Green v The Queen

Green v The Queen - [1997] HCA 50 - HCA 1997 case summary — Zoe

[26]

If the case is one for special leave then, in considering whether the appeal should be allowed, we must approach the matter as if we were a court of criminal appeal. It then becomes of little importance that on the facts the verdict may seem to have been right, if the jury were not properly directed on a material issue and this misdirection might have affected their decision. Parker was a case in which provocation was wrongly withdrawn from the jury's consideration. However the observation of Dixon CJ as to an appeal court's assessment of the sufficiency of the evidence to raise provocation indicates the approach to be taken when an appellate court must determine whether the jury could have resolved an element of provocation in favour of an accused. Dixon CJ said [13] : But on the question of provocation there has been no decision of the jury and the question is whether they ought to have been allowed to decide it. Perhaps it may be said that the question is to be considered just as if the jury had decided it in favour of the prisoner and, by some freak of procedure, the question arose whether that decision could be sustained. The point is that the issue before the Court of Criminal Appeal was whether by any possibility the jury might not unreasonably discover in the material before them enough to enable them to find a case of provocation. The selection and evaluation of the facts and factors upon which that conclusion would be based would be for the jury and it would not matter what qualifying or opposing considerations the Court might see: they would not matter because the question was, ex hypothesi, one for the jury and not for the Court. If a reasonable jury, properly directed, could have had a reasonable doubt as to whether the appellant was provoked to such a degree that an ordinary person experiencing provocation to that degree could have formed an intention to kill or to inflict grievous bodily harm to the deceased, this appeal must be allowed. In determining that question, regard must be had to all the relevant evidence including evidence of the sexual abuse factor. If the view formed by the Court of Criminal Appeal was correct, no reasonable jury properly directed could have entertained a reasonable doubt on that question and the trial judge was in error in allowing the issue of provocation to go to the jury. 1. (1936) 55 CLR 499. 2. (1963) 111 CLR 610 at 647. 3. Parker (1963) 111 CLR 610 at 616.

[304]

Broadly speaking there were three large grazes on the left side of the head in the area of the temple which appeared to be 12 mm apart. In addition there was an area of grazing and bruising over the left temple and an area of grazing immediately behind the left ear. There was an area of bruising and grazing of the left cheek and there was a triangular graze on the left cheek which measured 15 by 7 mm There were black eyes and under the eyelid, on the eyelid were a number of very small grazes, measuring only 3 mm in length There was a superficial cut in the skin of the bridge of the nose which I determined had not been caused by a sharp object like a knife or scissors but was, in fact splitting of the skin as a result of a blunt object. The entire nose, in fact was bruised and there was a large area of bruising on the right side of the face Both lips were very swollen as a result of bruising and finally there was an area of bruising and grazing on the back of the head on the left hand side. Now, when I performed further dissection of the head in addition I found that there was fracturing to the bones of the skull involving an area called anterior cranial fossa. Now that area is that part of the skull between the eyes and the brain and it is a layer of skull bone that separates the brain itself from the face. I considered that this fracture was in fact a very severe form of that fracture in that the fracturing had extended right down in to the facial bones as well In addition to those injuries to the head I noted that there was a fracture of the hyoid bone which is a small bone in the Adam's apple and there was a small amount of bruising around this bone I noticed fractures of the second and third ribs on the left and the second rib on the right in front so these were not related to the stab wounds and I noted that in fact there was a large amount of blood loss in that all the organs of the body were very pale relevant to what would usually be expected. On thorough examination of the brain I noted that there was blood on the surface of the brain as well as small areas of bruising within the brain itself but I found no other abnormalities. These findings led Dr Du Flou, to conclude, when taken with evidence of blood spray patterns and other physical indications at the scene of the crime [106] : [W]hat I believe is that the head was brought into contact forcibly with that part of the wall and that the head which at that stage had blood on it on coming into contact with the wall caused blood to spray outwards I would strongly favour that in fact the face was brought into contact with the wall. In cross-examination, Dr Du Flou agreed that the injuries to the back of the deceased's head were consistent with the head being banged violently against a wall. Those to the front of the head fitted readily with punching. 1. R v Green (unreported; Court of Criminal Appeal of NSW; 8 November 1995) at 23, per Priestley JA. 2. R v Green (unreported; Court of Criminal Appeal of NSW; 8 November 1995) at 25, per Priestley JA; cf Howe, More Folk Provoke Their Own Demise, Sydney Law Review, vol 19 (1997) 336, at p 355 .

[324]

It seems to me that this court should accept that the basis for the jury's decision was that they were satisfied beyond reasonable doubt that the sexual advances of Mr Gillies up to the point where the appellant lost his self-control were not such as could have induced an ordinary person in the position of the appellant to have so far lost self-control as to have formed an intent to kill or inflict grievous bodily harm upon Mr Gillies It seems to me that on the evidence the jury had before them and within the range of findings open to them on that evidence they could hardly have come to any different conclusion about par (b). This is not to say that the behaviour of Mr Gillies up to the point where the appellant lost his self-control was not offensive and provocative. It is easy to see that many an ordinary person in the position in which the appellant was when Mr Gillies was making his amorous physical advances would have reacted indignantly, with a physical throwing off of the deceased, and perhaps with blows. I do not think however that the ordinary person could have been induced by the deceased's conduct so far to lose self-control as to have formed an intent to kill or inflict grievous bodily harm upon Mr Gillies. Similarly, Priestley JA concluded that the misdirection on the "theoretical difference between the two positions" [114] involved in the focus of the appellant's intention to kill or to inflict grievous bodily harm had not occasioned a miscarriage of justice [115] : I find it very difficult to see how any attempt on counsel's part to draw this distinction, which would keep reminding the jury of the savagery of the beating which the appellant inflicted on Mr Gillies, would be of any advantage to the appellant. I can see the theoretical difference between the two positions. I can see, in theory, how it might be possible for a situation to arise in the course of a trial where counsel could make good use of the distinction in his client's interest, but I cannot think of a concrete possibility in the circumstances of the present case. 1. R v Green (unreported; Court of Criminal Appeal of NSW; 8 November 1995) at 25-26. 2. R v Green (unreported; Court of Criminal Appeal of NSW; 8 November 1995) at 28. 3. R v Green (unreported; Court of Criminal Appeal of NSW; 8 November 1995) at 28.

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Cases Cited (22)