, to see her for only five minutes which was his first contact with her since 21^st June 2000.
The appellant claimed that Ms Bartley said things to him such as the child cries when he feeds her. He said that when he had contact the child started crying so that Ms Bartley could take her back. He also said that Ms Bartley told the Family Court that the child cried when she gave him contact, but she had not been giving him contact. He gave evidence of Ms Bartley promising to take the child to his house on 19^th June 2000 but then contacting him by telephone and saying that the child was ill. On 21^st June 2000, she took the child from him after contact for only 10 minutes.
On the night after the order of the Federal Magistrates Court was made, on 21^st June 2001, the appellant told the jury he went to Mr Singh’s house and arranged for him to act as the supervisor. He was happy about the prospect of seeing Savvannah the next day and they celebrated and drank some alcohol. Ms Bartley contacted him by telephone and abused him. She said she wanted Ms Warland to supervise the access but the appellant refused. He told her that he wanted Mr Singh to be the supervisor.
The nature of the relationship between the appellant and Ms Bartley, the determination of the appellant to see Savvannah and the nature of problems which arose during his contact with her may be seen from this brief history of events prior to the shooting. The appellant attributed responsibility to Ms Bartley for the child crying on contact occasions and asserted that it afforded an excuse to bring contact to an end.
The events of 22^nd June 2001
According to Mr Singh, the appellant contacted him during the morning of 22^nd June 2001 and told him that he was to be the supervisor. He met the appellant near his house and they drove to near a local landmark at Berri known as “The Big Orange”. The appellant told him that, if he could, he wanted to take the child away. He asked him to give him enough time before ringing the police so that he could run away. Mr Singh refused. On previous occasions he had said that he wanted to take the child away but Mr Singh did not take him seriously. They parked the car near The Big Orange.
Ms Warland told the jury that she went to Ms Bartley’s house at about 2.00 pm because she knew contact with the child had to be given and she knew Ms Bartley wanted someone to go with her. They drove to The Big Orange with Savvannah. They stopped on the way because they were early. When they arrived at The Big Orange, the appellant and Mr Singh were there. Ms Bartley parked her vehicle near where they were standing by the vehicle which they were using.
I propose to relate what then happened through the evidence of Ms Warland, Mr Singh and the appellant.
According to Ms Warland, the appellant was standing near the passenger’s front door of his vehicle and Mr Singh was standing near the boot. Both women alighted from their vehicle. Ms Warland went to Mr Singh so that she could give him a telephone number in case the child did not calm down. She noticed that the appellant and Ms Bartley were talking near the rear of her vehicle on the passenger’s side. She said they did not seem to be aggressive towards each other. Ms Warland then went to Ms Bartley’s motor car to get her cigarettes. She began to smoke a cigarette. Ms Bartley handed the child to the appellant. The child had by then commenced to cry. The appellant carried her towards his vehicle and she began to scream. He had walked about half way between the two vehicles. He walked back and handed the child to Ms Bartley. He spoke to her. The appellant said that Ms Bartley always used the child’s crying against him and she said that the child always cried when with him. She described the tone of both of them as defensive.
Ms Bartley asked the appellant if Ms Warland could be the supervisor of his contact with the child and he agreed. She then handed the child to Ms Warland who took her to the rear passenger’s door of the appellant’s vehicle. She put her in the vehicle and started to strap her into the seat. By that time the appellant had walked to the driver’s door of the vehicle and Ms Bartley was at the driver’s door of her vehicle. The child then vomited. Ms Warland ran back to the passenger’s front door of Ms Bartley’s vehicle. She entered the vehicle and asked Ms Bartley for tissues. Ms Bartley was standing by the open driver’s door. Ms Warland then ran back to the appellant’s vehicle and tended to the child. She again vomited and was crying. Ms Bartley told her to get the child out of the appellant’s vehicle and spoke with a note of urgency. Ms Warland grabbed the child and ran to Ms Bartley’s vehicle and put her in the seat at the back of the vehicle. She was trying to strap her into the seat. Ms Bartley was running to the driver’s door of her vehicle.
Ms Warland said that she heard the appellant scream. He ran from the back of his vehicle to where she was sitting with the child. He said to Ms Bartley, “I told you not to fuck with me”. At that time he was standing near the front driver’s door of Ms Bartley’s vehicle. He was angry. Ms Bartley did not respond. Ms Warland then heard a bang and Ms Bartley doubled over. The appellant yelled at Ms Warland to get the child back into his vehicle and she did so. She heard another shot. She did not see where the accused was standing at that time. There was not a long time between the two shots. She then saw Ms Bartley running from the back of her vehicle. She ran behind Mr Singh who was screaming at the appellant words to the effect, “Singh, what are you doing, no, stop”. The appellant was still on the driver’s side of Ms Bartley’s vehicle. Ms Warland thought that Ms Bartley said, “Please don’t hurt me, please don’t hurt me” and she was begging Mr Singh to help her. Savvannah was screaming.
The appellant then told Ms Bartley to drive his vehicle. Ms Warland told the jury that he spoke in a furious tone and Ms Bartley appeared terrified. He went to get into the back seat of the vehicle with the child. As Ms Bartley went to the driver’s door, she faltered and hunched over. The appellant left the vehicle and said, “I’ve been trying to kill you for a long time”. He raised a gun and Ms Warland heard a shot. Ms Bartley fell. Ms Warland ran to Ms Bartley’s vehicle and tried to start it but she could not say for how long. The appellant entered his own vehicle and drove off towards Berri with Savvannah in her seat. Mr Singh was left behind. She looked up and saw the appellant a couple of hundred metres away. He was looking back. Police and an ambulance soon arrived.
It may be seen that Ms Warland told the jury that she heard three shots but other evidence established that Ms Bartley was shot four times.
Mr Singh told the jury that he and the appellant waited at The Big Orange for about ten minutes before Ms Bartley, Ms Warland and Savvannah arrived. Ms Warland brought the child to him. The child was crying. Ms Bartley said that Ms Warland should be the supervisor and Mr Singh said that he would agree. The child was placed in the appellant’s motor vehicle. Mr Singh said that she was crying too hard and she vomited. Ms Bartley said, “Get the child from the car” and approached and said, “I don’t want to - I don’t want to give him child, just pick him up from his car and we are going”. She tried to get the child out of the car. The appellant then became angry. He was sitting in the driver’s seat ready to leave. He then got out of the motor vehicle and started shouting.
The appellant got a gun and shot Ms Bartley. He was nearly behind his vehicle near the rear passenger’s door. Mr Singh said that he had not known that the appellant had a gun. Ms Bartley was running towards Mr Singh when she was shot. At that time he did not realise she had been shot. He thought the accused had a toy gun. He said to the appellant, “Doesn’t matter even if you got a gun. Don’t worry, still going to work it out, all we have to do is go home and we work it out after this”. He said that it was likely that Ms Bartley was behind him.

The appellant was shouting at her and to him. He told Ms Bartley to drive his car and Ms Warland to get in the car. He told Mr Singh to drive Ms Bartley’s car home. He told Mr Singh to “get out from there”. He said to her, “You get it this way, this way”. She moved away from Mr Singh and was walking towards the appellant. He told her that he wanted her to drive. They went behind the appellant’s motor vehicle and the gun went off again. Later, in cross-examination he said that the appellant shot Ms Bartley again as she was about to get into his motor vehicle. Mr Singh said that he then realised it was a real gun. Ms Bartley fell down. He said that he could not see the gun at this stage but it is clear that the appellant was holding the gun. The appellant shot her again while she was on the ground. He told Mr Singh to shut the door of the car and he drove off.
The appellant told the jury that on the way to The Big Orange, he told Mr Singh that he wanted to take Savvannah and spend some time with friends or stay away with her. He said he was trying to persuade Mr Singh to allow him to take the child away but he refused. He wanted to take her to the home of a friend at Bordertown. He said that the child cries a lot and he could have received help at the friend’s place. When Mr Singh refused, he said that he would not take the child away.
Upon arriving at The Big Orange, the appellant and Mr Singh waited for about five to ten minutes until Ms Bartley, Ms Warland and the child arrived. He was not expecting Ms Bartley, because of the restraining order which prevented him from having contact with her, or Ms Warland. The appellant started to walk towards the rear side of his motor vehicle. Ms Bartley said to him, “Singh, can you please wait five or 10 minutes so I can say goodbye” or kiss her and she said that the child was a little upset. The appellant asked Ms Bartley why she was there. He told her she should not be there, that she had told the police she was scared of him and he mentioned the restraining order. She said, “No, I wanted to be here”. Ms Warland then told him that the child was a little upset and suggested that his contact with the child be at a place near The Big Orange. The appellant told her to stay away and not to interfere. He walked to Ms Bartley and picked up the child who was crying. He tried to put her in his motor vehicle and the child screamed. He gave her back to Ms Bartley who tried to settle her. The child stopped screaming. The appellant said he was scared when the child was screaming. Ms Bartley said that the accused should take Ms Warland as the supervisor and he agreed. He asked her to get in his motor vehicle and told Mr Singh that he would drop him home.
Ms Warland put the child in his motor vehicle and the appellant intended to drive. He got into the driver’s seat. The child screamed and spat out something. She did not vomit. He wiped her face and he was going to strap her into her seat. He said that Ms Bartley was screaming. She told Ms Warland to get out of the vehicle and to get the child. The appellant told Ms Bartley to stay away from the vehicle.
The appellant said that he did not want them to take the child. Ms Bartley was talking to someone on a mobile telephone. She was abusive and screaming and she went into his motor vehicle. She hit him with the telephone. He shoved her hand. Ms Bartley took the child from him and pulled her out of the seat. He said that he had no recollection of what happened thereafter except that he was driving his motor vehicle on the highway to Bordertown between Berri and Loxton about 20 kilometres from The Big Orange and the child was with him. He said he had no recollection of shooting Ms Bartley. He said he found the gun in his motor vehicle the next day after a friend, who was undoubtedly Ms Solanki, had told him what had happened. He acknowledged that it was his rifle. He said he had obtained it from a friend in 1998 because he had problems with people threatening him in Renmark. When he moved to Berri after Savvannah was born, he kept the rifle in his motor vehicle. It had been in his vehicle since Christmas 2000.
The appellant told the jury that he did not want to shoot Ms Bartley at any time on 22^nd June 2001 and the rifle was not for her. He said he did not intend to shoot her. He said that he drove to Bordertown but his friend, who was Mr Lorriaux, was not home. He acknowledged that in the course of this journey he replaced the number plates on his motor vehicle with New South Wales number plates. He told the jury that he had acquired them through the same friend from whom he had acquired the rifle and had done so about a month before the shooting. He said that he had acquired the number plates in case he had the chance to take the child away from the Riverland and the police were chasing him.
The Crown case
It was the Crown case that after the appellant obtained the order of the Federal Magistrates Court on 21^st June 2001, he intended to take the child away from Ms Bartley and to his friend at Bordertown and then to the Sikh temple in Sydney. He replaced the number plates so as to avoid detection after taking the child. He took the gun to The Big Orange to threaten Mr Singh if necessary. He did not expect Ms Bartley to attend on that occasion.
The Crown case was that the events at The Big Orange occurred as related by Ms Warland and Mr Singh. Ms Bartley said or did things that showed she was going to take the child away and thereby deprive the appellant of contact with her and the appellant formed a murderous intent and shot her twice in the body to make her submit to his will and told her to drive his vehicle. When she faltered, he shot her twice in the head. The third shot he fired into her cheek and the fourth shot to the back of her head whilst she was lying on the ground. The accused formed his murderous intent because he was angry and furious but was in control. He was not suffering from a sudden and temporary loss of self-control and Ms Bartley had done or said nothing as might have provoked him to kill her.
The Defence Case
The case for the appellant was that for more than a year Ms Bartley had obstructed him in his efforts to have contact with Savvannah. During the same period he was in dispute with the Department of Immigration about his status in Australia and Ms Bartley had wrongly failed to observe and comply with orders of the Family Court. The Federal Magistrates Court recognised that non-compliance and the order of 21^st June 2001 was made. The appellant was looking forward to having contact with the child. He had celebrated with Mr Singh.
On the Defence case the New South Wales number plates had been in the appellant’s motor vehicle for some time before the order of the Federal Magistrates Court and he had had the gun in his possession for nearly two years. His case as to what occurred at The Big Orange was in accordance with his evidence. Ms Bartley became abusive. She was yelling. She hit him with the mobile telephone. She removed the child from his motor vehicle. He had no recollection of subsequent events. He did not dispute that he shot Ms Bartley four times and killed her but it was his case that he was not acting consciously or voluntarily or with the intention to kill or cause grievous bodily harm. The Prosecution had failed to prove both the general and specific intent and he should be acquitted. In the alternative it was his case that in response to Ms Bartley’s provocative conduct he killed her having lost his self-control and what he did was no more than what any other ordinary person would do in the circumstances.
Other significant evidence
At about 8.30 am on 22^nd June 2001 the appellant spoke to Constable Larsen by telephone. At that time she was stationed in the Riverland. She knew both the appellant and Ms Bartley because of issues between them and dealings she had with them. The appellant told her what had happened in the Federal Magistrates Court on the previous day and that he was to have contact with Savvannah at 4.00 pm that afternoon. He asked her where the contact should take place. She described his mood as very calm. She said that he seemed “very collected” in his conversation. He was not argumentative and showed no animosity to Ms Bartley, which was different than on previous occasions. It was Constable Larsen who suggested The Big Orange. She also suggested that the contact should be through a third party and that he should not have direct contact with Ms Bartley.
Ms Solanki was a friend of the appellant. He talked to her often about Savvannah. She described his attitude towards the child as obsessive. He was extremely fond of her. He told her that he wanted the child in his custody and to bring her up himself. He had told her that he was not really happy with Ms Bartley. On the morning of 23^rd June 2001, the day after the shooting, Ms Solanki received information about the shooting from a friend and at midday she heard a report about it on the radio during which the appellant’s name was mentioned. She telephoned the appellant and left a message for him. He contacted her a little later. She spoke to him and thereafter on a number of occasions had conversations with him. The child was the main topic of conversation. During their first conversation, Ms Solanki asked the appellant what he had done. He said, “Nothing”. She asked him again and he said, “Why, what have you heard” and she told him, including that Ms Bartley was dead. He said he did not believe her. She then gave the following evidence:
“QDid you ask him why he had done it.
AYes.
QDid you get a response.
AHe said the child was either crying or wasn’t feeling well and that Linda had attempted to take the child out of the car seat.
QWhat did he say about that.
AThat’s what he told me and I said ‘Why did you do what you did?’, and he said ‘I don’t know’.
QDid he say anything more about why he had done it.
A.No.
QDid you ask him where he had got the gun from.
AI can’t remember, but it had been said in conversation that he had gotten it from Melbourne, but I can’t remember if he volunteered that or I asked him.”
He also told her that he had obtained the gun about two years previously. She told him to give himself up.
Mr Remi Lorriaux lived at Bordertown and had known the appellant for about five years. Mr Lorriaux said that the appellant spoke lovingly about the child and spoke with concern and disgust about Ms Bartley. He told Mr Lorriaux that he was concentrating on getting the child through contact or custody. He told the jury that on 21^st June 2001 he received a telephone call from the appellant during the early evening. The appellant said that there had been a case in court and was to see the child the coming weekend. He was very excited and that he was serious about having her because he had not had her for a long time. He said he did not know how long away it would be and whether it would be for the whole weekend or not. He said that he wanted to bring the child and stay with Mr Lorriaux.
During the evening of 22^nd June 2001, Mr Lorriaux saw a television report of the shooting. He telephoned the appellant and left a message for him. The appellant rang back. Mr Lorriaux then gave the following evidence:
“QDid you talk to him for a while.
AYes, I did.
QApproximately how long.
AI’m not sure, I think about an hour.
QWhat topic or topics did you discuss.
AWe discussed Singh turning himself in and doing the right thing by his daughter.
QDid you give him some advice.
AYes, I tried to.
QWhat advice did you try and give him.
ATo admit to what he has done and do the right thing by his daughter and get in touch with the police, let them know where he was.
QDid he respond to that advice or express some attitude to it.
AYes, he agreed with me. He told me that he was talking to his friend Janet shortly before he rang me and she was calling the police; they had agreed for her to call the police and let them know where he was.”
The evidence established that the appellant took the child to Sydney and to a Sikh temple.
Detective Carson told the jury that he was involved in the police investigation of the murder. He was given the appellant’s telephone number and a warrant for telephone intercepts was obtained. About 10 telephone calls made using the appellant’s telephone were intercepted and recorded. I mention some exerts of what the appellant said to Ms Solanki and Mr Lorriaux.
The appellant again spoke to Ms Solanki at about 6.45 pm on the day after the shootings. He said to her:
“You must be thinking why the hell and where the hell I am with a child and why did I do it. I didn’t do anything. I didn’t meant (sic) to do that.”
“All I wanted to do, bring my child here for one time in my life.”
He spoke to her again at about 7.00 pm. He asked her if she was sure that Ms Bartley was dead. She said she was. He asked how she knew and she said that it was on the news.
The appellant spoke to Mr Lorriaux at about 7.05 pm:
“And that’s where all I wanted to come with my daughter for one time in my life, she wouldn’t let me come. I don’t think this wasn’t meant to happen like that man.
.........
No, it wasn’t meant to be like that. There was no plans.
.........
It just wasn’t meant to happen, I was just bloody scaring her and I don’t know she wasn’t supposed to be there anyway because she got ..... I can’t go .....”
He spoke to Ms Solanki again at about 7.25 pm. He told her that he had changed the number plates on the vehicle and:
“Not want anybody to trouble me, I drive very slowly, it took me 24 hours to come here.”
At no time during these telephone conversations did he tell Ms Solanki or Mr Lorriaux that he had no memory of shooting Ms Bartley. He did not express surprise at that suggestion.
Inspector Robinson of the New South Wales Police coordinated the apprehension of the appellant at the Indian temple at Turramurra near Sydney late on 23^rd June 2001. Prior to the arrest, Inspector Robinson spoke to the appellant on the telephone and kept talking to him until the police were able to make the arrest. The conversations were lengthy and were conducted by Inspector Robinson in a friendly manner. The appellant said that he had shot Ms Bartley and had thrown the rifle away. Later he said, “What have I done? My daughter does not have a mother now”. At no time during this conversation did Inspector Robinson seek any information from the appellant about the shooting.
Dr O’Brien, a forensic psychiatrist, was called by the appellant. He told the jury that it is possible for a person to suffer a loss of memory about circumstances involving significant psychological trauma. He said it is essentially an unconscious psychological phenomena in which a person is faced with unusually or overwhelming psychological events or some psychological conflict that the person is unable to resolve. In the context of that psychological trauma or conflict by an unconscious mechanism, the person has an amnesia. They are unable to recall the event or details of the event. The technical term is “dissociative amnesia”. The conditions can be seen in any area of conflict of trauma which includes homicide. The memory may or may not return. Dr O’Brien did not examine the appellant. He said that the area of child custody and contact is a very contentious area for many participants and psychological conflict and trauma in such matters is not uncommon.
In cross-examination Dr O’Brien acknowledged that such amnesia is an easy claim to make and there is no clinically recognised means of determining whether it is genuine. He also said that there is a condition known as psychological denial which is similar to dissociative amnesia. It is the inability to remember or to accept an event that might have occurred due to the overwhelming psychological significances of the event.
Also, he said that if a person has genuine amnesia of this nature does not mean that the person did not act deliberately and intentionally during the course of the period of amnesia in the sense of knowing what was done and intending to do it.
The Grounds of Appeal
Mrs Shaw QC, who appeared with Ms Burgess for the appellant, subjected the summing up of the learned Trial Judge to a most critical and detailed examination. Although there were eight grounds of appeal, there were many complaints about the summing up in the context of each ground. I estimate about 80 such complaints in all. Detailed written submissions were provided which covered many complaints not addressed in oral argument. Although they were not the subject of oral submissions, they were maintained and it has been necessary to refer to all of them, even though most of them are without substance.
The First Ground
The first ground of appeal is that the learned Trial Judge erred in directing the jury that there was “no evidence” from the appellant which they could take into account when determining proof of the elements of the offence, whether provocation had been excluded and of the events immediately before the shooting.
When discussing the first element of the charge of murder, namely general intent, the learned Trial Judge reminded the jury that the appellant gave evidence that he could not remember what happened after he warded off Ms Bartley and after she removed the child from his motor vehicle. He said that whether the appellant had a memory or did not have a memory, the consequence was that the jury did not have any evidence from him concerning the events after the child was removed from the car until he became aware that he was driving the car towards Loxton. He directed the jury that they would have to determine whether he had the general intent when he shot Ms Bartley “from other evidence apart from his”. He went on to say that the jury would have to rely mainly on the evidence of Ms Warland and Mr Singh, the eye witnesses, to determine whether the Crown had proved beyond reasonable doubt that the appellant’s action was conscious and voluntary. He said that there was no evidence that he was an automaton or was in some form of trance. There was no suggestion that he was sleepwalking. These observations were made as the learned Trial Judge had earlier used those situations as examples of lack of general intent. He then directed the jury that it was not for the appellant to prove that he was acting without the general intent but it was for the Crown to establish beyond reasonable doubt that he did so.
The learned Trial Judge then gave directions about the element of specific intent which were accurate and appropriate and then said that the jury did not have the assistance of evidence from him on that matter because he asserted loss of memory. He went on to say that loss of memory as to what he did does not mean that the appellant did not have the intention to kill or to do grievous bodily harm. What it meant was that as he had lost his memory he could not remember whether he had the requisite intention or not. He then gave entirely appropriate directions as to how the jury might consider that element. He again referred to the evidence of Ms Warland and Mr Singh and directed them that they had to be satisfied that the Crown had proved either of the requisite intentions at the time the appellant shot Ms Bartley, which would depend upon the view which the jury took of their evidence. He said they would have to infer what the intention of the appellant was from that evidence which they accepted from them and went on to say:
“You may arrive at a conclusion that a person had a particular intention at a particular time in a number of ways. First, the person might tell you what he intended. In this case, that hasn’t occurred. Alternatively, you could conclude that a person must have had a particular intention from what that person said or did, or a combination of what that person said or did at the time or at about the time the person committed the acts. Mostly, we tend to draw conclusions as to what a person intended from what that person did, and so you’re entitled to look at what occurred on this occasion for the purpose of drawing conclusions as to what was intended.
In concluding what must have been the accused’s intention, you will have regard to these facts, and any other facts which you think are relevant: he was angry; Ms Warland said he was furious. He shot his wife, once in the left shoulder and once in the upper left abdomen or the lower chest. He shot her in the cheek, between the mouth and the ear. He shot her in the back of the head. One of these last two shots was delivered while she was prostrate on the ground. It is a matter for you, ladies and gentlemen, whether you are satisfied on the evidence which you’ve heard that he intended to kill her or, at the least, to do grievous bodily harm in the sense that I’ve explained it.”
He then put the Crown case and the Defence case on these issues.

It was correct for the learned Trial Judge to direct the jury that there was no evidence from the appellant as to his intention, if any, at the time he shot Ms Bartley and that the jury had to reach conclusions about those issues from the evidence.
It was submitted that because the accused had denied on oath that he intended to kill Ms Bartley or cause her any harm, he had given evidence denying that he had the requisite intentions but that evidence was given in the context of his evidence that he had no memory of the shooting. It was not evidence relevant to his state of mind at the time.
After the learned Trial Judge gave directions as to provocation, to which I return later, he said:
“In this case, ladies and gentlemen, the accused does not assert that anything his wife said or did caused him to have a sudden and temporary loss of self-control, in his evidence he doesn’t, and that whilst suffering from that loss of control he shot his wife. The accused’s evidence is he can’t remember what happened. However, because he can’t remember what he did that does not relieve the prosecution from the obligation to prove that he was not acting under provocation. The prosecution must still prove that he did not kill his wife while suffering a sudden and temporary loss of self-control as a result of the conduct, words or actions of his wife. Alternatively, the prosecution can negate provocation if it can establish that even if he did have a sudden and temporary loss of self-control the deceased’s words or conduct were not such that an ordinary person in the situation of the accused would lose his self-control to such an extent as to do what the accused did.”
He went on to say that the question had to be answered without reference to the appellant’s evidence “because there is no evidence from him on this topic”.
Later in the summing up the learned Trial Judge directed the jury that if the Crown had proved the general intent and that the appellant killed Ms Bartley, but not the specific intent, then they would have to consider manslaughter by an unlawful and dangerous act. He went on:
“Ladies and gentlemen, Mr Brebner has suggested to you, in his address, that the accused lied in claiming that he has no memory between warding off his wife, his wife moving Savvannah from the car and the accused becoming aware that he was driving towards Loxton. It is a matter for you, ladies and gentlemen, whether you believe the accused or not.
If you find that he is truthful about those matters, then that leaves you with no evidence from the accused on three important issues. Firstly, whether he acted consciously and voluntarily. Secondly, whether he had either of the requisite intentions, intention to kill or intention to commit grievous bodily harm, and thirdly, whether he did what he did as a result of a sudden loss of self-control and killed the deceased while out of control.
If, on the other hand, you find he is untruthful about his loss of memory, then the position is still the same; you still have no evidence on those three important topics from him.”
The learned Trial Judge then explained to the jury that if they found that the appellant was untruthful about loss of memory, that may be a reason for rejecting his evidence on other matters which was a matter for them, but if they found that he lied about loss of memory, they could not reason that he was guilty for that reason alone.
Later in the summing up when the learned Trial Judge was reminding the jury of the evidence of the appellant, he gave similar directions.
As I have mentioned, the complaint is that the learned Trial Judge repeatedly directed the jury that there was no evidence from the appellant they could take into account when determining the elements of the offence and whether provocation had to be excluded by the Crown.
I reject that complaint except in the context of provocation, which I mention later in these reasons.
After the learned Trial Judge directed the jury on the issue of provocation and went on to say:
“ The accused must have suffered a sudden and temporary loss of self-control as a consequence of the words, actions or conduct on the part of the deceased and must have killed the deceased whilst he was still out of control. He must have killed her as a result of the provocation offered by her.
In this case, ladies and gentlemen, the accused does not assert that anything his wife said or did caused him to have a sudden and temporary loss of self-control, in his evidence he doesn’t, and that whilst suffering from that loss of control he shot his wife. The accused’s evidence is he can’t remember what happened. However, because he can’t remember what he did that does not relieve the prosecution from the obligation to prove that he was not acting under provocation. The prosecution must still prove that he did not kill his wife while suffering a sudden and temporary loss of self-control as a result of the conduct, words or actions of his wife. Alternatively, the prosecution can negate provocation if it can establish that even if he did have a sudden and temporary loss of self-control the deceased’s words or conduct were not such that an ordinary person in the situation of the accused would lose his self-control to such an extent as to do what the accused did.
Again, ladies and gentlemen, these questions have to be answered without reference to the accused’s evidence, because there is no evidence from him on this topic. Thus, for this limited defence of provocation to apply two tests must be satisfied.
First, the accused as a consequence of provocation by words or conduct of the deceased herself must have lost his self-control and inflicted the fatal acts whilst out of control.
Secondly, the deceased’s words or conduct must have been such that might cause an ordinary person in the situation of the accused to lose his self-control to such an extent as to do what the accused did.”
At this stage of the summing up, the learned Trial Judge was doing no more than directing the jury that the appellant did not, in his evidence, say that he suffered a sudden and temporary loss of self-control as a consequence of words, actions or conduct on the part of Ms Bartley which was perfectly true. However, he made it plain that the lack of evidence from the appellant was not the end of the matter. He went on to make it clear that the words, actions or conduct need not necessarily have occurred immediately before the shooting and the appellant’s resentment did not have to have its beginning just before the shooting. He told the jury that words, actions or conduct over a period of time may lead to a build up of resentment “which, in the end, gives rise to a loss of self-control”.
I do not propose to set out all of the further directions given by the learned Trial Judge. It is sufficient to say that he reminded the jury, at least in a general way, of the evidence, including the evidence of the appellant, as to what had occurred since his marriage to Ms Bartley concerning his lack of contact with the child, his difficulties with the Department of Immigration and what occurred at The Big Orange before the shooting.
There was some evidence from the appellant which was relevant to the issues of intent and provocation. He told the jury that he was looking forward to seeing the child. On his version of events he behaved sensibly and appropriately at The Big Orange before his claimed loss of memory. He gave the child back at one stage. He agreed to Ms Warland being the supervisor instead of Mr Singh. The effect of his evidence is that he was not angry before that time. He said that Ms Bartley hit him with her telephone and the child was taken from his motor vehicle. It was after that time that he could not remember.
That evidence was, in some respects, supported by Ms Warland. The effect of her evidence is that the appellant screamed and spoke the words to Ms Bartley, which I have mentioned, and he then spoke to her in a “furious tone”. Mr Singh also supports that evidence.
The evidence of the appellant that he was not angry when he could last remember was evidence from him relevant to the issue of provocation, but the failure of the learned Trial Judge to mention it was a matter of little consequence because he had instructed the jury that they had to rely mainly on the evidence of the eye witnesses which, on that matter, was to the same effect.
It is simply incorrect to say that the appellant’s evidence relating to provocation had, in effect, been withdrawn from the jury.
It was submitted that the evidence of the appellant’s statements on the telephone, which I have mentioned, and his conduct in taking the child to New South Wales was relevant to the issue of provocation. It was also submitted that it was essential for a fair trial that the jury had a clear understanding of the significance of, and proper uses, that could be made of the evidence of the appellant and the learned Trial Judge failed to give that assistance. It was contended that there was a risk that the jury discounted, disregarded or, in some other way, gave the evidence of the appellant less weight than it deserved.
We were referred to R v Robinson (1991) 180 CLR 531 and R v Ong (2001) 80 SASR 537 at 539. In the former case the directions to the jury indicated that the evidence of the accused required greater scrutiny than the evidence of the complainant. In the latter case no direction was given to the jury about the accused having given evidence and how his evidence should be regarded and, in particular, that it should not be discounted merely because it is evidence of an accused.
Neither of the cases assist in the resolution of this ground of appeal. In the present case the learned Trial Judge gave extensive directions about the accused having given evidence and how that evidence should be considered. I do not repeat those directions. I merely mention some aspects of them. The jury were directed that the accused did not have to give evidence. His evidence was to be assessed, scrutinized and evaluated in the same way as any other witness in the case and that it would be wrong to regard his evidence differently to any other witnesses simply because he is the accused. During the summing up the learned Trial Judge reminded the jury of the salient features of the evidence of the accused and of the Defence case.
There is one further matter which must be mentioned. During the course of directions the learned Trial Judge told the jury that it was a matter for them whether they believed the appellant’s evidence about his lack of memory. Later in the summing up, he told the jury that it was a matter for them whether they believed the accused or not. Of course, the jury did not have to believe the evidence of the appellant that he lacked memory in order to act on that basis. It was sufficient if they accepted that it was a reasonable possibility that he did not have a memory as he claimed. However, these directions are generally of no consequence because they were given in the context of the appellant not having given evidence about the relevant matters. If the jury accepted his evidence, rejected his evidence or thought that his having no memory was a reasonable possibility, the consequence was the same. There was no evidence from the appellant about these matters.
However, there is one important consequence of this direction. As has been mentioned, the learned Trial Judge told the jury that if they concluded that the appellant was untruthful about loss of memory that may be a reason for rejecting his evidence on other matters. If the jury concluded that it was a reasonable possibility that he had lost his memory even though they could not make a positive finding that he had lost his memory, they could not have made an adverse finding about his credibility for that reason. The jury should have been given a direction along those lines. That is a matter I again consider later.
Except in the respects I have mentioned, I reject this ground of appeal.
The Second Ground
The second ground of appeal is that the learned Trial Judge erred in failing to direct the jury that it was necessary for them to consider the inferences that arose from all of the evidence relevant to the issues of general and specific intent and provocation and the use that could be made of those inferences in the context of the burden of proof. The appellant complains that the learned Trial Judge failed to direct the jury as to the correct approach to circumstantial evidence.
I have mentioned a summary of the Crown case. The Prosecution put to the jury that the appellant planned to breach the contact order and take the child away if he could persuade Mr Singh to let him do so. His chance of taking the child away started to go awry when Ms Bartley told Ms Warland to take the child out of his motor vehicle and put her back into Ms Bartley’s motor vehicle. The appellant fired the four shots from very close range. From these matters the only conclusions that were reasonably, rationally and logically open were that the appellant became angry with Ms Bartley because she was putting a stop to his contact with the child thereby denying him the opportunity of taking her away if he could later persuade Mr Singh to let him do so. He became angry and to the extent that he did not think about the consequences of what he was about to do, he fired all shots deliberately and with the intention of killing her and he later regretted what he had done. He had no gaps in his memory.
Also, I have mentioned a summary of the Defence case as put by the appellant. I mention further aspects of the Defence case. The appellant desperately wanted contact with the child. He obtained the order on the day before the shooting and was very happy. He had experienced pressures on him. He could no longer work because he did not have an appropriate visa, he was likely to be deported from Australia and could not then have contact with his daughter, the child would cry when with him which was asserted in the Family Court, and he did not know of her medical condition. The evidence of the eye witnesses is that he was calm after the child had been placed in his motor vehicle and was screaming. He did not react by losing his temper. He was not going to take off with the child and he said so to Mr Singh. When the child vomited, Ms Warland took her and ran to Ms Bartley’s vehicle and she ran to the driver’s door, which is why he lost self-control. The evidence of Ms Warland indicated that the appellant lost self-control. It could be partly what she said happened and partly what Mr Singh said happened. Something had made him lose control. The past history about the child made him vulnerable.
It was the appellant’s case that his shooting in the presence of the eye witnesses and in a public place indicates loss of control. The fact that he made an aimless journey to Sydney and ended up as a pathetic figure in the temple indicates that he had no plan. There was no logic in what he did. His question of Ms Solanki, “Are you sure my wife is dead?” supports the contention that he acted on the spur of the moment in loss of self-control. Also, the case put to the jury that if it is a reasonable possibility that the appellant killed Ms Bartley in a blind rage whilst out of self-control, the question of lack of general and specific intent must be considered. Dr O’Brien supported the contention that strong feelings can be aroused over children and it was a high emotional issue for a parent not to see a child for about 12 months and then have the child taken away at the last moment.
I turn to the complaint that the learned Trial Judge failed to direct the jury as to the correct approach to circumstantial evidence.
I have mentioned the direction given by the learned Trial Judge as to how the jury may arrive at a conclusion that a person had a particular intention at the time. He went on to remind them of the Crown case that they could infer from the first two shots which were to the body that the appellant intended at least to cause grievous bodily harm to Ms Bartley and that they could infer from the shots to her head that he intended to kill her.
These directions were appropriate and assisted the jury, particularly as they were given in the context of matters which were not in dispute, namely the number of shots, the location of events and that Ms Bartley was on the ground when she was shot in the head. He also reminded the jury of the evidence of Ms Warland that the appellant was angry and furious.
The learned Trial Judge then reminded the jury of the submissions of Defence counsel that the appellant suffered a loss of self-control and that the jury should consider whether that loss of self-control meant that, at the time, the appellant did not form the specific intent.
At other stages during the summing up, the learned Trial Judge reminded the jury of the Defence case.
I can see no reason why a circumstantial evidence direction, as it is often called, should have been given. No authority was cited in support of the appellant’s submission. The case against the appellant and, indeed his own case, was based upon direct evidence. In Shepherd v The Queen (1990) 170 CLR 573, at 579, Dawson J described circumstantial evidence as “evidence of a basic fact or facts from which the jury is asked to infer a further fact or facts”. The position is explained in Sinnasamy Selvanayagam v The King [1951] AC 83 at 87 where the Privy Council observed that “.... intention which is a state of mind, can never be proved as a fact: it can only be inferred from facts which are proved”. The same view was expressed in Cutter v The Queen (1997) 71 ALJR 638 per Kirby J at 647.
The jury were merely being required to reach a conclusion about the appellant’s state of mind from facts which they found proved. In Shepherd Dawson J said at 579-580:
“As I have said, the prosecution bears the burden of proving all the elements of the crime beyond reasonable doubt. That means that the essential ingredients of each element must be so proved. It does not mean that every fact - every piece of evidence - relied upon to prove an element by inference must itself be proved beyond reasonable doubt. Intent, for example, is, save for statutory exceptions, an element of every crime. It is something which, apart from admissions, must be proved by inference. But the jury may quite properly draw the necessary inference having regard to the whole of the evidence, whether or not each individual piece of evidence relied upon is proved beyond reasonable doubt, provided they reach their conclusion upon the criminal standard of proof. Indeed, the probative force of a mass of evidence may be cumulative, making it pointless to consider the degree of probability of each item of evidence separately.”
I reject this complaint.
The next complaint is that the learned Trial Judge did not direct the jury that they could draw inferences from the evidence of the Prosecution witnesses, together with the appellant’s evidence that were rational hypotheses consistent with his innocence.
As will be mentioned later, there is a defect in the summing up of the learned Trial Judge in that he did not direct the jury that they should not only consider the Prosecution case and the Defence case on the issues of general and specific intent and provocation upon the basis of evidence which they found acceptable but also whether the lack of required intent or the existence of the necessary requirements for provocation was a reasonable possibility. That complaint, in various forms, is made about aspects of the summing up. At this stage I mention one complaint, that the learned Trial Judge did not direct the jury that it was open to them to draw inferences consistent with the Defence case from facts which had been proved. It was submitted that the number of facts supported an inference of loss of self-control in circumstances which showed there was no time for the anger to subside. There was no apparent lack of logic in the appellant’s purported remorse and distress following the shooting which supported the Defence case.

I reject these complaints. The learned Trial Judge was not required to repeat every argument or contention of the Prosecution or the Defence. He was obliged to direct them as to how the evidence was relevant to matters in issue and also as to what issues they had to decide and he discharged that obligation. In my view, it would have been erroneous to tell the jury that these pieces of evidence were consistent with the Defence case. Having considered this evidence in the context of all of the evidence, I think it was consistent with the Prosecution case. Even if the learned Trial Judge took the same view, he should not have directed along those lines. Also, as he told the jury, it was for them to pay careful attention to the matters raised by counsel.
The next complaint under this ground of appeal is that in directing the jury that there was no evidence that the appellant was acting as an automaton or “in a similar way” was to withdraw the issue of voluntariness from the jury. At the hearing of the appeal, it was acknowledged on behalf of the appellant that the real issue at the trial was provocation. The learned Trial Judge was correct when he said there was no evidence that the appellant was acting involuntarily. Indeed, the evidence indicated to the contrary. Nevertheless the learned Trial Judge specifically left the issue of general intent to the jury.
The last complaint relating to this ground of appeal is that the directions which I have mentioned tended to reverse the onus of proof in view of the appellant’s loss of memory and the Defence case of competing inferences available from the appellant’s actions.
I regret that I have not understood how these directions could reverse the onus of proof. Even if they are considered in isolation of the many directions given by the learned Trial Judge that the burden of proof of all elements of the crime of murder and of disproving provocation was on the Prosecution, the direction does not even suggest a reversal of the onus of proof.
I reject this ground of appeal.
The Third Ground
By this ground the appellant complains about the directions given by the learned Trial Judge as to provocation. Before considering the various complaints relating to this ground I say something about the law relating to provocation in the context of the issues raised on this appeal.
The law
The law relating to the “defence” of provocation is concisely expressed by King CJ in The Queen v R (1981) 28 SASR 321 at 321-322:
“It is necessary to recall certain basic principles of the law of homicide. The killing of one person by another with intention to kill or do serious bodily harm is murder. Such a killing may, however, be reduced to manslaughter if the killing results from a sudden and temporary loss of self-control on the part of the killer which is brought about by acts or words of the deceased amounting in law to provocation. To amount in law to provocation the acts or words must satisfy the following tests: (1) they must be done or said by the deceased to or in the presence of the killer; (2) they must have caused in the killer a sudden and temporary loss of self-control rendering the killer so subject to passion as to make him for the moment not master of his mind; (3) they must be of such a character as might cause an ordinary person to lose his self-control to such an extent as to act as the killer has acted.”
In Stingel v The Queen (1990) 171 CLR 312, it was held that to be provocation, the wrongful act or insult must have been capable of provoking an ordinary person not merely to some retaliation but to retaliation “to the degree and method and continuance of violence which produces the death”: 325. The Court had earlier said, at 324:
“The requirement that the wrongful act or insult be of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is clearly intended to involve an objective threshold test. It is only if that test is satisfied that it becomes necessary to consider whether the accused was, in fact, subjectively deprived of his or her self-control.”
Later, the Court concluded that in this test at 329:
“The principle of equality before the law requires, however, that the differences between different classes or groups be reflected only in the limits within which a particular level of self-control can be characterized as ordinary. The lowest level of self-control which falls within those limits or that range is required of all members of the community. There is, however, one qualification which should be made to that general approach. It is that considerations of fairness and common sense dictate that, in at least some circumstances, the age of the accused should be attributed to the ordinary person of the objective test.”
and further at 331:
“In the light of what has been written above, the effect of the threshold objective test of s. 160(2) can be stated in summary form. It is to pose for the jury the question whether, in all the circumstances of the case, the wrongful act or insult, with its implications and gravity identified and assessed in the manner we have indicated, was of such a nature that it could or might cause an ordinary person (or, when appropriate, an ordinary person of the age of the accused), that is to say, a hypothetical or imaginary person with powers of self-control within the limits of what is ordinary (for a person of that age), to do what the accused did. A consideration of that question will almost inevitably involve projecting the hypothetical ordinary person of s. 160(2) into the position of the accused at the time of the killing. There is nothing objectionable about that so long as it is remembered that the reference to the ordinary person of s. 160 is not a reference to a person of precisely identifiable powers of self-control but a reference to a person with powers of self-control within the range or limits of what is ‘ordinary’ for a person of the relevant age. In that regard, it must be borne in mind that s. 160(2) refers to ‘an ordinary person’ and not to ‘the average person’.”
The learned Trial Judge gave extensive directions as to provocation and he prepared a memorandum which he gave to the jury. In his memorandum he set out the elements of the crime of murder and that the burden of proof was on the Prosecution to prove each element and any reasonable doubt about any of them must be resolved in favour of the appellant. He then set out the following in relation to provocation:
“Provocation is a partial or limited excuse.
Even though all the elements of murder are present, the crime may be reduced to manslaughter by reason of provocation. The crime is reduced to manslaughter if the accused, as a consequence of conduct on the part of the deceased, suffered a sudden and temporary loss of self-control and killed the deceased while still out of control.
Conduct on the part of the deceased is regarded in law as provocation if and only if it is such as might have caused an ordinary person in the situation of the accused to lose his self-control to such an extent as to do what the accused did.
For the purpose of assessing the degree of insult or offence involved in the deceased’s conduct, the ordinary person is regarded as possessing all the characteristics and life experiences of the accused which would affect the gravity of the insult or offence to the accused. The ordinary person is, a person endowed with ordinary powers of self-control, that is the degree of self-control which you would expect reasonably to find in ordinary members of the community.
The onus is on the prosecution to exclude provocation reducing the crime to manslaughter beyond reasonable doubt. Any reasonable doubt must be resolved in favour of the accused.”
He then set out directions regarding manslaughter by a dangerous and unlawful act which need not be mentioned for present purposes except that it is important to mention that he informed the jury that manslaughter in this way had to be considered if the appellant did not intend to kill or cause grievous bodily harm. He told the jury that the memorandum was prepared to help them when they considered their verdict and it was not a substitute for what he was about to tell them. It was a summary. He directed them not to ignore what he said during the summing up.
Before mentioning the appellant’s complaints about the directions relating to provocation, I first mention those directions.
The learned Trial Judge began his directions about provocation after he had given extensive directions about the law relating to murder. He went on to say:
“The law recognises, as both counsel have told you, that murder might be reduced to manslaughter when a person loses his self-control whilst under provocation, but provocation, that is a loss of self-control, and the question of a loss of self-control only arises if murder is otherwise proved, and that assumes that the Crown have first made out an intention to kill or intention to do grievous bodily harm.”
He then adjourned for the day and, after hearing submissions from counsel the next day, he gave the following direction:
“Ladies and gentlemen, last night I said this to you: ‘The law recognises, as both counsel have told you, that murder might be reduced to manslaughter when a person loses his self-control whilst under provocation, but provocation, that is loss of self-control, and the question of a loss of self-control only arises if murder is otherwise proved and that assumes that the Crown had first made out an intention to kill or an intention to do grievous bodily harm.’ What I said there is not precise enough. Provocation does only arise if the Crown has first proved the three elements of murder, and I will come to that in a minute. The characterisation of the accused’s conduct as a loss of self-control only need be made in relation to the partial defence of provocation. However, of course, all of his conduct, whether you characterise it as a loss of self-control or otherwise, is relevant in determining whether the Crown has proved the elements of murder, namely that what he did was conscious and voluntary and whether he had the requisite murderous intention.”
The learned Trial Judge went on to say that if the jury was not satisfied about the element of general intent, he must be acquitted. If the jury was satisfied about that element, but not about the specific intent, the appellant had to be acquitted of murder and the issue of provocation did not arise but he might be guilty of manslaughter by having caused the death of Ms Bartley by a dangerous and unlawful act. He then went on:
“Provocation is a partial excuse. It is the law that although all of the elements of the crime of murder are present the crime is nevertheless reduced to manslaughter if the accused, as a consequence of words or actions or both on the part of the deceased which amount to provocation, suffered a sudden and temporary loss of control and killed the deceased while out of control.
I will just say again before I move on to those and expand on those matters. A person who suffers a sudden and temporary loss of self-control can still act consciously and deliberately and purposely and can still form an intention to kill or to do grievous bodily harm. That is obviously so. That is obvious because the law recognises, in this partial defence of provocation, that a person may be provoked in circumstances where that person has suffered a sudden loss of self-control. All of those persons who have suffered that sudden loss of self-control, if they are relying upon the defence of provocation, are persons who have been established, been proved, to have committed the act consciously and voluntarily and with the requisite murderous intention.
Words and action amount in law to provocation if and only if they are such as might have caused an ordinary person in the situation of the accused to lose his self-control to such an extent as to do what the accused did. That is to say, form the intention to kill or do grievous bodily harm and to apply force of the same nature and extent as the force which the accused actually applied.
The accused must have suffered a sudden and temporary loss of self-control as a consequence of the words, actions or conduct on the part of the deceased and must have killed the deceased whilst he was still out of control. He must have killed her as a result of the provocation offered by her.”
The jury were then reminded that the appellant did not assert that Ms Bartley said anything which caused him to have a sudden and temporary loss of self-control and that he shot her whilst in that condition. The learned Trial Judge went on to say:
“The accused’s evidence is he can’t remember what happened. However, because he can’t remember what he did that does not relieve the prosecution from the obligation to prove that he was not acting under provocation. The prosecution must still prove that he did not kill his wife while suffering a sudden and temporary loss of self-control as a result of the conduct, words or actions of his wife. Alternatively, the prosecution can negate provocation if it can establish that even if he did have a sudden and temporary loss of self-control the deceased’s words or conduct were not such that an ordinary person in the situation of the accused would lose his self-control to such an extent as to do what the accused did.
Again, ladies and gentlemen, these questions have to be answered without reference to the accused’s evidence, because there is no evidence from him on this topic. Thus, for this limited defence of provocation to apply two tests must be satisfied.
First, the accused as a consequence of provocation by words or conduct of the deceased herself must have lost his self-control and inflicted the fatal acts whilst out of control.
Secondly, the deceased’s words or conduct must have been such that might cause an ordinary person in the situation of the accused to lose his self-control to such an extent as to do what the accused did.”
He then directed the jury that although the loss of self-control must be sudden and temporary, the words and actions to be considered when deciding whether there was provocation need not necessarily have occurred immediately before the shooting in deciding whether there was provocation nor need the appellant’s resentment have had its beginning just before the fatal act. The learned Trial Judge went on:
“Words or actions or conduct over a period of time may lead to a build up of resentment which, in the end, gives rise to a loss of self-control. There is, however, a minimum standard of self-control set by the law as a test for determining whether the deceased’s words and actions amount in law to provocation. The test is whether those words and actions might cause a person possessed of the power of control to be expected of an ordinary person to lose his self-control to such an extent as to do what the accused did.
In order to determine whether that test has been met you have, of courses, to assess the degree of insult or offence constituted by the deceased’s words, conduct or action. In making that assessment, you must have regard to any characteristics of the accused which might effect the degree of insult or offence to him of the deceased’s words, actions or conduct.”
The learned Trial Judge reminded the jury of the evidence about relevant personal characteristics of the appellant, his place of birth, age, marriage, separation, the birth of the child and the difficulties in his contact with the child and the legal proceedings. Also, the learned Trial Judge reminded the jury of the difficulties the appellant was experiencing with the Department of Immigration and that if he had to leave Australia he would not have contact with the child. They were also reminded of the evidence that the appellant believed that Ms Bartley had frustrated his attempts to have contact with the child. Whilst this evidence did not relate to conduct or words of Ms Bartley, it was evidence about the appellant.
He then reminded the jury of the evidence about the events at The Big Orange and then he gave the following direction:
“Some time after that occurred, the accused shot his wife twice in the body. On Miss Warland’s evidence, the child was then returned to his car and placed in the car seat. The deceased was asked to drive his car. On Miss Warland’s evidence she faltered, lent against the car and he shot her twice. So you must decide the conduct of the deceased before the shooting events took place and whether that conduct or whether anything she said on her part amounted to provocation. You must decide whether that conduct was such so as to cause the accused a sudden temporary loss of self-control. If you believe the conduct amounted to provocation, and if you believe that he did suffer a sudden temporary loss of self-control, you must decide whether an ordinary person, in those circumstances, would have lost his self-control and reacted in the same way as the accused did.
That is the last point if you are satisfied of the first two, because if you are not satisfied that the conduct and words that amounted to provocation, or if you are not satisfied that he lost his self-control and that the prosecution has proved that the conduct was not provocation and that he did not lose his self-control, you do not need to consider the third question. The third question arises only if you are not satisfied that the prosecution has proved what it should have proved.
You will have to remember that the Crown has to prove beyond reasonable doubt that the killing was unprovoked. The accused does not have to prove that he acted under provocation. The Crown must satisfy you beyond reasonable doubt that the accused did not lose his self-control or that if he did an ordinary person of the accused’s characteristics would not have lost his self-control in those circumstances, or if he did would not have gone on to kill the deceased.
If the Crown fails to satisfy you that the killing was not provoked, the Crown has failed to satisfy you of the charge of murder. Providing the Crown has proved the other elements beyond reasonable doubt, your satisfaction about provocation does not relieve the accused of the guilt of the unlawful killing, it merely reduces the guilt from murder to manslaughter.”
Later when discussing the Defence case, the learned Trial Judge specifically reminded the jury of the evidence of the events at The Big Orange, including the evidence of the eye witnesses and the events which the appellant said he could remember. The learned Trial Judge, when directing the jury as to the Defence case, reminded the jury of the evidence of obstructions by Ms Bartley of the accused seeing the child, her non-compliance with orders of courts, the appellant’s looking forward to contact with the child and the argument between him and Ms Bartley on the night before the events at The Big Orange. The jury were reminded of the appellant’s evidence about what happened at The Big Orange. He then gave the following directions:
“The deceased gave him the child, the child screamed and he returned the child to the deceased. The deceased quietened the child, the child was put in the car seat in his car. At that stage his wife was on the telephone. She became abusive and started yelling. On the defence case she hit him, or pushed him with the mobile phone and he warded her away. She removed Savvannah from the car seat in his car. He has no recollection of anything that happened after that until he was driving towards Loxton. He drove to Bordertown and then to Sydney to take his child to the Sikh temple.
It is the defence case that if he shot his wife and he has no memory of that, he was not acting consciously or voluntarily. It is the defence case he had no intention to kill or do grievous bodily harm. The defence says the prosecution has failed to prove that he was acting consciously or voluntarily and therefore he should be acquitted. Or alternatively, the prosecution has failed to prove that he had an intention to kill or do grievous bodily harm and therefore he should be acquitted of murder.
Alternatively, it is the defence case if you find the prosecution has proved the three elements of murder, that if he did what is alleged, he did so in response to the deceased’s provocative conduct. He did so whilst he lost his self-control and what he did was no more than any other ordinary person would do in the circumstances.
The Defence case is, as I say, that he does not have to prove provocation, but the defence case is that the onus is upon the prosecution and the prosecution has failed to discharge that onus, and therefore if you find the element of murder made out, murder must be reduced to manslaughter.”

It was submitted that the conduct of Ms Bartley relevant to provocation could be cumulative. I think it is more accurate to say that whether Ms Bartley’s actions, words and conduct at The Big Orange could amount to provocation in law, it is necessary to consider them against the background of what had occurred between her and the appellant since their separation, particularly in relation to the child: The Queen v R at 326. I have mentioned the passage of the summing up in which the learned Trial Judge directed the jury along these lines. It was further submitted that the learned Trial Judge was obliged to direct the jury in accordance with the version of the evidence most favourable to the appellant in addition to other versions reasonably arising on the evidence. Stingel and Masciantonio were cited by the appellant in support of that proposition. In Stingel the Court, at 334, was discussing the test as to whether provocation should be left to the jury and they said:
“The result is that the question for a trial judge .... can be summarized as being 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.”
In Masciantonio, Brennan, Deane, Dawson and Gaudron JJ made a similar observation in the same context.
I reject the contentions. They have no basis in law. As I have said, once the learned Trial Judge decided to leave provocation to the jury he had to give accurate directions as to law and fact so that the jury was aware of what matters could amount to provocation and that they had to decide if provocation had been excluded beyond reasonable doubt.
It was submitted that the appellant’s case was that the Prosecution could not exclude as a reasonable possibility that an ordinary man in the position of the appellant might have lost self-control to such an extent as to form the intention relevant to murder based upon inferences drawn from the evidence of lack of premeditation, the appellant’s conduct prior to and after the shooting, the direct observations by others that he was “angry and furious, the number of shots fired, his evidence that he was not expecting his wife or Ms Warland to be present and the history of the relationship which I have mentioned.
I have mentioned the directions of the learned Trial Judge as to what the jury had to decide. Of course, it was the Prosecution case that the appellant went to The Big Orange to collect the child armed with a loaded gun. He was frustrated in his wish to take the child and he became angry to the point where he formed the intention to kill and he did so.
The last of the many complaints constituting this ground of appeal is that the learned Trial Judge failed to put to the jury the real case for the appellant on provocation. We were referred to Green v The Queen (1996-1997) 191 CLR 334 where McHugh J said, at 371, that the failure to put certain fundamental factual matters to the jury meant that his “real case” or whether the conduct of the deceased could have induced an ordinary man in the position of the accused to have lost self control and formed the intention to kill, was never put to the jury. This observation does not establish any legal principle.
As I have said, the learned Trial Judge did put the Defence case and I reject this complaint.
In my view, the third ground is not established.
The fourth ground
The appellant contends that the learned Trial Judge erred in his directions as to the appellant’s loss of memory. I have mentioned the appellant’s evidence about this matter and the evidence of Dr O’Brien. I have also mentioned the evidence of Ms Solanki and Mr Lorriaux.
It was submitted that the evidence of Ms Solanki was consistent with the appellant’s asserted loss of memory. That is a reference to the appellant telling her that he did not believe her when she told him that Ms Bartley was dead. This submission does not take account of the further evidence of Ms Solanki which I earlier mentioned.
The first complaint is that the learned Trial Judge should have directed the jury that they were to carefully consider the fact that the appellant could not remember the events but only after a certain point. He should have directed the jury that the loss of memory ought to have led to greater scrutiny of the evidence upon which the Prosecution relied unless the loss of memory was proven beyond reasonable doubt to have been feigned. Reliance was placed upon the observations of the Judicial Committee in Broadhurst v The Queen [1964] AC 441 at 459:
“In Russell v H M Advocate (1946 SC(J) 37, 48) the Lord Justice-Clerk said: ‘Loss of memory in a person otherwise normal and sane plays its full part, if it is sufficiently proved, in increasing the onus on the Crown, and in raising doubts to which it may be the duty of the jury to give effect in a verdict of acquittal after investigation of the whole case’. In referring to this dictum in Reg v Podola [1960] 1 QB 325, 356 Lord Parker CJ said that it did not mean that strictly the onus was any greater, but that ‘a judge should point out to a jury that they must take into consideration carefully the fact that the accused cannot remember the events’. Just as a faked loss of memory may make it easier for a jury to draw the inference of guilt, so a genuine loss of memory may make it more difficult, for a jury must then reflect that by the force of circumstances they have heard only one side of the case. Their Lordships consider that the Chief Justice should have pointed this out to the jury and that he did not hold the balance even in this respect.”
We were also referred to R v Richards (1994-1995) 77 ACrimR 1. In that case there was genuine loss of memory and I dismissed an application for a permanent stay of the Prosecution which had been brought on the basis that the applicant could not have a fair trial. I accepted that the applicant would be disadvantaged in preparation for trial and at the trial but the application was dismissed for reasons which are not relevant for present purposes. However, I also accepted that the jury must be directed to take into consideration carefully the fact that the applicant could not remember the relevant events if they conclude that such lack of memory is a reasonable possibility.
The directions of the learned Trial Judge about the claim of the appellant to have no memory of events after he claimed to have been struck by the telephone were appropriate, except in one respect.
As mentioned earlier, the learned Trial Judge did tell the jury that they would have to decide whether they believed the appellant’s account that he had no memory, however he did say that the appellant did not have to prove or disprove anything. He said that if they believed the appellant they must approach their deliberations on the basis that he was at a real disadvantage because he had been denied the opportunity of saying that he did not have the general or specific intent or that he shot Ms Bartley whilst suffering from a sudden and temporary loss of control. If they found that he was untruthful, that was a matter to consider when assessing all of his evidence. The learned Trial Judge went on to say that whether or not the jury believed that the appellant had lost his memory, they did not have evidence from him about his state of mind at the time of the shooting and whether he suffered a sudden loss of control. He directed the jury that they had to decide his state of mind from the other evidence led by the Prosecution. I think the learned Trial Judge expressed himself too narrowly because the evidence of the appellant of what he said he could remember of the events at The Big Orange was relevant to those matters as was his, and other evidence, as to the history which I have mentioned. Nevertheless, the learned Trial Judge went on to say that the task of the jury would be the same whether or not the accused was telling the truth, had the Prosecution proved the elements of general and specific intent and that he was not suffering a sudden and temporary loss of control. The learned Trial Judge reminded the jury of the evidence of Dr O’Brien.
The learned Trial Judge did not direct the jury that even if they did not believe the appellant about his claimed loss of memory, they should also consider whether it was a reasonable possibility that he had lost his memory. If so, no adverse view of his credibility should be taken and the jury should proceed on the basis that he had lost his memory.
At the trial before the evidence was completed, Defence counsel asked the learned Trial Judge to give a direction along the lines discussed in Broadhurst. The learned Trial Judge said that he would not direct the jury that the Crown case was more difficult because of the appellant’s claim of loss of memory.
In my view, the learned Trial Judge was correct in that decision. The claimed loss of memory was very much in issue. The evidence of Ms Solanki and the statements by the accused recorded during the telephone calls which were intercepted could rebut the claim of loss of memory. This was not a case of established genuine loss of memory.
Also, the claimed loss of memory was limited. For practical purposes, it is limited to the events of the shooting. It enabled the appellant not to have to address the elements of murder in his evidence. On the Prosecution case, it was a convenient loss of memory for that reason. Furthermore, this was not a case where the appellant was prejudiced by the alleged loss of memory in the way that an accused could be prejudiced by having no memory at all of an alleged crime. It was not a “word against word” case. Two eye witnesses were present at the shooting. He acknowledged that he was present and that he remembered events up to shortly before the shooting. He undoubtedly shot Ms Bartley and the only issues at the trial were his state of mind when he did so and the issue of provocation.
The next complaint is about the directions of the learned Trial Judge regarding the claim of loss of memory by the appellant.
I have mentioned these directions when discussing the first ground of appeal.
In Murray v The Queen (2002) 76 ALJR 899, the Trial Judge drew the attention of the jury to the Prosecution and Defence cases on the charge of murder and instructed the jury that they had to decide which version of those events they would accept. This direction was held to be a misdirection as the question for the jury was not whether they should accept the accused’s version of events, but whether the Prosecution had negatived it as a reasonable possibility: 904 and 910. Gaudron J observed that the direction imitated the issue for determination in a way which relieved the Prosecution of proving its case beyond reasonable doubt.
The first complaint under this ground is that the learned Trial Judge failed to direct the jury that even if they did not positively believe the evidence for the Defence, they could not find against the appellant on an issue contrary to that evidence if the evidence gives rise to a reasonable doubt as to that issue. The authority cited for this proposition is the observation of Brennan J in Liberato & Ors v The Queen (1985) 159 CLR 507 at 515:
“When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue.”
It may readily be seen that the observation is made in the context of a conflict between the evidence of a Prosecution witness and the evidence of a Defence witness. As the learned Trial Judge pointed out to the jury, there was no evidence from the appellant as to the main issues at the trial, namely general and specific intent and provocation. There is no substance in this complaint.
The fifth ground
The appellant contends that the learned Trial Judge erred in his directions to the jury about the uses that they could make of the out of court statements made by the appellant to others after the shooting and their significance in relation to his loss of memory.
I have mentioned the evidence of Mr Lorriaux, Ms Solanki and Inspector Robinson. At no time did the accused say to any of them that he could not remember what occurred.
At the trial the Prosecution made the point that if the appellant genuinely had no memory he would have said so to these witnesses.
The learned Trial Judge directed the jury that the evidence of Ms Solanki was important when determining whether or not the claim by the appellant of loss of memory was true. He reminded them of her evidence, including that the appellant was crying and hysterical during some of the telephone calls he had with her. The learned Trial Judge also reminded the jury that it was not put to them by Defence counsel that the appellant ever said that he did not remember what happened or that he had any lapse of memory. The learned Trial Judge then mentioned the evidence of Mr Lorriaux and, in particular, the evidence of the telephone conversation between him and the appellant on 23^rd June 2001 when the appellant said, “It just wasn’t meant to happen. I was just scaring her and I don’t know if she wasn’t supposed to be there. Anyway, because she got .... I can’t go.” The learned Trial Judge went on to say that on three occasions Mr Lorriaux told the appellant that the media was portraying him in an adverse light, such as a monster, and at no time did the appellant respond. At no time did he say that he had no memory of what happened. He then reminded the jury that the appellant did not tell Inspector Robinson that he did not have a memory of what happened.
It was the Defence case that the appellant’s evidence about his conduct after the shooting and his statements to others were relevant to the issues of general and specific intention and provocation. His conduct demonstrated concern for his child.
The complaint is that it was not proper in the circumstances to direct the jury that they were entitled to have regard to the failure of the appellant to tell these witnesses about loss of memory. The learned Trial Judge gave no direction as to the permissible and impermissible use of this failure which was inappropriate and potentially prejudicial to the appellant. There was a risk that the jury would draw adverse inferences against the Defence case and the appellant by reason of the failure to give limiting directions. The jury could have concluded that the failure by the jury to tell the witnesses of his lack of memory made his evidence less credible and that the explanation for that failure was that “he knows the truth of the matter, namely that he shot her deliberately and intentionally”.
Support for this somewhat surprising submission is said to be found in Petty & Maiden v The Queen (1991) 173 CLR 95; R v Vannatter [1999] QCA 104 and R v Foley (1998) 105 ACrimR 1.
In Petty v Maiden the High Court was concerned with an accused’s right to silence. The Court held that no adverse inference could be drawn against an accused who exercised that right, including a consciousness of guilt. Mason CJ, Deane, Toohey and McHugh JJ, when considering the position where an explanation made at the trial was not given when the right to silence was exercised said, at 101:
“And, what is of more importance, the denial of the credibility of that late defence or explanation by reason of the accused’s earlier silence is just another way of drawing an adverse inference (albeit less strong than an inference of guilt) against the accused by reason of his or her exercise of the right of silence. Such an erosion of the fundamental right should not be permitted. Indeed, in a case where the positive matter of explanation or defence constitutes the real issue of the trial, to direct the jury that it was open to them to draw an adverse inference about its genuineness from the fact that the accused had not previously raised it would be to convert the right to remain silent into a source of entrapment. Accordingly, the distinction is, in our view, unsound.”
Vannatter is also a case where it was accepted that no adverse inference may be drawn from an accused omitting to volunteer his defence to police.
In the present case the appellant did not exercise his right to silence when he spoke to the three witnesses. He was simply talking to them on the day after the shooting. If he had no memory of such a momentous event as killing his wife, it was a matter for consideration of the jury that he failed to mention that matter when he was informed of what had happened. The learned Trial Judge was correct in drawing that matter to the attention of the jury.
In Foley, the Court was concerned with the consequence of the failure of Defence counsel to observe the rule in Browne v Dunn (1893) 6 R 67 and the circumstances in which the jury may be directed that such a failure may be an indication of recent invention by an accused person. I have not found this case of any assistance.
I can find no error on the part of the learned Trial Judge in the observations which he made to the jury.
The next complaint is that the learned Trial Judge erred in his comment to the jury that Defence counsel at the trial did not put to Ms Warland and Mr Singh that the appellant had pushed Ms Bartley away and did not suggest that such an incident occurred after the child vomited for the first time. The learned Trial Judge reminded the jury that it was not put to Mr Singh by Defence counsel that Ms Bartley hit the appellant on the head with her mobile telephone or that he had pushed her away. It was not suggested by Defence counsel that there had been any physical contact between them or that if those events had occurred he did not see them. As I have mentioned, the learned Trial Judge reminded the jury that Defence counsel had not put to Ms Solanki or Mr Lorriaux that the appellant had said to them that he had no memory of the shooting. Inspector Robinson was not called as a witness. His evidence was given by his statement being read to the jury.
I am unable to see how any of these observations, so far as they went, were inappropriate. The subject matter of them was relevant to issues to be decided by the jury. They were comments by the learned Trial Judge not directions. As such, the jury were entitled to ignore any of them as they saw fit: Azzopardi v The Queen (2001) 205 CLR 50 at 70. The learned Trial Judge did not go further and explain that there may be any one of a number of reasons why questions were not asked by Defence counsel: see R v Manunta (1990) 54 SASR 17 at 23 and Foley. However, standing alone, this omission does not give cause for concern that the trial may have miscarried. The learned Trial Judge did not give prominence to these comments in the summing up although they did relate to the credibility of the appellant’s version of events and his claim of loss of memory. Nevertheless, it is a matter to bear in mind when deciding the outcome of this appeal and I return to this matter later.
Apart from this matter, this ground should be rejected.
The sixth ground
The appellant complains that the learned Trial Judge erred in failing to instruct the jury as to the effect of inconsistencies in the evidence of Ms Warland and Mr Singh and to put the Defence case about those inconsistencies.

As has been mentioned, the learned Trial Judge, after reminding the jury that the appellant claimed to have no memory of the shooting, directed them that they would have to determine the issues of general and specific intent from other evidence. They would have to rely mainly on the evidence of Ms Warland and Mr Singh.
The learned Trial Judge went on to say that whether or not the Crown had proved either the general intent or the specific intent at the time he shot Ms Bartley depended upon the view that the jury took of the evidence of these two witnesses.
I have mentioned the evidence of these witnesses. As should be expected, there were some differences but their evidence was substantially consistent. I accept the argument of Mr Brebner, who appeared for the respondent, that any inconsistencies were explicable because of the different locations from where they viewed the various incidents and their individual capacities of perception and recollection. Also, the events shortly before the shooting and the firing of the four shots was undoubtedly a dramatic and terrifying experience for the witnesses and it would be surprising if they related what happened without differences.
The learned Trial Judge reminded the jury of the evidence of these witnesses and of the appellant and gave clear directions as to the matters which had to be decided. In the circumstances, he was not obliged to analyse differences in the evidence of these witnesses.
The seventh ground
The complaint is that the learned Trial Judge erred in his directions as to the burden of proof.
The first impugned passage of the summing up is:
“In due course it will be for you as to whether you believe his evidence about that. Whether he has a memory or not of the events may only matter in due course as to whether you think his evidence is reliable or otherwise. Whether he does have a memory or whether he does not have a memory, the end result is you have no evidence from him upon the events which occurred after Savvannah was removed from the car and when he became aware that he was driving towards Loxton.”
Later, the learned Trial Judge, after referring to the submissions of the prosecutor that the appellant had lied about his claim of having no memory of the events after Ms Bartley removed the child from the car until he was driving his motor vehicle towards Loxton, said, “It is a matter for you, ladies and gentlemen, whether you believe the accused or not”. I have mentioned this direction, and other similar directions, earlier in these reasons in the context of other grounds of appeal. At a later stage of the summing up, the learned Trial Judge told the jury that the only evidence that Ms Bartley’s telephone came into contact with the appellant, that he warded her off or that there was any physical contact between them was the evidence of the appellant. He went on to say, “Whether you believe that happened depends upon whether you believe the accused”.
These directions are unfortunate and could have misled the jury into accepting that when considering the evidence of the appellant they had only two choices, to accept his evidence or to disbelieve him. It was also open to them to conclude that his evidence about his loss of memory was a reasonable possibility and, if so, they should act upon that conclusion as if they had accepted his evidence.
There is another passage of the summing up when the learned Trial Judge was giving directions about provocation. I repeat the passage which is relevant to this ground:
“Some time after that occurred, the accused shot his wife twice in the body. On Miss Warland’s evidence, the child was then returned to his car and placed in the car seat. The deceased was asked to drive his car. On Miss Warland’s evidence she faltered, lent against the car and he shot her twice. So you must decide the conduct of the deceased before the shooting events took place and whether that conduct or whether anything she said on her part amounted to provocation. You must decide whether that conduct was such so as to cause the accused a sudden temporary loss of self-control. If you believe the conduct amounted to provocation, and if you believe that he did suffer a sudden temporary loss of self-control, you must decide whether an ordinary person, in those circumstances, would have lost his self-control and reacted in the same way as the accused did.
That is the last point if you are satisfied of the first two, because if you are not satisfied that the conduct and words that amounted to provocation, or if you are not satisfied that he lost his self-control and that the prosecution has proved that the conduct was not provocation and that he did not lose his self-control, you do not need to consider the third question. The third question arises only if you are not satisfied that the prosecution has proved what it should have proved.”
The question is whether this direction was a misdirection because the jury were not directed that they should also consider whether it was a reasonable possibility that the conduct of Ms Bartley caused a sudden temporary loss of control and amounted to provocation. The same must be said about the remainder of this part of the direction. It would be sufficient for the purpose of the Defence case if each of these matters was a reasonable possibility.
The question is whether the jury could have been deflected from the task of deciding whether the Prosecution had proved the charge of murder beyond reasonable doubt, including whether it had disproved provocation: Murray v The Queen. In that case Gaudron J said at 904 [23]:
“Although the trial judge, in the early part of her directions, correctly instructed the jury with respect to the onus of proof, in the passages set out above, her Honour posed the question for the jury’s determination with respect to murder as the question whether it accepted the prosecution’s or the appellant’s version of events. That was the central or critical direction in her Honour’s summing up. And as the issue for the jury was not whether it should accept the appellant’s version but whether the prosecution had negatived it as a reasonable possibility, that direction mis-stated the issue for determination in a way that relieve the prosecution of proving its case beyond reasonable doubt. Accordingly, the appeal should be allowed on that ground.”
Gummow and Hayne JJ took the same view at 910 [57]. They said that the directions about:
“.... accepting the accused’s evidence or version of events were apt to mislead the jury about the decision they had to make. The choice for the jury was not to prefer one version of events over another. The question was whether the prosecution had proved the relevant elements of the offence beyond reasonable doubt. This required no comparison between alternatives other than being persuaded and not being persuaded beyond reasonable doubt of the guilt of the appellant.”
It is necessary to consider these impugned directions in the context of all of the directions given by the learned Trial Judge as to burden and degree of proof. Repeatedly throughout the summing up the learned Trial Judge gave clear directions that the Prosecution carried the burden of proof on all matters. He commenced such directions early in the summing up and gave consistent directions to the same effect throughout the summing up which I need not repeat. The directions included that the appellant did not have to prove any defence or explanation consistent with innocence.
This direction made it plain that the burden of proof of each element of the charge of murder, including disproving provocation, remained throughout the trial on the Prosecution.
Towards the end of the summing up, the learned trial Judge summarised the issues in the trial and directed the jury that they had to decide whether the Prosecution had proved beyond reasonable doubt general and specific intent, the shooting was unlawful and had excluded provocation. He again said there was no onus on the accused. He proceeded to summarise the issues relating to provocation and said that the Prosecution had to exclude provocation and, if not, the verdict would be manslaughter. His final direction was to remind the jury that the burden of proof was on the Prosecution and there was no onus on the appellant. He did not have to prove anything.
These directions clearly informed the jury as to the burden and degree of proof. The only question is whether they overcame the misdirections which I have mentioned. In Murray the conviction was set aside because the misdirection was “the central or critical direction” in the summing up: per Gaudron J at 904.
I think the directions by the learned Trial Judge were erroneous for the reasons expressed in Murray and they were critical directions. I have mentioned that the learned Trial Judge gave extensive directions as to burden and degree of proof given by the learned Trial Judge before and after the impugned directions but I do not think they could overcome the failure to direct the jury that they had to decide whether the Prosecution had negatived the lack of general and specific intent and provocation as a reasonable possibility. The same must be said about the choice given to the jury by the learned Trial Judge about accepting or rejecting the evidence of the appellant as to his claimed loss of memory which I have earlier mentioned.
This part of the seventh ground is established.
That question must be resolved upon consideration of whether there is a possibility of a miscarriage of justice, which I address shortly.
The second part of Ground 7 was not pursued in oral argument but was included in the written submissions. It was not abandoned and so it is necessary to consider it.
The complaint is that the learned Trial Judge erred in law by inviting the jury to subject a doubt which it may entertain to a process of evaluation to determine whether it is reasonable.
I can find no basis for this complaint in the summing up. At no time did the learned Trial Judge attempt to define reasonable doubt. Near the beginning of the summing up, when giving directions about the degree of proof, he said:
“Nothing short of proof beyond all reasonable doubt will do. It is not enough for the Crown to show a mere suspicion of guilt or to show that the accused person is probably guilty. He is not to be convicted unless his guilt has been proved beyond reasonable doubt.
If, at the end of the case, you are left with a reasonable doubt about the guilt of the accused, that is a doubt reasonably arising on the evidence, then you must give him the benefit of that doubt and find him not guilty. Unless you can be satisfied upon the evidence beyond reasonable doubt that the charges have been proved, then you cannot convict the accused.”
At near the end of the summing up, he said:
“Remember again the burden of proof lies wholly on the Crown and no onus lies on the accused. The accused does not have to prove any defence or explanation consistent with innocence. Particularly he does not have to prove he was provoked, the Crown must prove that he was not. If you are left in any reasonable doubt about whether the Crown has proved its case the accused must have the benefit of that doubt. Of course, the doubt must be a reasonable one.”
Neither in these passages nor anywhere else in the summing up did the learned Trial Judge explain or define reasonable doubt in an impermissible way. There is no merit in this part of this ground of appeal and it is rejected.
The eighth ground
This ground asserts that the learned Trial Judge failed to put the Defence case adequately in relation to general and specific intent and provocation. The complaints have been canvassed when considering the second and third grounds. I reject those complaints.
The appellant also contends that the learned Trial Judge was obliged to expressly mention in the course of the summing up the issues of fact to be decided by the jury and the evidence which bore upon the assessment of those issues. A number of authorities were cited by the appellant in support of this contention but I do not think they establish any more than the obvious proposition that when putting the Defence case the learned Trial Judge must not only identify that case but any factual basis for it in the evidence and give appropriate directions as to how the jury might approach the matter in accordance with the circumstances of the case.
Conclusion
I have mentioned the aspects of the grounds of appeal which must succeed. It is necessary to consider whether the misdirections resulted in the appellant not having a fair trial and there being a miscarriage of justice.
Having considered the evidence, I regard the Prosecution as having a strong case. It is acknowledged that the appellant considered breaching the contact order by taking the child away if Mr Singh would permit him to do so. To use a mild expression, he was annoyed at the history of attempts to see the child.
He had very strong feelings of antagonism towards Ms Bartley as is seen from the evidence of Mr Lawes and the tapes of what the appellant said on the telephone and the evidence of Mr Rodda. The learned Trial Judge admitted that evidence for the limited purpose as demonstrating the ongoing tension that existed between the appellant and Ms Bartley. It was not admitted as evidence that the appellant had in mind killing Ms Bartley and it should not now be used for that purpose in order to evaluate whether there has been a miscarriage of justice because of the erroneous directions by the learned Trial Judge which I have mentioned.
As against those considerations, the appellant’s case was that he did not expect to see Ms Bartley when he went to The Big Orange. He did not take the loaded gun because she might be present. On his evidence and the evidence of Ms Warland and Mr Singh, the appellant was calm until the problems with the child commenced. He then became “furious” and “angry”. On all accounts there was an extreme change in his demeanour. He then shot Ms Bartley.
The learned Trial Judge decided to leave provocation to the jury. He obviously concluded that, taking the appellant’s case at its most favourable to him, there was material in the evidence capable of constituting provocation and a jury acting reasonably might fail to be satisfied beyond reasonable doubt that the killing was unprovoked in the relevant sense: Stingel at 334 and Masciantonio at 67-68.
I think this is a difficult case. The conduct of Ms Bartley at The Big Orange, standing alone, does not suggest provocative conduct. What she did was to remove, or cause to be removed, the child from the appellant’s motor vehicle when the child was screaming and after she had vomited, or at least gave the appearance of having done so. However, that conduct has to be evaluated in the context of the history of frustrated contact with the child by the appellant and his claim that Ms Bartley caused the child to cry in order to prevent his contact with the child. Also it had to be considered in the context of the personal features and characteristics of the appellant and his past relationship with Ms Bartley. As King CJ observed in The Queen v R at 322, it is not the function of this Court on appeal “to consider whether the evidence should lead to a verdict of manslaughter by” reason of provocation. The function 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.
Also, the conduct has to be such that it could cause an ordinary person to do what the appellant did. I have also been troubled about this matter. The learned Trial Judge saw and heard the witnesses, including the appellant, and reached the conclusion that provocation should be left to the jury in all of the circumstances of the case. I would not expect that an ordinary person might behave in that manner if the conduct of Ms Bartley was limited to what happened at The Big Orange, but I could not reject the assessment made by the learned Trial Judge given the background of the relationship between Ms Bartley and the appellant as has been described.
As provocation was properly left to the jury and the misdirections were central to the summing up and of a critical nature as to the degree of proof, it is not possible to say that the appellant was not deprived of a chance of acquittal of the charge of murder and therefore it is not possible to say that there has been no substantial miscarriage of justice: see Wilde v The Queen (1987-1988) 164 CLR 365 per Brennan, Dawson and Toohey JJ at 371-373. Also, as I have mentioned, the direction of the learned Trial Judge to the jury that there was no evidence from the appellant relevant to the question of provocation was too narrow and therefore incorrect. He did not direct the jury that there may be reasons why Defence counsel did not put to particular witnesses matters relevant to the Defence case on provocation. As I have said, these matters, standing alone, would not suggest that the trial miscarried but they should be considered with other misdirections when considering the outcome of the appeal. Consequently, it is not appropriate to apply the proviso in s 353(1) of the Criminal Law Consolidation Act 1935.
I would allow the appeal and set aside the verdict of guilty of murder.
It remains to consider whether this Court should substitute a verdict of manslaughter or order a retrial. In my view, the issue of provocation is a question for a jury. The circumstances of the killing of Ms Bartley indicates that upon a retrial a verdict of guilty of murder might be returned. Consequently, it is inappropriate to substitute a verdict of manslaughter: Johnson at 645 and 660. I would order a retrial.
DEBELLE J I have had the benefit of reading the reasons of Mullighan J. I agree with the substance of those reasons and with the orders he proposes.
GRAY J I would allow the appeal, set aside the verdict of guilty and order a retrial for the reasons given by Mullighan J.

[2003] SASC 344

2 October 2003