Regina v Bowhay

[2000] NSWCCA 54

Reported Decision: [2000] A Crim R 271

New South Wales

Court of Criminal Appeal

CITATION:	Regina v Bowhay [2000] NSWCCA 54
FILE NUMBER(S):	CCA 60011/99
HEARING DATE(S):	25 October 1999
JUDGMENT DATE:	14 March 2000
PARTIES :	Regina v Adam John Bowhay
JUDGMENT OF:	Stein JA at 1; Hulme J at 25; Greg James J at 67

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S) :	70074/97
LOWER COURT JUDICIAL OFFICER :	Dunford J

COUNSEL :	S J Odgers (Appellant) R Hulme (Respondent)
SOLICITORS:	Conditsis & Associates (Appellant) Director of Public Prosecutions (Respondent)
CATCHWORDS:	MURDER - appeal on conviction - whether sufficient evidence capable of constituting provocation for it to be left to jury - whether trial judge erred in summing up on provocation - whether trial judge erred in written directions provided to jury on provocation - whether written direction contrary to Green v The Queen - s 6 Criminal Appeal Act 1912 - whether substantial miscarriage of justice - whether accused denied fair chance of acquittal - appeal against sentence - whether manifestly excessive
LEGISLATION CITED:	Crimes Act 1900; ss 23(1), 23(2)(a), 23(2)(b) Criminal Appeal Act 1912; s 6
CASES CITED:	Glennon v Regina (1994) 179 CLR 1 Green v The Queen (1997) 191 CLR 334 Krakouer v R (1998) 72 ALJR 1229 Masciantonio v R (1995) 69 ALJR 598 Mraz v Regina (1955) 93 CLR 493 Quartermaine v Regina (1980) 143 CLR 595 Regina v Storey (1978) 140 CLR 364 Stingel v The Queen (1990) 171 CLR 312 Wilde v Regina (1988) 164 CLR 365 Woolmington v DPP [1935] AC 462
DECISION:	Appeal on conviction dismissed; Leave to appeal against sentence granted; Appeal against sentence dismissed

IN THE COURT OF
CRIMINAL APPEAL

No. 60011/99
STEIN JA
HULME J
Greg JAMES J

Tuesday, 14 March 2000

REGINA v Adam John BOWHAY


MURDER - appeal on conviction - whether sufficient evidence capable of constituting provocation for it to be left to jury - whether trial judge erred in summing up on provocation - whether trial judge erred in written directions provided to jury on provocation - whether written direction contrary to Green v The Queen - s 6 Criminal Appeal Act 1912 - whether substantial miscarriage of justice - whether accused denied fair chance of acquittal - appeal against sentence - whether manifestly excessive.

The appellant, Adam John Bowhay was convicted on a charge of murdering Steven Lindsay Jarvis at Casino on 9 March 1997. He was tried and found guilty in the Supreme Court, and on 18 December 1998 was sentenced to a minimum term of 16 years with an additional term of 7 years.

This is an appeal against both conviction and sentence. The appellant submitted that the trial judge erred in giving directions to the jury on the issue of provocation.

Held (Stein JA, Greg James J agreeing):

Although far-fetched, there was sufficient evidence capable of constituting provocation for it to be left to a jury.

Contra Hulme J:

The issue of provocation should not have been left to the jury. The evidence was not sufficient to satisfy the minimum requirements of self control contemplated by s 23(2)(b) Crimes Act 1900.

Held (Stein JA, Hulme, Greg James JJ agreeing):

There was no misdirection resulting from failure of the trial judge to comply with Green v The Queen (1997) 191 CLR 334.

Held (Stein JA, Greg James J agreeing):

There was a misdirection by his Honour under s 23(2)(b) Crimes Act 1900. However, the proviso to s 6 Criminal Appeal Act 1912 should be applied, there being no fundamental error in the conduct of the trial. The misdirection did not deny the appellant a fair chance of acquittal: there was no real possibility of any substantial miscarriage of justice. Any jury, acting reasonably, would have inevitably convicted the appellant of murder.

Contra Hulme J:

There was a misdirection under s 23(2)(b). His Honour erred in requiring the jury to consider which intention, to kill or to inflict grievous bodily harm, the accused had. The subsection states a composite test of what the conduct of the deceased could have induced and the jury should have been directed accordingly. The effect of his Honour’s error was to remove from the jury’s consideration the defence case on the issue of provocation.

Had it been proper for provocation to be left to the jury, the error was so significant that the proviso could not apply. The effective removal of this issue from the jury’s consideration would make it impossible to conclude there was no substantial miscarriage of justice.

Held (Stein JA, Hulme and Greg James JJ):

The sentence was not, in all the circumstances, excessive.

ORDERS


1. Appeal on conviction dismissed.

2. Leave to appeal against sentence granted.

3. Appeal against sentence dismissed.

OoO

IN THE COURT OF
CRIMINAL APPEAL

No. 60011/99
STEIN JA
HULME J
Greg JAMES J

Tuesday, 14 March 2000

REGINA v Adam John BOWHAY
JUDGMENT

1 STEIN JA: This is an appeal against the conviction of the appellant Adam John Bowhay on a charge of murdering Steven Lindsay Jarvis at Casino on 9 March 1997. The appellant pleaded not guilty and was tried in the Supreme Court before Dunford J and a jury of twelve. On 4 December 1998 he was found guilty and on 18 December 1998 sentenced to a minimum term of 16 years with an additional term of 7 years. The appellant also appeals against sentence. 2 The appeal against conviction was instituted on ten grounds but one only remains for consideration. That is ground 5, dealing with the issue of provocation. In his summing-up Dunford J dealt with provocation at some length. The accused’s legal representative at the trial, Mr Conditsis, took objection. Subsequently, and prior to the resumption of the summing-up, the jury provided a note to his Honour asking for written directions as to what constituted provocation. 3 Before proceeding further I should refer to the submission made by the Crown that provocation should not have been left to the jury. The Crown submits that the appellant’s loss of self-control could not be said to have been induced by any conduct of the deceased towards or affecting the accused, s 23(2)(a) Crimes Act 1900 (the Act). Although in my assessment it was a very thin case, even far-fetched, there was, in my opinion, sufficient evidence capable of constituting provocation for it to be a jury question (Stingel v The Queen (1990) 171 CLR 312). It should also be noted that the Crown concedes that it probably did not submit at the trial that provocation should not have been left to the jury. 4 His Honour gave a detailed ruling on the provocation issue (to be found at AB Vol 6, pp 103 f - j) indicating that he would direct the jury in writing. The written directions to the jury on provocation are to be found at AB Vol 6, pp 103 a - e. 5 As I understand the submission of Mr Odgers, on behalf of the appellant, the error alleged is essentially twofold. 6 First, Dunford J erred in his written direction at p 103 c.7 and in the summing-up at paras 115, 117 and 119. 7 The paragraph in the written direction at 103 c provided:

If you consider that an ordinary person in these circumstances could have formed an intention to cause serious injury but not an intention to kill, but are satisfied that the accused formed an intention to kill, that is not the possible response of an ordinary person, then the Crown would have negatived provocation and the accused would be guilty of murder.


This direction is maintained by Mr Odgers to be contrary to s 23(2)(b) of the Act and to be insufficiently clear that it was applying the ordinary person test.

8 Sections 23(1) and (2) of the Act provide:

23 (1) Where, on the trial of a person for murder, it appears that the act or omission causing death was an act done or omitted under provocation and, but for this subsection and the provocation, the jury would have found the accused guilty of murder, the jury shall acquit the accused of murder and find the accused guilty of manslaughter.

(2) For the purposes of subsection (1), an act or omission causing death is an act done or omitted under provocation where:


(a) the act or omission is the result of a loss of self-control on the part of the accused that was induced by any conduct of the deceased (including grossly insulting words or gestures) towards or affecting the accused; and

(b) that conduct of the deceased was such as could have induced an ordinary person in the position of the accused to have so far lost self-control as to have formed an intent to kill, or to inflict grievous bodily harm upon, the deceased,


whether that conduct of the deceased occurred immediately before the act or omission causing death or at any previous time.

9    Second, it is submitted that his Honour erred in his written direction at p 103 c.3. This stated:

When you are considering whether the accused was actually provoked, you consider him with all his personal characteristics, including his age, sex, physical features, personal attributes, past history, whether or not intoxicated by drugs at the time, but when you come to consider whether an ordinary person provoked to the same degree of severity and for the same reasons as the accused could have formed the intention to kill or inflict serious injury you disregard the particular characteristics of the accused except his age and have regard to the possible reactions of an ordinary person with the minimum powers of self control of an ordinary person.

10    This direction is said to be contrary to Green v The Queen (1997) 191 CLR 334 per McHugh J at 368 - 369. 11 Dealing with this aspect, the alleged failure to comply with Green, I reject the submission made on behalf of the appellant. The direction is said to be inadequate. Its inadequacy is claimed to be linked to the earlier alleged misdirection in para 119 of the summing-up. However, at its highest, it appears that it is really being said that Dunford J omitted the words ‘who has been’ before ‘provoked’ in line 4 above quoted or ‘already’ before ‘provoked’. But in my view the addition of these words does not alter the meaning. The meaning is apparent without these words and it is the same. 12 As to the first aspect, the written direction at p 103 c.7 said not to be authorised by s 23(2)(b) of the Act, I am prepared to approach the appeal on the assumption, accepted by the Crown, that there was a misdirection in the way Counsel for the appellant has submitted. I accept that there was an error. However, in my opinion, it does not assist the appellant because it is very plain that the proviso to s 6 of the Criminal Appeal Act 1912 should be applied. I add that in my opinion it does not follow from provocation being a matter for the jury that the proviso cannot be applied. 13 On the assumption that there was a misdirection by his Honour under s 23(2)(b), in the manner submitted by counsel for the appellant, it is apparent that it was far from a fundamental error. It did not, in my opinion, occasion any substantial miscarriage of justice. Of course, the proviso should not be applied where there is a fundamental error in the conduct of a trial (Quartermaine v Regina (1980) 143 CLR 595). This naturally begs the question of what constitutes a fundamental error. 14 In Wilde v Regina (1988) 164 CLR 365 at 373 Brennan, Dawson and Toohey JJ explained that the proviso had no application where an irregularity had occurred which is such a departure from the essential requirements of the law as to go to the root of the trial. It means that the accused has not had a proper trial at all. Their Honours continued that there was no rigid formula to determine whether an error was fundamental. No mechanical approach should be adopted and each case depended upon its own facts. 15 The High Court returned to the question in Glennon v Regina (1994) 179 CLR 1. In the joint judgment of Mason CJ, Brennan and Toohey JJ, their Honours referred to Wilde and that it was appropriate to have regard ‘to the strengths and weaknesses of the prosecution and defence cases in order to assess the gravity and significance of the error’ (at 8). 16 I have already referred to the appellant’s case on provocation being very thin and one which may properly be seen to be far-fetched. On the other hand, the Crown case was very strong and its case negativing such provocation as alleged by the appellant was overwhelming. The facts also reveal that the appellant’s loss of control did not occur until after the fatal assault was well underway, indeed two-thirds through. I do not believe that when one examines the trial that it can be said that the trial judge’s misdirection on provocation was so fundamental as to vitiate the trial. The factual matrix which underlay the directions on provocation make it plain that the misdirection was not a fundamental irregularity in the trial, especially in the context that it is not suggested that there was any other misdirection by the trial judge (Glennon at 8). 17 In my opinion, even if the jury had been appropriately instructed on this aspect of provocation, a jury, acting reasonably on the evidence before them, would have inevitably convicted the appellant of murder. In discussing the proviso in Mraz v Regina (1955) 93 CLR 493 at 514 - 515, Fullagar J said that if by reason of the error, the appellant lost a chance of being acquitted which was fairly open to him, there had been a miscarriage and the proviso could not be applied. If he had not, there was no miscarriage of justice. His Honour referred to other formulations, which while they contained differences of expression, stood for the same broad principle. Reference was made to Woolmington v DPP [1935] AC 462 where Lord Sankey said:

We cannot say that if the jury had been properly directed they would have inevitably come to the same conclusion. [at 482 - 483]


In referring to Lord Sankey’s use of the word ‘inevitable’, Fullagar J said that his Lordship was obviously referring to a reasonable and not a perverse jury.

18    In Regina v Storey (1978) 140 CLR 364 Barwick CJ put it in these words:

If error be present, whether it be by admission or rejection of evidence, or of law or fact in direction to the jury, there remains the question whether none the less the accused has really through that error or those errors lost a real chance of acquittal. Put another way, the question remains whether a jury of reasonable men, properly instructed and on such of the material as should properly be before them, would have failed to convict the accused: or were the errors such that if they were removed a reasonable jury might well have acquitted. [at 376]

19 By reason of the misdirection the appellant was not, in my estimation, denied a fair chance of acquittal of murder. I am satisfied that there was no real possibility that justice miscarried. 20 On the evidence at the trial, and the facts which are summarised in his Honour’s judgment on sentence, no jury, acting reasonably, could fail to be satisfied beyond reasonable doubt that the conduct of the deceased was not of such a nature as to be sufficient to deprive any hypothetical ordinary 18 year old, provoked to the same degree as the appellant was or might have been, of the power of self-control to the extent that he would form either an intention to kill or to inflict grievous bodily harm (s 23(2)(a)) or would have entertained a reasonable doubt about whether the objective test in s 23(2)(b) was satisfied. 21 As I have said, it cannot be gainsaid that the Crown case of murder was a very strong one. The defence case on provocation was, on the other hand, very weak even when considered in its most favourable light to the accused. Further, the Crown case on negativing provocation was an overwhelming one. This can be seen from how his Honour summarised the relevant facts in his judgment on sentence:

He [the appellant] then described how they met the deceased, that he had between six and twelve beers over the whole night, how they went to his room and the deceased was paying unwanted attention to RF by touching her, putting his arm around her and trying to put his hands on her, and saying she was his, so the prisoner invited him to walk with them to a party, but there was no party, and he intended to take him outside and “flog him”.

He said that when they got to the reserve he punched the deceased in the face with force, that the deceased pulled a knife, and so the prisoner pulled one of the Swiss Army knives stolen from Macksville, put his arms around the deceased’s neck and threw him to the ground, straddled him by pinning him down with one knee on each arm, strangled him with his hands, and punched his head, and then stabbed him several times in the throat with the Swiss Army knife, on one occasion “hacking into his throat with it”. Not knowing if he had “killed him good enough” he jumped on his chest, jumped on his head, kicked him in the ribs. He said, “I just schitzed right on him … I never thought he could get enough, so I just kept on jumping on him” (A254).

Questions and answers 314, 315 and 360 to 362 were as follows:

Q314. “Why did you stab him then?
A. Because if I had of left him there he could have jumped up. He could have had a crack at me. I didn’t know if he was dead or what. I made sure he was dead. I stabbed him. He deserved it anyway. I’m not sorry I done it.
Q315. Why did he deserve it?
A. Because mate, look at the way he talked to my girlfriend, touched her. He was probably a child molester ….
Q360. After you left Casino, let’s say when you were on your way to Whiporie how did you feel about what happened with Steve when you stabbed him?
A. Didn’t worry me.
Q361. Do you still feel that way?
A. Yep. I regret stabbing him, yeah. He probably still should be alive, but if he hadn’t pulled out a knife on me, if he had of treated my girlfriend with a bit more respect then he wouldn’t have got it would he. Anyone who doesn’t treat her with respect will get the same thing.
Q362. Is that the reason you stabbed him?
A. Yeah. I was only going to bash him to start with, but he wanted to pull out a knife thinking he was a hero. He ain’t no hero now.”
In his sworn evidence at the trial the prisoner conceded that the deceased did not pull a knife on him and that he had not acted in self defence.

He said he was grossly affected by alcohol and drugs, including cannabis, amphetamines, and heroin, which he had been using constantly since leaving the Central Coast and that he was provoked into taking the deceased down to the park area to give him a flogging by the deceased’s unwelcome and inappropriate approaches to, touching of, and remarks about, RF.
He said he warned the deceased a number of times, and after taking two of the deceased’s Serenace tablets, which he saw in the deceased’s room, formed the intention of taking the deceased out and flogging him. He also thought the deceased could have been a child molester or a rapist.
He said when they got to the reserve he punched Jarvis about three or four times and threw him to the ground where he started screaming and yelling, whereupon the prisoner sat on his chest. He said the deceased was trying to scratch his face and was still screaming, so he told him to be quiet, and put his knees on top of his arms to stop him scratching his face. The deceased continued to scream, so the prisoner put his hands around his neck to stop him screaming, but when he released his grip the deceased started to scream again. So he asked RF for a knife which he intended to use to threaten or scare the deceased but not to kill him. RF, who was nearby, opened the blade and handed the knife to the prisoner, but he has no recollection of what happened next, although he realises he must have stabbed him because he then saw lots of blood and the knife in his hand. He then lost control and jumped on the deceased’s chest a number of times.

22    In my opinion, the significance of the distinction, contained in the conceded error, could have weighed with the jury not at all having regard to the evidence as a whole. It would have made no difference to the outcome of the trial. It cannot be concluded that the appellant lost a chance of acquittal which was fairly open to him. It certainly cannot be concluded that it occasioned any substantial miscarriage of justice. As I have said, a jury, acting reasonably, would have inevitably convicted the appellant of murder. 23    The appeal on conviction should be dismissed. 24    The appellant also appeals the severity of the sentence imposed on him. The submission was made orally and not included in the written submissions. The sentence was undoubtedly a very heavy one. No specific error is alleged to have been made by his Honour. Rather it is submitted that his Honour’s sentence was manifestly excessive in all the circumstances. In my opinion, the trial judge committed no error in sentencing and the sentence was not, in all the circumstances, excessive. It was a grave offence which called for a heavy sentence. Leave to appeal should be granted but the appeal against sentence should be dismissed. 25    HULME J: Following a trial which commenced on 9 November 1998, Adam John Bowhay was convicted before Dunford J and a jury, sitting at Lismore, on a charge “that he on or about 9 March 1997 at Casino… did murder Steven Lindsay Jarvis”. On 4 December 1998 the jury returned a verdict of guilty and on 18 December 1998 his Honour imposed a sentence consisting of a minimum term of 16 years penal servitude dating from 20 March 1997, the date of arrest, and a additional term of 7 years commencing on 20 March 2013. 26    Mr Bowhay has appealed against his conviction and seeks leave to appeal against sentence. 27    The only ground of appeal against conviction ultimately pursued was that “His Honour erred in giving both his oral and written directions to the jury on the issue of provocation…”. In the grounds of appeal some further particularity of this complaint was provided but it is unnecessary to record those details. 28    The evidence bearing on the question of provocation was, almost exclusively, provided by the Appellant, firstly, in an interview with police officers shortly after his arrest and, secondly, during the course of his giving evidence before the jury. His account was to the following effect. 29    For some weeks prior to the offence, he and a 14 year old girlfriend, RF, had been drifting around between the New South Wales Central Coast and Southern Queensland. During this period he ingested a substantial quantity of drugs including heroin, amphetamines, marijuana and alcohol. The day and night before the deceased’s death were spent in Kyogle and on that day he injected himself with a large dose of heroin, smoked 7 or 8 or more cones of marijuana and spent a good deal of the day drinking. 30    On the day of the deceased’s death, the Appellant drank about 6 beers and smoked some marijuana and in the evening he and RF took a lift to Casino. There the deceased introduced himself. At an early stage of their acquaintanceship the deceased told the Appellant that he was an ASIO agent, that he had been banned from a number of hotels in Casino and kicked out of one earlier that day. He also said he was going to take RF away from the Appellant. Within ten minutes or so of their meeting and whilst walking to a hotel the deceased put his arm around RF. She pushed it off and the Appellant told the deceased he shouldn’t be doing that. 31    Some beer was consumed, more was purchased and the deceased invited the Appellant and RF to go back to the hotel where he was staying. On the way to the hotel, the Appellant was between the deceased and RF. The deceased moved to the other side of RF and put his arms around her and put his hands on her breasts rubbing them. RF responded by moving to the other side of the Appellant. This incident was repeated about five times and made the Appellant angry. He warned the deceased not to do it. The Appellant thought the deceased was “off the planet”, “drunk” and “crazy”. 32    Nevertheless, the three went inside the deceased’s room, drank some more beer and the deceased again put his arm around RF’s neck and rubbed her breasts. RF moved away. The deceased’s actions made the Appellant “quite angry”. “It crossed my mind he may have been a child molester or a rapist or something of that nature.” The Appellant told the deceased “This is the last time I’m going to warn you. You shouldn’t be touching her like that.” Almost immediately thereafter the three left the room. 33    In consequence of the deceased’s actions, the Appellant formed the view that he “wanted to flog him”. The Appellant invented a story of going to a party and with that excuse inveigled the deceased outside with a view to starting a fight with him - one or two punches. They walked some distance to a park. The Appellant asked the deceased “what would you do if I smacked you in the mouth”. The deceased replied “I would probably ask you why” and the Appellant then punched the deceased about four times.

34    The Appellant then threw the deceased to the ground, the latter falling on his back. The deceased started to scream and yell. The Appellant got on top of him and, concerned that someone might hear the screaming, told the deceased to be quiet and put his hands around the deceased’s throat in a choke like hold. The screaming stopped. The Appellant took his hands away at which stage, according to the Appellant’s ERISP, the deceased “didn’t look too healthy in the face”. The deceased started to scream again. The Appellant asked RF who was nearby to give him a knife with which to threaten the deceased and then after she had done so, he commenced to stab the deceased.

35    In his ERISP the Appellant had told the police that his own handling of the knife was in response to the deceased pulling out a knife but in evidence he said that the deceased had not had one. After stabbing the deceased, the Appellant got up, lost control and jumped on the deceased’s chest. In his ERISP the Appellant had said that after he had stabbed the deceased two, three, four or five times “I didn’t know if he was dead or not proper - didn’t know if I had killed him good enough, so I jumped on his chest, jumped on his head, kicked him in the ribs. I just schitzed right out.” 36    His Honour’s summing up commenced on Wednesday 2 December 1998 and it was on that day that he gave the jury his oral directions on the issue of provocation. On the following morning, His Honour turned firstly to another issue, that of diminished responsibility and then moved to a summary of the evidence. The transcript records that after the morning adjournment on that day His Honour informed the Court that he had received a note in the following terms from the jury:-

“Some confusion exists as to what constitutes provocation relevant to this case. Could the response be given in written form”.

37    In the absence of the jury, there followed some discussion on the topic between His Honour, the Crown Prosecutor and the solicitor appearing for the Appellant, and when the jury returned, His Honour informed them that the directions sought would be typed during the lunch hour. Towards the end of the summing-up, these written directions on the topic of provocation were given to the jury. There was no further explanation on the topic, His Honour inviting the jury to read the directions for themselves and send another note if they had any further queries. 38    The jury retired to consider their verdict at 3.40pm that day, were released overnight and returned with a verdict of guilty at 2.30pm on the following day. 39    The written directions on the topic of provocation which His Honour provided to the jury extended to a little over 4 pages, reasonably closely typed. It is unnecessary that I set this document out in full. It included the following. (For convenience of reference I have numbered the paragraphs and underlined the passages to which exception is taken.):-

“(i) Provocation means conduct or words by the deceased towards or affecting the accused which induces or causes a loss of self control on the part of the accused which were such as could have induced an ordinary person in the position of the accused to have so far lost his self control as to have formed an intent to kill or inflict serious injury on the deceased…
(ii) Thus, if the conduct of the deceased which may have provoked the accused and which may have induced him to have so far lost his self control as to form an intention to kill or inflict really serious bodily injury was not such as to cause the ordinary person in the position of the accused (that is, the person with the ordinary or common range of temperaments of a person of the accused’s age and maturity) to have formed the intention to kill or inflict serious injury, then the crime is not reduced from murder to manslaughter.
(iii) You should understand that when you are dealing with this third alternative, that is whether it could have induced or caused an ordinary person to so lose his self control, you are considering the possible reactions of an ordinary person in the position of the accused, not his inevitable, or even probable reaction, but his possible reaction. The ordinary person you must also understand is a person who is sober, unaffected by alcohol or drugs and who has the powers of self control within the limits of what is ordinary for a person of the accused’s age and maturity.
(iv) When you deal with the earlier consideration that is whether the accused did, in fact, lose his self control as a result of provocative conduct, you take him as he was at the time, with all his characteristics and state of sobriety or intoxication and so on.
(v) To explain the last three paragraphs:-
(vi) When you are considering whether the accused was actually provoked, you consider him with all his personal characteristics, including his age, sex, physical features, personal attributes, past history, whether or not intoxicated by drugs at the time, but when you come to consider whether an ordinary person provoked to the same degree of severity and for the same reasons as the accused could have formed the intention to kill or inflict serious injury you disregard the particular characteristics of the accused except his age and have regard to the possible reactions of an ordinary person with the minimum powers of self control of an ordinary person.
(vii) Relevant to this question is whether an ordinary person in the position of the accused as I have explained could have lost self control to the extent of forming an intention to kill, or to the extent of forming an intention to cause serious physical injury.
(viii) If you consider that an ordinary person in these circumstances could have formed an intention to cause serious injury but not an intention to kill, but are satisfied that the accused formed an intention to kill, that is not the possible response of an ordinary person, then the Crown would have negatived provocation and the accused would be guilty of murder.
(ix) Another consideration is that although the reaction to the provocation need not be immediate it must still be operative at the time of the acts causing death.
(x) For example, and I am not suggesting what conclusions of fact you should come to (the facts are entirely a matter for you) but if you found that the accused reacted to the provocation by forming an intention to hurt, or injure, or flog, the deceased, but at a later stage formed an intention to kill him, not because of his conduct towards RF but in order to shut him up, stop him calling out for help, or for some other reason, or for no reason except that he wanted to, he would not then be acting under provocation at the time of the killing, and if the other elements of the offence were established he would be guilty of murder.
(xi) Alternatively, if you were satisfied that the accused formed the intention to kill the deceased before they left the Commercial Hotel you would have to ask yourselves whether an ordinary person in the position of the accused provoked in the manner and to the extent that the accused had been provoked, could have so lost his self control as to have formed the intention, not just to seriously injure, but formed the intention to kill the deceased.”

40    His Honour told the jury that the terms of this document substantially accorded with his oral directions apart from some slips of the tongue. However in the case of three of the paragraphs there were some differences which should be noted. The oral directions which corresponded with the paragraphs I have numbered (ii), (iii) and (viii) were in the following terms (continuing the numbering).:-

(xii) Thus, if the conduct of the deceased which may have provoked the accused and which may have induced him to have so far lost his self control as to form an intention to kill or inflict really serious bodily injury was not such as could have caused an ordinary person in the position of the accused, that is, the person with the ordinary or common range of temperaments of a person of the accused’s age and maturity, to have acted in that way , then the crime is not reduced from murder to manslaughter.

(xiii) When you are considering whether the accused was actually provoked, you consider him with all his personal characteristics, including his age, sex, physical features, personal attributes, past history, whether or not intoxicated by drugs at the time, and then you consider whether an ordinary person with those characteristics could have been provoked to that degree by the conduct of the deceased. But when you come to consider whether an ordinary person so provoked could have formed the intention to kill or inflict serious injury you have regard to the possible reactions of an ordinary person with the … powers of self control of an ordinary person and disregard the personal characteristics of the accused except his age. But you exclude his past history, mental state and intoxication.

(xiv) Alternatively, if you were satisfied that the accused formed the intent to kill the deceased before they left the Commercial Hotel you would have to ask yourselves whether a reasonable person in the position of the accused could have been provoked in the manner and to the extent that the accused had been provoked, could have so lost his self control as to have formed the intention, not just to injure and seriously injure, but formed the intention to kill the deceased.”

41 In the main, I have again underlined the differences. In addition, there was in paragraph (xiii) a reversal of phrases used in paragraph (vi) which did not affect the sense. 42 Section 23 of the Crimes Act, so far as is presently relevant, provides:-

“(1) Where, on the trial of a person for murder, it appears that the act or omission causing death was an act done or omitted under provocation and, but for this subsection and the provocation, the jury would have found the accused guilty of murder, the jury shall acquit the accused of murder and convict him of manslaughter.
(2) For the purposes of subsection (1) an act or omission causing death is an act done or omitted under provocation where:-
(a) The act or omission is the result of a loss of self control on the part of the accused that was induced by any conduct of the deceased (including grossly insulting words or gestures) towards or affecting the accused; and
(b) That conduct of the deceased was such as could have induced an ordinary person in the position of the accused to have so far lost self control as to have formed an intent to kill, or to inflict grievous bodily harm upon, the deceased.
whether that conduct of the deceased occurred immediately before the act or omission causing death or at any previous time.
(3) For the purpose of determining whether an act or omission causing death was an act done or omitted under provocation as provided by subsection (2), there is no rule of law that provocation is negatived if:-
(a) There was not a reasonable proportion between the act or omission causing death and the conduct of the deceased that induced the act or omission;
(b) The act or omission causing death was not an act done or omitted suddenly; or
(c) … ”

43 Paragraph (vi) was the only written direction to the jury which reflected the principle laid down by the High Court in Stingel v R (1990) 171 CLR 312, Masciantonio v R (1995) 69 ALJR 598 and Green v R (1997) 191 CLR 334 to the effect that in considering the question of provocation, a tribunal is required to consider the gravity of the conduct suggested as having been provocative, from the viewpoint of the particular accused, and to put the provocation into context the tribunal is to have regard to the attributes or characteristics (such as “age, sex, race, ethnicity, physical features, personal attributes, personal relationships or past history”) of that accused - see Stingel at 326, Masciantonio v R at 602-3, Green v R at 340, 355, 368-9. 44 Only when that gravity is appreciated, is it possible to apply the test whether the conduct of the deceased was such as could have induced an ordinary person to have so far lost self control as to have formed an intent to kill, or to inflict grievous bodily harm upon, the deceased. 45 In Green v R McHugh J accepted that this was the law but, in a passage from which the remarks of Dunford J are obviously taken, was content to avoid a separate inquiry as to the gravity of the provocation by reference to such matters and look merely at the severity and reasons therefor of the provocation on the accused. As a matter of logic, there can be, with respect, no error in that approach. Indeed counsel who appeared for the Appellant felt obliged to accept that, but for the other, and in particular earlier oral directions, the passage presently the subject of consideration, contained no error. 46 His complaint was, however, that the earlier oral direction was not withdrawn and in totality the directions on this topic were confusing. 47 There is an argument that it would have been better had his Honour withdrawn his earlier directions or identified the changes he was making. For the earlier directions did contain errors. The references to “acted” in paragraph (xii), rather than to intention, and “reasonable person” rather than “ordinary person” in paragraph (xiv) are examples. However both of these courses would have had their own disadvantages. Certainly any attempt to identify specific changes would have been calculated to confuse. Given the accumulation of the jury’s intimation that they had some confusion arising from the oral directions, that the written directions were then given to the jury and his Honour indicated that the written directions contained changes, I would be confident that it was those written directions to which, in their deliberations, the jury had regard. Thus, it does not seem to me that the complaint of “confusion” is made out or that it is necessary to reflect further on his Honour’s oral directions. 48 However, before leaving this aspect of the appeal, I would venture to suggest that, in that paragraph s23(2)(b) requires a consideration of “the position of the accused” and an “ordinary person” and, in case of the gravity of the provocation to the former, requires attention to matters subjective to him whereas in the case of the ordinary person the test is objective, there is advantage in a judge contrasting the two situations or tests and in the course of directing attention to “the position of the accused” then referring to the accused’s attributes or characteristics such as “age, sex, race, ethnicity, physical features, personal attributes, personal relationships or past history” referred to by the High Court rather than merely referring back to the degree of severity to which the accused was actually provoked. 49 Had it stood on its own, I would also have taken the view that the paragraph I have numbered (ii) contains error in its apparent explanation that an “ordinary person in the position of the accused” is a “person with the ordinary or common range of temperaments of a person of the accused’s age and maturity”. Such an explanation obviously ignores the significance of the words “in the position of the accused” and the need to appreciate the gravity of the provocation from his or her perspective.
50 However, paragraph (ii) did not stand alone. His Honour explained it, as I think, adequately in paragraph (vi). 51 As was conceded by counsel appearing for the Crown in this Court, the second passage objected to, that in the paragraph numbered (viii), does contain error. Putting aside the question of reckless indifference which is of no present relevance, jurors in a murder trial, considering the question of intent, may convict so long as they are satisfied that the accused had an intention to kill or to inflict grievous bodily harm and they are not required to decide which. Indeed, they may individually have different views. Against that background there is no basis for concluding that when paragraph (b) of s23(2) of the Crimes Act refers to a person having “so far lost self control as to have formed an intent to kill, or to inflict grievous bodily harm” it requires the jury to embark upon the task of considering which of these intentions the particular accused had. 52 By the very nature of many crimes of murder, commonly the evidence will not enable a determination of this question, a fact which also argues for the view that s23 should be construed so as to avoid the question arising. The sub-section states a composite test of what the conduct of the deceased could have induced. The jury should have been directed accordingly, not in the terms they were. 53 And the difference was of significance in the case. The addresses of the legal representatives were transcribed. They show that the Crown case (or at least a substantial part of it) was that the Appellant had formed an intent to kill the deceased prior to leaving the hotel room and that the Appellant’s actions at that stage were “cold calculated planning”. The case for the Appellant was that the Appellant did not have the intent to kill, was provoked into wanting to inflict grievous bodily harm on the deceased by the latter’s actions but during the course of inflicting grievous bodily harm he lost, or lost further, self control. 54 Against such an issue, His Honour’s error has a significance which in other circumstances it might not have. It was in effect to remove from the jury’s consideration the defence case on the issue of provocation. Although not taken away prior to counsel’s address as occurred in Green v R the effect was the same. Given the significance of the misdirection, providing there was evidence justifying the issue of provocation being left to the jury, by parity of reasoning - appreciating that the reasoning is not all the same - with the judgments of Brennan CJ (at 346), Toohey J (at 357), and McHugh J (at 371-2) in that case, the circumstances are not such where it is proper to apply the proviso. If the defence of provocation was open, and even if this Court should think it inevitable that the Crown would have satisfied the jury that the killing was unprovoked within s23, the effective removal of one of the main issues in the trial from the jury’s consideration would make it impossible to conclude that there has been no substantial miscarriage of justice - Wilde v R (1988) 164 CLR 365 at 373. c.f. Krakouer v R (1998) 72 ALJR 1229 at [37, 76-78]. 55 The Crown sought to overcome the consequences of this conclusion by submitting that the evidence bearing on the topic of provocation was such that the issue should not have been left to the jury and therefore that this Court should apply the proviso to s6 of the Criminal Appeal Act. 56 I am prepared to concede that the claim that the deceased’s death was or may have been a result of his provocation was weak, indeed, as it appears to me, very weak. Nevertheless, there was evidence of both a loss of self control on the part of the Appellant and conduct of the deceased in touching the breasts of the Appellant’s girlfriend which might fairly be regarded as affecting the Appellant and as calculated to result in some violence. In the form of drugs, drink, and the Appellant’s personality and mental condition there was evidence which might permit an argument that the deceased’s conduct was likely to be, to the Appellant, more serious than it would be to many others. That said, it is also appropriate to recognise that there was no specific evidence suggesting that this was so. It must also be borne in mind that although, according to the Appellant, the deceased’s conduct was repeated some five times, the first occurrence did not deter the Appellant and his girlfriend from going to the deceased’s hotel room, or staying there when they were free to depart after the second, third and fourth touching incidents. 57 Nevertheless, there still remains the question whether, taking the provocation from the viewpoint of the Appellant at the highest possible level which the evidence permits, an ordinary person in his position could have so far lost self control as to have formed an intention to inflict grievous bodily harm on the deceased. As is apparent, I can quite accept that the touching of the breasts of the Appellant’s girlfriend was conduct calculated to result in some violence but it is another step to accept that an ordinary person’s reaction could have been to intend violence extending as far as grievous bodily harm, whether that expression is regarded as meaning or encompassing, really serious bodily harm or any permanent or serious disfigurement. 58 While I do not seek to minimise the deceased’s conduct, in the scale of things, the touching of a girl’s breasts - which modern fashion, if not society, seeks to make attractive and an object of interest - is hardly a major affront. It is far less heinous or objectionable than much other conduct and many other offences of a sexual nature and the fact that the deceased was obviously drunk, well known to be a somewhat disinhibiting condition, tends to further reduce the seriousness of, or insult in, his offence. The circumstances were radically different from those which existed in Green v R where the Appellant asserted that he had been subjected to a homosexual approach which was forcible, persistent, a breach of trust and evoked recollections of breaches of trust on the part of the Appellant’s father when the Appellant was young. 59 Taking the provocation at the highest level available on the evidence, it could not, in my view, have been sufficient to satisfy the minimum requirements of self control contemplated by s23(2)(b). The issue of provocation should not have been left to the jury and thus the error which occurred in his Honour’s directions led to no miscarriage of justice. On this ground, it is appropriate to apply the proviso to s6 and dismiss the appeal against conviction. 60 I turn to the application for leave to appeal against sentence. Mr Odgers, appearing for the Appellant, said that he could not point to any specific error made by Dunford J in the course of his remarks on sentence and I am not conscious of any. The submission was that in all the circumstances, and in particular the Appellant’s youth and psychiatric problems, the sentence was manifestly excessive. 61 His Honour’s remarks make it clear that he was conscious of both of these factors. Indeed the Appellant’s youth was one of the factors which inspired his Honour to make the additional term a greater proportion of the minimum term than usual. His Honour also expressly recognised that the sentence he was imposing was longer than in many other cases of murder. A consideration of his Honour’s remarks reveals why. Inter alia his Honour said:-

“The majority of (the six stab wounds to the neck) were only a couple of centimetres or less deep but the major one was a zigzag shaped wound 41mm in length which penetrated the tissue immediately beneath the skin, the muscles of the neck, and in at least two points went through the back of the tongue to the front of his spin to a depth at its deepest point of 5½ cms, the penetration of the tongue at 2 points indicating two thrusting movements of the knife.
… There were also considerable internal injuries, including… fractures to the back of (3) ribs on the left side, the front of (4) ribs on the same side, and the front of (5) ribs on the right side… In the opinion of Dr Boterill, the pathologist, the cause of death was the combined effect of stab wounds to the neck, strangulation and the blunt force injuries to the trunk resulting in the fractured ribs, tears to the lining of the lung and the lung surfaces themselves, and bruising around the right kidney area.
…
Although I accept that he was using cannabis and alcohol from the age of 18 and hard drugs, including amphetamines from New Years Eve 1995/96, I do not believe he was using them to the extent he claimed, particularly in the period leading up to the killing…
I am satisfied that the deceased… may have made inappropriate comments about RF and may have put his arms around her and touched her breasts, but he was so drunk as to be quite incapable of doing any real harm. Even if he did touch RF, and giving the Prisoner the benefit of the doubt in that regard, I am satisfied that that was not the cause of what followed. The Prisoner and RF could have got up and left at any time.
I am satisfied that the Prisoner saw this almost helpless drunk as an easy target for his aggression and thought he could have some fun at the victim’s expense …
But I am satisfied to the requisite standard that in the course of inflicting the belting he found himself enjoying it and formed an intention to kill which he carried out by stabbing, strangling and stomping until he was sure the victim was dead.
I am satisfied he remembered the stabbing as he claimed in the interview. He did it because he wanted to do it, and in the interview he was proud of it and boasting of it.
Alcohol, and possibly cannabis may have made him less inhibited than otherwise may have been the case, but in no way reduced his responsibility for the offence. This was a deliberate and callous attack on one of the less fortunate members of the community, who was quite incapable of defending himself. Although not in the worst category of cases, the objective criminality is very high.
I am not satisfied that the Prisoner has shown any genuine remorse … The Prisoner was born on 17 August 1978, so that he was aged 18 ½ at the time of the murder, and is now aged 20. He had a most unfortunate childhood.”

62    After referring to the Appellant’s criminal history which apparently commenced in about early January 1996 and to the fact he had been subjected to a control order for 3 months, probation for 18 months and imprisonment for 4 months Dunford J went on:-

“He does not appear to have learnt anything beneficial from his time in custody …
He appears to have embarked on a life of crime and to have decided that Society’s rules do not apply to him.
Four psychiatrists gave evidence in the trial …
In light of this evidence I am satisfied that the Prisoner had, and has, an anti-social personality disorder as attested by Drs Strum, Milton and Delaforce, noting that his conduct demonstrates an attitude not to abide by Society’s rules, as evidenced by the break, enter and steal, car stealing, the drug and alcohol use and this particular killing with no credible motive.
He may also have some symptoms of depression, although not a major depressive illness, and a borderline personality disorder.”

63    His Honour then quoted from a report of Dr Strum:-

“Having said all this, I believe that Mr Bowhay is the net result of his upbringing but I do not think that it be the whole story. I think that Anti-social Personality Disorder is largely constitutional. … I think Mr Bowhay is capable of learning from experience… I think that, with time and future education, Mr Bowhay may possibly be at a state where he can fit into society. Poor impulse control and a tendency to run away are his most unfortunate attributes although his recent time in jail seems to have settled him down a little. The overall prognosis remains guarded.”

64    His Honour continued:-

“… Having regard to my finding of anti-social personality disorder, the protection of the community and personal deterrence assume particular importance. I note his youth and was referred to cases dealing with young offenders…
Taking into account all of the matters to which I have referred I consider that the sentence should be longer than is the case in many other murder sentences but the increase should be weighted towards the additional term rather than the minimum term because of the Prisoner’s youth, and so that, if released on parole at the expiration of the minimum term… he will then be subject, not only to supervision for a lengthy period, but also be liable to be returned to custody if he fails to behave in a lawful manner.”

65    Reflection on the deceased’s injuries alone is chilling. So also is a consideration of the Appellant’s actions. So also is viewing the video record of his interview with police where, at least unemotionally, he talks of what he did. Even were I to put aside the findings of Dunford J that the Appellant set out to have fun and enjoyed some of his actions and in the ERISP was boasting, I would nevertheless regard the sentence imposed as a proper one. But for the Appellant’s youth, the sentence could well have been considerably longer. One can but hope that before the Appellant is released, he will have taken the opportunity to learn and accept the standards of behaviour required in any civilised society. 66    The appeal against conviction should be dismissed. Because of the length of the sentence imposed, leave to appeal against sentence should be granted, but the appeal should be dismissed. 67    GREG JAMES J: I agree with Stein JA.

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