Supreme Court of Victoria|1999-10-20|Before: Cummins J

DPP v Leonboyer [1999] VSC 450 (20 October 1999)

CRIMINAL LAW - murder - provocation - confession by woman of infidelity - taunt - words only - provocation not open.

The deceased, Ms Morales, was born in Colombia on 11 January 1978 and was 19 years of age at the time of her death. She and her sisters came to Australia in May 1993, her mother having earlier done so. She was a secondary school student at the time of her death. The accused was fluent in English; the deceased significantly less so.

The accused and the deceased met in August 1993. They became engaged on Sandra's 18th birthday, 11 January 1996. Often they lived together at one or another of the respective family's homes. The relationship was a passionate and uneven one. In February 1997 the relationship had apparently broken. The engagement was terminated by Sandra. The accused sought to re-establish the relationship and the engagement. They recommenced having sexual intercourse, the last occasion being Saturday 3 May 1997. On Monday 5 May 1997, the day of the fatal stabbing, they had arranged to take an apartment together in St.Kilda. During the period of the separation Ms Morales, unknown then to the accused, had on a number of occasions had sexual intercourse with one Fernando Gonzalez. She last had sexual intercourse with him on Sunday 4 May 1997.

On Monday 5 May 1997 the accused and Ms Morales met in the Supreme Court library, went to St.Kilda to sign a lease for an apartment that they were to take together, and went shopping. Ms Morales had a pregnancy test, which was negative, the accused giving evidence that they were wishing to start a family. They went together to the accused's family premises in Carlton. She was there to stay the night. They watched TV with the family. Both were sleepy. Shortly after 10.30 p.m. Ms Morales went to bed in the accused's bedroom. About half an hour later the accused went to the bedroom. Five or ten minutes later family members heard Ms Morales scream loudly. They rushed into the bedroom. Ms Morales was bleeding seriously. The accused was on the bed staring at the ceiling, eyes flickering, mouth open, face distorted. Shortly afterwards he said "I want to die". In June 1997 he told a friend that in the bedroom Ms Morales had told him "she'd been having an affair."

The accused in the bedroom had attacked Ms Morales with a knife and stabbed her numerous times to the back and to the back of the head. There were nine stab injuries to the head, eight to the skull and a ninth to the right ear, some four to five millimetres in depth not penetrating the skull. There were 12 incised injuries to the general centre of the back, four of which penetrated the right lung and three of which penetrated the left lung, and two further injuries, one above the groin and one on the left shoulder, all inflicted by a knife. Ms Morales died the next day from acute blood loss secondary to multiple stab injuries compounded by the collection of blood and air within the chest cavity. All the injuries were inflicted by a knife wielded by the accused. Ms Morales had no defence injuries.

The accused in interview said to the police that he could not remember beyond going into the bedroom and giving Ms Morales a hug.

The accused in evidence, in this and in the previous trial, in which there was no unanimity of verdict reached, gave further evidence essentially along the following lines. That when he went into the bedroom he raised with Sandra a topic which had been discussed briefly by them earlier in the day, of members of her family splitting up. He said: "You're not concerned about that happening to us; we're different, aren't we?" The deceased replied: "I'm not sure we are." The accused said: "What do you mean?" The deceased said that she did not love him any more. She had been seeing someone else. The accused said: "What are you trying to say? Are you having sex with him?" The deceased suddenly announced in anger that she could fuck anyone she wanted to fuck. She said she had been fucking someone else, and then in Spanish said "he did it better than you did." The accused understands both Spanish and English.

The accused in evidence in this and the previous trial said he did not remember what happened after that until he found himself on the bed with a watery sensation all over his body. Everything seemed dreamlike. The situation seemed unreal. He could hear voices. Everything seemed distorted and did not seem real.

It is evident that in the bedroom the accused picked up a (non fixed blade) knife, which was one of two he and Ms Morales had purchased some time before for fishing purposes, probably opened it, and attacked her in the way that I have described.

The central issue in this case is whether the prosecution proves beyond reasonable doubt that the acts of the accused were conscious and voluntary. That is to say the central issue in this case is one of automatism.

The type of automatism here is psychological blow automatism, psychiatric and psychological evidence having been led by the defence that at the time of the stabbing the accused was highly likely not to have been aware of what he was doing. Called in aid of that defence are the physical characteristics of the accused at the time - his eye behaviour and related sensations - and a history of stressors commencing shortly after his birth, including bed-wetting, night terrors, abuse by his father and running up to three weeks before the death of the deceased where his father attacked the accused by threatening him with a hammer. There was also an incident a year before where the accused had been asleep with the deceased and during his sleep he had attempted to strangle the deceased and was then awoken by others.

A secondary issue in the trial is whether there is capable of being left with the jury that the killing was done with lawful excuse, that is to say, under provocation. It is to that matter that this ruling is directed.

Plainly there is sufficient material to go to the jury on the subjective element of provocation. The question is whether there is sufficient to go to a jury on the objective criterion, that is, whether the words or acts were capable of provoking an ordinary person in the way defined by the law. That is whether in all the circumstances an ordinary person in the situation of the accused could have lost self control - not would, could - and caused an ordinary person to form the intent to kill or do really serious injury and to act on that intention so as to give effect to it. The ordinary person is a person with the ordinary powers of self-control. The gravity of the conduct, including words, said to amount to provocation is to be assessed by the relevant long-term characteristics of the accused, including in this case the characteristics which I have defined. For the criteria I have stated I rely primarily upon Masciantonio v. R [1995] HCA 67; (1995) 183 CLR 58 especially per Brennan J. (as he then was) and Deane, Dawson and Gaudron JJ. at 67-69 and also Stingel v. R [1990] HCA 61; (1990) 171 CLR 312 per curiam at 334.

The critical question is whether the words and demeanour of the deceased, as deposed to by the accused, are capable in law of satisfying that objective criterion sufficiently for the matter to go to the jury. Of course, I proceed in this ruling on the factual basis most favourable to the accused. Plainly, the matter must be approached not only in the way I have defined but also holistically, cumulatively and with a full and plenary acknowledgement of the emotionally charged situation in which the two persons found themselves.

There was, on the evidence of the accused, first, a confession of infidelity, second, a statement of future unfaithful conduct, and third, a taunt; but there was no more than that. Thus the question arises, applying the criteria I have defined and approaching the matter cumulatively, holistically and sympathetically - if I can use that word, meaning giving full weight to the emotionally charged situation that the parties found themselves in - whether it is open to a jury to conclude that an ordinary person in the circumstances could have formed the murderous intent and have acted upon it.

Nearly all the cases involve not only words but actions. In Green v. R (1997) 191 C.L.R. 334 there were physical advances of a homosexual kind. The deceased got into the accused's bed, made persistent advances and "groped" the accused (quoting from the accused's record of interview). In Stingel v. R the accused found the woman with whom he was infatuated giving oral sex to another man in a vehicle, as well as the accused being told by the man "Piss off, you cunt." In Masciantonio v. R although that case was primarily on the question of regaining self control, as well as the words "piss off" by the deceased to the accused, the deceased attempted to kick the accused and punched him and caused him to fall with injury to his elbow. In Moffa v. R [1977] HCA 14; (1977) 138 C.L.R. 601, as well as the taunts by the deceased to the accused and calling the accused a black bastard, boasting of promiscuous conduct with neighbours and other contemptuous words, the deceased grabbed at the accused (having just said "I'll scratch your eyes out"), threw photographs of herself naked and provocative at him, and threw a telephone at him. In R v. Thorpe [1998] VSCA 13; (1999) 1 V.R. 326 it was open on the evidence for the jury to conclude that as well as abusive words, the accused had been physically assaulted by the deceased with a weapon and that the accused was injured in that assault, the accused being an epileptic then on Dilantin. Presumably, because virtually all the cases involve a combination of physical conduct and of words, the Court of Appeal of Queensland in Buttigieg (1993) 69 A.Crim.R. 21 at 37 stated:

"It seems now to be accepted in the cases that the use of words alone , no matter how insulting or upsetting , is not regarded as creating a sufficient foundation for this defence to apply to a killing except perhaps in 'circumstances of most extreme and exceptional character'."

That citation was taken from the judgment of Barwick C.J. in Moffa at 605 who in turn relied upon a passage of Viscount Simon (in whose judgment Their Lordships concurred) in Holmes v The Director of Public Prosecutions (1946) A. C. 588 at 600 where he said:

"It is enough to say that the duty of the judge at the trial, in relevant cases, is to tell the jury that a confession of adultery without more is never sufficient to reduce an offence which would otherwise be murder to manslaughter, and that in no case could words alone, save in circumstances of a most extreme and exceptional character, so reduce the crime."

However, the door is not fully closed to words alone being sufficient in appropriate circumstances to constitute provocation. Brabantio surely was wrong when he said to Othello:

"But words are words; I never yet did hear That the bruis'd heart was pierced through the ear." (Othello I, 3, 218-219).

Words can wound. So much was acknowledged in R v. Tuncay (1998) 2 V.R. 19 where in a characteristically erudite judgment (if I may say so) Ormiston J.A. at 20 traced the conception of "mere words" back to the memorandum of the Judges on 28 April 1666 in R v. Morly where the Judges resolved:

"No words, be they what they will, are in law such a provocation, as if a man kill another for words only will diminish the offence of killing a man from murder to manslaughter".

In Tuncay the relevant words involved the statement by the deceased of an intention to leave after 15 years of marriage and take with her their two children (aged 13 and 6 years) where the accused husband begged her to stay saying he could not live without her and the children and that he would commit suicide, to which proposition the deceased effectively agreed, saying 'gebher' (Turkish for 'I wish you were dead'). But even in that case the court held that provocation was not satisfied as to its objective criterion.

The only modern case I have been able to find which would support the present submission of senior counsel for the accused that provocation be left to the jury in this case is R v. Romano (1984) 36 S.A.S.R. 283. That was a case which the Queensland Court of Appeal characterised as "out of line with the general stream" (Buttigieg at 38); and the authority is perhaps of less utility because the accused was a paranoid schizophrenic. In R v. Palmer (1913) 2 K.B. 29 at 31 the Court (referring to R v. Rothwell and R v. Jones) held that a sudden confession by a wife to a husband of adultery reduces murder to manslaughter but that the same confession by a woman engaged to a man to be married does not. The authorities relied upon date from 1871 and 1908. Doubtless that (the law so excusing a husband killing a wife) is not the law in Australia in 1999 (nor was it in 1997).

The law allows for human frailty; thus the law of provocation. But its central tenet is respect for and protection of human life. To allow provocation to be left with the jury in the critically limited circumstances of this case would be to significantly extend the law of provocation. There is no authority, principle or fact which would warrant such a course. Such a course would significantly alter the proper balance between human imperfection and the protection of human life.

We live in a civilised society ruled by law. Provocation is not open to be left to the jury in the limited circumstances of this case.

DPP v Leonboyer [1999] VSC 450

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Judgment (30 paragraphs)

DPP v Leonboyer [1999] VSC 450 (20 October 1999)

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