R v Thorpe (No 2)
[1999] VSCA 172
•22 October 1999
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 25 of 1999
THE QUEEN
v
THOMAS DESMOND THORPE
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JUDGES: WINNEKE, P., CALLAWAY and CHERNOV, JJ.A. WHERE HELD: MELBOURNE DATE OF HEARING: 4 October 1999 DATE OF JUDGMENT: 22 October 1999 MEDIA NEUTRAL CITATION: [1999] VSCA 172
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CRIMINAL LAW – Murder – Provocation – Personal characteristics of accused relevant to objective, as well as subjective, test – Choice between "could" and "might" – Directions couched in terms of "reasonable possibility".
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APPEARANCES: Counsel Solicitors For the Applicant Mr. S. Russell Victorian Aboriginal Legal
ServiceFor the Respondent Mr. G. Hicks P.C. Wood, Solicitor for
Public Prosecutions
WINNEKE, P.:
CALLAWAY, J.A.:
CHERNOV, J.A.:
On 27th February 1998 the applicant was found guilty in the Supreme Court on one count of murder and one count of intentionally causing serious injury. His conviction on the former count was quashed and a new trial directed: see R. v. Thorpe (No. 1) [1999] 1 V.R. 326. On 10th February 1999 he was again convicted of murder. He sought leave to appeal against that conviction on three grounds, of which one was not argued. The other grounds both impugned the learned trial judge's directions with respect to provocation. The evidence led at the second trial was not significantly different, at least for present purposes, from that summarized in R. v. Thorpe (No. 1), especially but not only at 327-329, but provocation became a major issue. It was an issue that was made more difficult to consider because there was no direct evidence of what occurred between the applicant and the deceased when the events unfolded. One was dead and the other was found in what appeared to be a semi-comatose condition in which he was not responding to painful stimuli. The applicant gave evidence but said that he could not recall what had happened.
Rather than repeat what Charles, J.A. said in R. v. Thorpe (No. 1) at 327-329, we shall proceed directly to the reasons why it is said that the second conviction for murder should be quashed and that there should be a third trial. In dealing with them we shall from time to time refer to "provocative words or conduct". In doing so, we do not intend to foreclose future discussion of the kind of words that are now regarded as sufficient at common law: cf. Moffa v. R. (1977) 138 C.L.R. 601 at 605, 619 and 620-621, Stingel v. R. (1990) 171 C.L.R. 312 at 321-322, Green v. R. (1997) 191 C.L.R. 334 at 375-376 and R. v. Tuncay [1998] 2 V.R. 19. No argument was addressed to us on that question but it is hard to see why, like the former doctrine of proportionality, it is not subsumed under the objective test: cf. R. v. Tuncay at 20-21.
Mr. Russell for the applicant criticized the charge in five respects. The first concerned the way in which his Honour related his directions on provocation to the evidence. Although he expressly told the jury that provocation may consist of "some act or acts done or words spoken by the deceased, or both", counsel submitted that it was not made clear that an attack by the deceased when he re-entered the house could be enough on its own. There was evidence as to the kind of attack that was likely to have taken place but, counsel said, the judge had not drawn specific attention to it in the charge. Moreover, although the jury had been told to take into account the personal characteristics of the applicant, no more direct reference had been made to his Aboriginality than appears in the passage set out in [12] below. (It will be recalled from the report of the earlier case that the deceased had said that he was going back to "fix that black bastard".) The short answer to those submissions is that no exception was taken below and it is too late now. Counsel saw no injustice or error in what was done and, having regard to the nature of the criticisms, nor should this Court: see R. v. Wright [1999] VSCA 145 especially at [2] and [16-17].
Secondly, his Honour sometimes spoke of what an ordinary person "would" do when he meant what an ordinary person "could" do. When the charge is read as a whole, it is clear that they were slips. They would have been so perceived by the jury and again there was no relevant exception.
Thirdly, the jury were given a document which consisted of a list of topics to be covered in the charge and a summary in point form of what the prosecution had to prove to sustain a verdict of murder or of manslaughter by unlawful and dangerous act or to exclude self-defence or provocation. The summary in relation to provocation said that two of the ways in which provocation could be excluded were to establish that the ordinary sober person of the same age, and in the same position as the accused was in, "could not" have lost his self-control or "could not" have gone on to kill the deceased. (No complaint was made about the definite article, but compare Stingel v. R. at 332.) The charge used the same expressions. When a direction is given in that form, it is customary to say that the Crown may discharge the onus by satisfying the jury that an ordinary person "would not" have lost self- control or "would not" have acted as the accused did. See R. v. Anderson (1997) 94 A.Crim.R. 335 at 336. We accept the submission of Mr. Hicks for the respondent that the departure from the customary language was, if anything, favourable to the accused, for the jury were told that the Crown had to establish not just that an ordinary person would not act in a particular way but that such a person could not do so.
The other two criticisms were of more substance. For convenience we preface them with the following passage from the joint judgment of Brennan, Deane, Dawson and Gaudron, JJ. in Masciantonio v. R. (1995) 183 C.L.R. 58 at 66:
"Homicide, which would otherwise be murder, is reduced to manslaughter if the accused causes death whilst acting under provocation. The provocation must be such that it is capable of causing an ordinary person to lose self-control and to act in the way in which the accused did. The provocation must actually cause the accused to lose self-control and the accused must act whilst deprived of self-control before he has had the opportunity to regain his composure."
The third sentence in that passage refers to the "subjective test". The second sentence refers to the "objective test". The ordinary person is a person with ordinary powers of self-control, taking age into account where that may be relevant: see Masciantonio v. R. at 66-67.
The fourth criticism was that the charge gave rise to an unacceptable risk of the jury's thinking that they had to make an affirmative finding of provocative words or conduct. The fifth was that the jury would not have understood that personal characteristics of the applicant were relevant to assessing the gravity of any provocation not only when they applied the subjective test but also when they applied the objective test. It will be convenient to consider those criticisms together.
Like the learned trial judge in R. v. Anderson, his Honour instructed the jury that the Crown must negative provocation and repeated that direction on several occasions. He said, for example, "... it is not necessary for the accused to establish that there was provocation. The prosecution has the onus of proof on this matter, like every other matter."; "... the prosecution has to prove that the killing was unprovoked"; "If the prosecution has not satisfied you as to the elements of provocation, then you should return a verdict of manslaughter. The onus on the issue of provocation is not on the accused but on the prosecution"; and "The accused does not have to prove that there was provocation because the onus is always on the prosecution. The prosecution has to negative provocation."
As we have already mentioned, there was no direct evidence of what occurred after the deceased re-entered the house. The prosecutor asked the jury not to speculate. As will be seen in [12] below, the judge directed them that they were entitled to draw inferences based upon what happened before and afterwards but not to speculate. That was correct, but such inferences had only to be as to what may have occurred. The question was whether provocation (to use that word as shorthand) was reasonably open on the evidence: cf. Knight v. R. (1992) 175 C.L.R. 495 at 503-504. The jury did not have to make a finding as to what did occur.
It is against that background that the following passages from the charge have to be evaluated. His Honour said:
• "You will understand that when I explain that you must decide whether the actions and words of the deceased which are said to constitute provocation, or which in this case you might infer were sufficient to constitute provocation, if you are so satisfied, caused the accused to lose his self-control."
• "In other words, can you infer that he was provocative in his words or provocative in his actions toward the accused? Can you infer that the deceased came at the accused with a weapon such as a piece of wood?" • "It is not a shut out that the accused was the original aggressor as, according to Drago Henry's account, he was when the injuries to Henry were inflicted. On the other hand, that might make you less ready to accept that the deceased was the aggressor once he had entered No. 14. It might not detract from your readiness to accept that the deceased was the originator of aggressive conduct shortly after he entered No. 14 in the light of what Drago Henry says was said outside." • "That is likely to be governed most of all by the inference you draw as to what the provocative words and actions were, if you find that the deceased offered them." (Emphasis added.)
The charge extended over two days. Some exceptions were taken at the end of the first day. Counsel for the applicant submitted that, even in connexion with the objective test, the gravity of the conduct said to constitute the provocation must be assessed by reference to relevant characteristics of the accused, for the jury must consider whether provocation of that degree of gravity could cause an ordinary person to lose self-control and act in a manner which would encompass the accused's actions. That submission was correct: see Masciantonio v. R. at 67 and 69. Stingel v. R. is a decision on the Tasmanian Criminal Code (see 320), but most of what is said at 324-332 applies equally at common law. On the present point, see especially 326.
The next morning his Honour told counsel that, as he perceived it, there were in effect three stages: the gravity of the provocative conduct had to be assessed by reference to the characteristics of the accused and that assessment was then relevant both to the subjective and to the objective test. He gave the jury a redirection which repeated and emphasized that the burden of proof lay on the Crown to negative provocation. The redirection continued:
"The first test is a subjective test concerned with a fact relating to the accused. The objective test is an assessment of opinion, where you make an objective assessment from a particular viewpoint of a particular question. But as a preliminary to that, you must make your assessment of the nature of the conduct said to constitute provocation. When I say the nature of that conduct, I talk about the nature of it, its context, its gravity, its seriousness, and you must consider that in the context of those circumstances at that particular location involving those particular men and involving that particular accused and the deceased, bearing in mind the situation that then applied and the age and the race and other relevant personal characteristics of the accused. So you assess the context, gravity, seriousness of the provocation, taking into account the personal characteristics of the accused.
It is easier in some other cases than the case which is before you because there is usually evidence, direct evidence, as to provocative conduct – that is, provocative acts, provocative words – because somebody was there who will give evidence in court. Here we do not have somebody who can give direct evidence of the allegedly provocative act or words. The deceased is dead and the accused has no memory. But you are entitled to draw inferences. You can draw reasonable inferences but you may not speculate. You can draw reasonable inferences based upon what happened beforehand and what happened afterwards. You have regard to matters, particularly the evidence of Drago Henry. You have evidence as to other matters beforehand, you have evidence of those who came in subsequently and as to what they found as to various matters. You have heard the arguments based upon the events leading up to what occurred in that house and what was found later. You make your assessment of the allegedly provocative conduct, taking into account the relevant characteristics, the age and the race, of the accused.
Then you apply the first test, and the first test is the subjective test. In applying this test you are concerned with this particular accused and you take into account his characteristics. Did he, as a result of the allegedly provocative conduct, lose control? And the second part: Did the accused commit the acts which caused the death during that period of loss of self-control?
The next part you may not get to. If the prosecution has satisfied you that you answer 'No' to either of those parts of the first question, you do not have to get to the objective test. The objective test means that you put yourself in the position of a hypothetical, ordinary, sober person, not with the characteristics of the accused for the purpose of the objective test. You then assess from the perspective of the ordinary, sober person whether the ordinary, sober person of the age and in the same position as the accused was in could not have lost his self- control, and the second part, could not have gone on to kill the deceased. So that is a control mechanism of an objective assessment looked at from the viewpoint of the ordinary, sober person, that you must be satisfied with respect to. If the prosecution can satisfy you to negative any one of those four matters, the prosecution has negatived provocation." (Emphasis added.)
His Honour said that he could "see general nods". No further exception was taken.
It is clear from the earlier discussion with counsel that his Honour intended the "assessment of the nature of the conduct said to constitute provocation" referred to in the first italicized passage as a preliminary to both the subjective and the objective tests, but we do not think that the jury would have understood it that way. In our view they would have understood the assessment as a preliminary to the subjective test which, they were expressly told, took into account the characteristics of the accused and not the objective test which, they were expressly warned, did not take into account the characteristics of the accused. His Honour meant, of course, that the objective test did not take into account the characteristics of the accused (except age, where relevant) as regards self-control, but that would not have been apparent to the jury. The distinction between an ordinary person's powers of self- control and the gravity of the provocation measured by reference to personal characteristics of the accused would not have occurred to them. They would have thought that personal characteristics were excluded altogether from the objective test. The reference to "the same position as the accused was in", especially conjoined with a reference to age, would not have dispelled that impression.
It follows that the application must succeed and the appeal be allowed. The matter of personal characteristics had a direct and obvious bearing on the case, if only because of the applicant's Aboriginal heritage and the character of the threat uttered by the deceased before he went back into the house. We have not overlooked the possibility that counsel below were in a better position than we are to assess the way in which the jury understood the charge, but the objective test as it has been developed in the leading cases is not an easy or everyday concept. See Stingel v. R. at 332, Masciantonio v. R. at 72-73 and Green v. R. at 405. Counsel knew what the judge was endeavouring to convey. With great respect, we do not think that his Honour succeeded.
That conclusion makes it unnecessary for us to decide whether the four passages set out in [10] above, together with the first italicized passage in the redirection, made this case relevantly indistinguishable from R. v. Anderson. No exception was taken to any of those passages, but that was equally true in R. v. Anderson. (It is unfortunate that that case was not cited to the learned judge. Each of the topics to which we are about to turn is touched on in the first paragraph of the judgment and the danger of inadvertently suggesting that the jury must first find provocation before considering its effect on the accused and on an ordinary person is illustrated by the facts.) The impression may well have been conveyed to the jury that they had to make an affirmative finding that there were provocative words or conduct.
Rather than pursue that question, we think it would be more profitable to highlight some matters of recurring importance:
1. It is notoriously difficult to explain to a jury that provocation is not an affirmative defence but something the Crown must negate, and then to relate that proposition to the facts, without inadvertently suggesting that an onus, however limited, lies on the accused: cf. Moffa v. R. at 610-611. It is therefore wise to tell the jury that -
(a) it is always difficult to give directions about provocation in a way which completely avoids any suggestion that the accused has to prove something; (b) any such suggestion is completely wrong; and (c) provocation is not a defence in the usual sense of the word but something which the Crown must exclude beyond reasonable doubt. Similar difficulties confront a judge charging a jury on self- defence or duress. See and compare R. v. Dziduch (1990) 47 A.Crim.R. 378 at 381 and R. v. Abusafiah (1991) 24 N.S.W.L.R. 531 at 545.
2. The objective test is whether the provocative words or conduct, measured in gravity by reference to the personal situation of the accused, could have caused an ordinary person to lose self- control to the extent that the accused did: see Stingel v. R. at 325 and Masciantonio v. R. at 69. (Putting recklessness to one side, as the High Court did in Masciantonio v. R. at 66, it is the formation of an intention to kill or do really serious physical injury and the carrying out of that intention which are the important considerations, rather than the precise way in which the accused reacted: see Moffa v. R. at 605 and Masciantonio v. R. at 67 and 69-70.) In Stingel v. R. "could" and "might" were regarded as synonyms at 329, 331 and 335. See also Osland v. R. (1998) 159 A.L.R. 170 at [170]. In directing a jury, it is acceptable to use "might" rather than "could", preferably saying that "might" in this context means the same thing as "could". Experience shows that there is less chance of the judge's accidentally transposing "would" and "might" or of the jury's mishearing what the judge says. The corollary of both "could" and "might" is the Crown's establishing that an ordinary person "would not" have lost self- control: see, for example, Masciantonio v. R. at 71.
3. All the elements of murder must have been proved beyond reasonable doubt (and self-defence excluded if self-defence is an issue) before any question of provocation arises. If the jury reach that question, the Crown must also prove beyond reasonable doubt that the killing was unprovoked in the relevant sense, for otherwise the offence will be manslaughter and not murder. It follows that they must acquit the accused of murder if there is a reasonable possibility that the killing was provoked. To explain provocation that way is not contrary to Green v. R. (1971) 126 C.L.R. 28, any more than the standard direction in cases involving circumstantial evidence that the jury must acquit the accused if there is a reasonable hypothesis consistent with innocence. Similar directions have been approved by distinguished judges in cognate circumstances. Compare Morgan v. Colman (1981) 27 S.A.S.R. 334 at 337 proposition 8 and 339 proposition 8 per Wells, J., with whom Mitchell, A.C.J. and White, J. agreed, and R. v. Abusafiah at 544- 545 per Hunt, J., with whom Gleeson, C.J. agreed and Mahoney, J.A. agreed generally. See also Moffa v. R. at 610 ("reasonably possible account") per Barwick, C.J., Green v. R. (1997) 191 C.L.R. 334 at 340 ("allow the possibility") per Brennan, C.J. and R. v. Best [1998] 4 V.R. 603 at 609 line 51 to 610 line 5. An alternative expression is a possibility that is reasonably open on the evidence: see [9] above and Moffa v. R. at 611.
4. The jury may be told, for example, as part of a charge on provocation in an appropriate case, that they must find the accused not guilty of murder if there is a reasonable possibility –
(a) that provocative words or conduct caused him to lose self-control and kill the deceased in the heat of passion; and also (b) that a person with ordinary powers of self-control (of the same age as the accused where age may be relevant) might, in the same circumstances, have lost self-control to the point of forming an intention to kill or do really serious physical injury and carrying that intention out, and that the gravity of the provocation is to be assessed having regard to the personal characteristics of the accused when they are considering both those questions. Although there is more than one way of explaining provocation, just like self-defence or duress, the reasonable possibility method, introduced by a direction that the Crown must exclude provocation beyond reasonable doubt, is usually to be preferred: see and compare R. v. Lanciana (1996) 84 A.Crim.R. 268 at 271 and R. v. Kurtic (1996) 85 A.Crim.R 57 at 63.
For the reasons expressed earlier in this judgment the conviction must be quashed and a new trial of the applicant directed. We express our appreciation to Mr. Hicks for the written submissions that he filed, at the invitation of the Court, after the close of argument.
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