Court of Appeal (WA)|2003-09-09|Before: Steytler J, McLure J, Pullin J

Hart v The Queen [2003] WASCA 213 (9 September 2003)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : HART -v- THE QUEEN [2003] WASCA 213

Criminal law and procedure - Appeal against conviction - Whether trial Judge erred in failing to leave issue of provocation to jury - Whether hearsay evidence wrongly left to jury - Relationship evidence - Whether trial Judge erred by failing to leave the question of accident to jury - Whether defence counsel failed to act on vital evidence

Criminal law - Murder - Provocation - Definition of provocation - Whether action of the deceased amounted to a wrongful act or insult - Whether act or insult has to emanate from victim - Concept of ordinary person - Whether proportionality is required between the act and the provocation leading to loss of selfcontrol - Whether act committed before there was time for passion to cool - Who bears the onus of proof - Sexual misconduct as provocation - When should provocation be left to jury

Criminal law and procedure - Appeal against sentence - Whether sentence manifestly excessive given applicant's age, antecedents and circumstances of commission of crime - What is "worst category" of offence

Criminal Code (WA), s 23, s 245, s 281, s 283, s 570D(2)

Application for leave to appeal against sentence granted

Gavin v The Queen (1992) 6 WAR 195

Jacovic v The Queen [2002] WASCA 149

1 STEYTLER J: On 13 June 2002 the appellant was convicted of murdering his estranged wife. On 13 August 2002 he was sentenced to a period of imprisonment for life with a minimum term of 14 years. He has appealed against his conviction and he seeks leave to appeal against the sentence imposed upon him.

2 The appellant and his wife, Julie Samantha Hart, were married on about 22 March 1997. They had three children. Two are boys, Kohen, born on 6 February 1995, and Shannon, born on 15 March 1996. The third child is a girl, born on 27 July 2000.

3 According to the appellant, he and his wife separated in about early March 2001. She, and the three children, moved in with her parents. Some time later, on 25 June 2001, the appellant went to see his wife at her parents' home. An argument developed and the appellant's father-in-law, Mr John Cole, intervened and asked the appellant to leave the house. An altercation followed, resulting in an exchange of blows between the two. The appellant's wife left the room and he followed her. He then physically assaulted her. Mr Cole intervened once again and was able to get the appellant to "settle down".

4 The appellant said that he had, thereafter, a number of telephone conversations with his wife. He said that he "hoped to get back with her". However, after 25 June 2001 he had difficulty in getting her to agree to arrangements for him to see his children.

5 As the day of his daughter's first birthday approached, the appellant tried to make arrangements with his wife for him to see his daughter and the two boys. His wife said that this would be too difficult because her car was being repaired, but the appellant did not believe her.

6 On Friday, 27 July 2001, the appellant bought a second-hand car. That evening he made a number of attempts to contact his wife in order to try to make arrangements to see his daughter. Having been unsuccessful in contacting her, he said that he decided to visit his cousin in Huntingdale. He drove there in his newly acquired car, notwithstanding that, as he later said, he had difficulty in driving because he had a sore left hand. He said that, on arrival in Huntingdale, he discovered that his cousin was not home. He said that, while he was parked outside his cousin's home, he checked through the car and found two knives in the glove box. One was a bread knife and the other was a large kitchen knife. He decided to return to his sister's house, where he was then staying.

7 The appellant said that, while returning home, he saw his wife's car parked outside the home of her brother and sister-in-law, Michael and Tracey Cole, at 3 Mistletoe Drive in Huntingdale. He said that he was annoyed to see her car there after she had told him it was being repaired. He pulled into Redfox Drive, a street running off Mistletoe Drive. He got out of his car, climbed over the nearby fence of an adjoining property and moved to a position where he could observe his brother-in-law's house from just outside its boundary fence. By standing on a wooden block he was able to see over the fence and into the games room of the house. He had taken with him the two knives. He said that he did so because he was hoping to confront his wife "about ... [his] daughter's birthday and ... about the car" and because he thought that there might have been a number of men in the house and he "was in fear of ... [his] safety".

8 He saw two couples dancing in the games room. One of the couples comprised the appellant's wife and a friend of his, Johnathon Cox. He jumped over the fence. When he got close to the games room, he could see that only his wife and Cox were still dancing. He said that he saw them kissing and that this made him angry. He was asked to whom his anger was directed and he responded by saying that it was directed to Cox. He said that he rushed in, "swearing". He said that he had one of the knives in his right hand, held in such a way as to have the blade running up his arm outside his jacket. He said that he intended to punch Cox. However, Cox pushed the appellant's wife away in an attempt to get away from the appellant, with the result that she suddenly came towards him "in a backward motion". He said that, as she came back towards him, he grabbed her and threw or pushed her out of the way, with both hands. He said that he then attempted to punch Cox with his right hand. When he did so, he realised that the knife was no longer in that hand. Cox tried to grab him and the appellant pulled the other knife out, which was still in the back of his jeans. He took a "swing" at Mr Cox, which, he said, was more of a "punch" than a stabbing motion, notwithstanding that he had a knife in his hand. He said that he felt no contact. The two men struggled until the appellant pushed Cox away. The appellant then "decamped", as he put it, leaving his wife, who had been fatally wounded, lying on the floor. Cox had only a small cut to his head.

9 The medical evidence led at the trial established that the cause of Mrs Hart's death was a penetrating injury to her chest caused by the blade of the knife which the appellant had had in his hand. The knife wound track extended right through the chest cavity from the back to the front, ending in the left breast. The pathologist who conducted the post-mortem, Dr Clive Cooke, said, in the course of cross-examination, that the injury could have been caused either by a forceful thrust of the knife all the way into the body or by the knife being inserted to some extent and then fallen upon.

10 The Crown case, as advanced at the trial, was that the appellant and his wife had been separated for some six months (somewhat longer than the period described by the appellant) and that, over that time, a good deal of animosity had developed on the appellant's part, as evidenced by the appellant's behaviour on 25 June 2001. It led evidence, in that respect, from Mr John Cole who said that the appellant assaulted his daughter to an extent where he was sitting on her stomach and punching her face. He said that, while the appellant was doing this, the appellant had said that he was not afraid to go to gaol.

11 The Crown contended that the appellant became further incensed when he was unsuccessful in making arrangements to see his children and that, on the evening of 27 July 2001, he armed himself with the two knives with the intention of killing his wife. It also contended that he drove to her brother and sister-in-law's home, armed with the two knives, knowing that she would be there and that he had formed the intention of killing her, at the very latest, when he armed himself with the two knives and certainly by the time he had got over the fence when, on his own admission, he withdrew one of the knives from his belt. It contended that, when he struck his wife with the knife, he did so hard, intending to kill her.

12 The Crown led evidence, in this respect, from Johnathon Cox. He had arrived at the house with Mrs Hart in order to attend a party. There had been children in the lounge room and adults in the games room. Events had reached the point where only he and Mrs Hart had remained in the games room. They were dancing in the middle of the room. Mr Cox, who had known the appellant for about three years and who described himself as being a mate of the appellant's, denied that he and Mrs Hart had kissed each other. He said that she "did try it but I said no, because we - we'd said that we can't be together". He said that when he was dancing with her, he had been pushing her "back a bit".

13 Mr Cox said that the appellant suddenly entered the room and pushed his wife back into the corner and said, "You fucking bitch." He had his right hand on her back, just below her shoulder blade and his left hand on her chest. He said that the appellant gave his wife "a shove" and she fell to the ground and yelled "Johnny". He said that the appellant then "swung" at him and he saw something shiny in the appellant's hand. He said that he ducked and that the weapon in the appellant's hand nicked the side of his head. He said that he tried to push or grab the appellant, but that the appellant just pushed him and then ran away.

14 In support of its case on the issue of intention, the Crown led evidence from three witnesses in respect of what it contended were admissions made by the appellant. The first of these was Carmen Nauer, Tracey Cole's sister. She said that, some time after the stabbing, the telephone rang and a voice, which she recognised as that of the appellant, said, "It's Fred here. You think I'm a joke, eh?" She responded by saying, "I don't know. Are you?" The appellant again said, "You think I'm a joke, eh, Tracey?" (she said that the appellant must have assumed that she was her sister). She then told the appellant that his wife was dead and the conversation was terminated shortly after that when a nearby police officer took the phone.

15 The second admission was said to have been made in the course of a telephone conversation between John Cole and the appellant, early in the morning of 28 July 2001. Mr Cole's home telephone rang and, when he asked who was calling, a voice which he recognised as that of the appellant said, "It's Fred." He said that the appellant said, "Do you know what I've done?" Mr Cole responded by saying that he did know what the appellant had done and asked the appellant if he knew what he had done. He said that the appellant responded by saying, "Yes, I killed her." Mr Cole then abused the appellant before asking him why he had done it. He said that the appellant responded by saying that he had done it because Mr Cole and his family would not let him see his children.

16 The third admission is said to have been made to Paul Kerr, a first-class constable attached to the Gosnells police station. He was present when Mr Cole spoke to the appellant at about 1 am on Saturday, 28 July. He took the telephone from Mr Cole and identified himself. He said that the appellant said, "I want to tell you something. It is my daughter's birthday today and they have manipulated me."

17 The appellant's defence, based upon his evidence, to which I have earlier referred, was that he had never intended to harm his wife and that her stabbing had been a consequence of an unintended reflex action on his part in an attempt to get her out of the way, not adverting, at all, to the fact that he had a knife in his hand at the time. He admitted that he had been angry (Cox had said that he could see the anger in the appellant's face) and that his anger arose from "[t]he fact that a friend of ... [his] was kissing ... [his] wife". However, he said that his anger was directed at Cox and that it was Cox that he had sworn at.

18 He denied making any admission to Carmen Nauer or to John Cole. He said that when he rang Tracey Cole's house, a female had said to him that he had stabbed his wife and that he had denied it. He said that a male then took the phone and he hung up. He denied saying anything to Mr Cole about having killed his wife. As to the conversation with Constable Kerr, the appellant said that he did not remember using the word "manipulating", but that he did not dispute it.

19 That brings me to the appellant's grounds of appeal against his conviction. There are six of them. They read as follows:

"1. The learned trial Judge erred in failing to leave the issue of provocation to the jury.

2. (A) The learned trial Judge erred in failing to exclude

inadmissible hearsay evidence:

Particulars

(a) Telephone conversation between the Applicant and Carmen Nauer;

(b) Telephone conversation between the Applicant and Mr Cole;

(c) Telephone conversation between the Applicant and Police Officer Kerr.

(B) The learned trial Judge erred in directing the jury that they could accept the above hearsay evidence as an admission of guilt.

3. The learned trial Judge erred in law by failing to warn the jury of the dangers of acting on the uncorroborated evidence of the witnesses' [sic] conversations referred to in ground 2A above.

4. The learned trial Judge erred in law in admitting evidence of alleged assaults by the Applicant on the deceased and the deceased's father that occurred some weeks before the date of death of the deceased when such evidence was highly prejudicial and of little or no probative value.

5. The learned trial Judge erred in law by failing to leave to the jury the question of accident.

6. Defence counsels [sic] incompetence and failure to act on vital evidence was negligent to the accused in that it had a detrimental effect to the outcome of the verdict."

21 As to ground 1, the appellant, who represented himself at the hearing of the appeal, contended that, notwithstanding that no defence of provocation had been raised at the trial, the trial Judge erred in failing to leave that issue to the jury. Shortly prior to the commencement, by the trial Judge, of his summing up, the prosecutor raised with his Honour the question whether or not he proposed to leave the issue of provocation with the jury. He said that, in the Crown's view, the issue did not arise. The trial Judge responded by saying that he had considered whether or not he should give a direction on provocation, but had decided not to do so. His Honour asked the counsel for the appellant whether or not he wished to say anything and he responded by saying that he had nothing to raise.

22 The defence of provocation, in the case of an unlawful killing, is provided by s 281 of the Criminal Code. That section reads as follows:

"When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute wilful murder or murder, does the act which causes death in the heat of passion caused by sudden provocation, and before there is time for his passion to cool, he is guilty of manslaughter only."

23 The term "provocation" is defined in s 245 of the Code. So far as is relevant for present purposes, that section provides as follows:

"The term 'provocation' used with reference to an offence of which an assault is an element, means and includes, except as hereinafter stated, any wrongful act or insult of such a nature as to be likely, when done to an ordinary person, or in the presence of an ordinary person to another person who is under his immediate care, or to whom he stands in a conjugal, parental, filial, or fraternal relation, or in the relation of master or servant, to deprive him of the power of self control, and to induce him to assault the person by whom the act or insult is done or offered."

24 There has been some controversy, in Western Australia, as regards the question whether "provocation", as it is used in s 281, is to be interpreted as defined in s 245.

25 In R v Scott (1909) 11 WALR 52 the Court, dealing with the then provisions of s 279 (the equivalent of s 281) and s 243 (the equivalent of s 245), accepted that s 243 did provide the definition of provocation for the purposes of s 279.

26 Then, in Dunstan v The Queen (1931) 33 WALR 118, and again in Mehemet Ali v The Queen (1957) 59 WALR 28 (see, in particular, pages 36 and 40), the Court reached a similar conclusion in respect of s 281 and s 245. However, in Queensland, an identical section to s 281 (s 304 of the Criminal Code (Qld)) was held to adopt the common law doctrine of provocation, notwithstanding the existence of a provision (s 268 of the Criminal Code (Qld)) in terms identical to s 245: R v Johnson [1964] Qd R 1 and R v Callope (1965) Qd R 456. In Sreckovic v The Queen [1973] WAR 85, Jackson CJ, with whom Virtue SPJ was in agreement, accepted that the definition in s 245 supplied the meaning of "provocation" for the purposes of s 281, notwithstanding that a different view had been taken in Queensland, although the Court was not there invited to reconsider its earlier decisions.

27 In 1975, the High Court, in Kaporonovski v The Queen [1973] HCA 35; (1975) 133 CLR 209, held, by a majority (McTiernan, Menzies and, seemingly, Walsh JJ), that the definition of provocation contained in s 268 of the Queensland Code applied only to offences in the definition of which an assault was an element and was not available merely because, on the evidence, the offence charged in a particular case was shown to have involved the commission of an assault. That decision necessarily put into question the correctness of what had been decided, on this issue, in each of Scott, Dunstan, Mehemet Ali and Sreckovic, although the minority Judges on that issue, Gibbs and Stephen JJ, expressed opinions similar to those which had been arrived at in the Western Australian cases.

28 The issue came again before the Western Australian Court of Criminal Appeal in Censori v The Queen [1983] WAR 89. However, neither counsel in that case invited the Court to overrule its prior decisions. Burt CJ, after mentioning this (at 90), said that nothing in the case turned upon the issue in any event. He consequently found it unnecessary to address it. Wickham J (at 94) recognised that, in the light of the dicta of the majority in Kaporonovski, it was open to question whether the earlier decisions of the Western Australian Court of Criminal Appeal were correct. He went on to say (ibid):

"Nevertheless, in the case mentioned Gibbs J (as he then was) together with Stephen J expressed the same view as the Court of Criminal Appeal, and the authorities referred to have not been expressly disapproved by the High Court or by implication disapproved in reasons necessary to a decision. In the absence in this case of any invitation by counsel to review these authorities I am of the view that this Court should continue to apply the 'received law' in this State unless and until it is pronounced to be otherwise by binding authority."

29 The third Judge, Kennedy J, said (at 101) that, while the High Court had not been concerned with the application of the Code definition to the provision dealing with killing on provocation, the reasoning of the majority inevitably led to the conclusion that, in the application of s 281, the Code definition is not available and that the common law must be resorted to. However, in the view which his Honour formed in relation to the interpretation of s 245, it was unnecessary for him to decide whether, in the light of Kaporonovski, the Court should overrule its earlier decisions in Scott, Dunstan, Mehemet Ali and Sreckovic.

30 In 1986 the issue arose, again, in the High Court, in Van Den Hoek v The Queen [1986] HCA 76; (1986) 161 CLR 158, on an appeal from the Western Australian Court of Criminal Appeal. There, Gibbs CJ and Wilson, Brennan and Deane JJ (at 168) mentioned the divergence of views in this respect as between Western Australia and Queensland, saying that the view adopted in Queensland had been endorsed in Kaporonovski by McTiernan ACJ and Menzies J (at 218 - 219) and possibly by Walsh J (at 224 - 225). However, their Honours found it unnecessary, in that case, to decide whether or not the common law or s 245 should be looked to for elucidation of the defence of provocation as, given the question which had arisen (whether the defence embraced a sudden and temporary loss of self-control due to an emotion such as fear or panic as well as anger or resentment), the result was the same either way.

31 Thereafter, the issue arose again in the Western Australian Court of Criminal Appeal in Roche v The Queen [1988] WAR 278. In that case the appellant and his wife had recently separated. The appellant went to the matrimonial home where he found her in the bedroom with another man. He stabbed and killed the man and then attacked his wife. He was convicted of the wilful murder of the man and of the attempted murder of his wife. Burt CJ (with whom Olney J agreed) said, as regards the offence of attempted murder (under s 283 of the Criminal Code), that s 281 could have no application to that offence as it deals only with cases of unlawful killing and (applying Kaporonovski) that s 246 of the Code (providing for the defence of provocation in a case of assault), read with s 245, could not apply because the offence created by s 283 was not an offence of which an assault was an element. As regards the conviction for wilful murder, the Crown had conceded that there was evidence in the case capable of establishing the objective element within the "idea" of provocation and his Honour considered (at 280) that this concession was rightly made whether the word "provocation" contained in s 281 of the Code was to be understood in the sense of the definition in s 245 of the Code or not. The third judge, Brinsden J, considered that the proposition that the meaning of "provocation" in s 281 is to be taken from s 245 of the Code was abundantly supported by Censori, Mehemet Ali and Sreckovic. His Honour went on to say (at 285) that, in Van Den Hoek, Mason J had said nothing which lessened the authority of those decisions, although noting that the same view had not been taken in Queensland and mentioning that, in Kaporonovski, the Queensland view appears to have been supported, although the actual decision in that case was not on s 281. However, his Honour went on to say (ibid) that:

"Nevertheless Kaporonovski ... is an authority in this Court which we must follow on s 245 limiting it only to offences in the definition of which an assault is an element, it being not available merely because, on the evidence, the offence charged in a particular case is shown to have involved the commission of an assault. His Honour's ruling, therefore, that provocation was not a defence to either of the charges involving the wife was correct, following Kaporonovski ... and the appeal in respect of attempted killing must fail."

32 Recently, in R v Pangilinan [2001] QCA 81; [2001] 1 Qd R 56, the Court of Criminal Appeal in Queensland was faced with a submission, based upon Roche, to the effect that a provocative act or insult must emanate from the victim. However, because that conclusion was thought to be based upon the proposition that the definition of "provocation" in s 245 governed the meaning of that word in s 281, and because authority in Queensland had taken a different path, the Court considered itself to be free to adopt a different approach (page 64).

33 This, rather unsatisfactory state of the law remains the position today. For myself, I must say that I find it difficult to see how the definition in s 245 could be available in the application of s 281 if, as was decided by the majority in Kaporonovski (albeit that case did not deal with the equivalent section to s 281), the defence of provocation under provisions equivalent to s 245 and s 246 applies only to offences in the definition of which an assault is an element, and is not available merely because, on the evidence, the offence charged in a particular case is shown to have involved the commission of an assault. Like Kennedy J in Censori at 101, it seems to me that the reasoning of the majority inevitably leads to the conclusion that it is not so available. However, it is unnecessary to decide that question in this case (it was not argued before us) as the outcome of this case is, for reasons which will become apparent, no different however the question may be answered.

34 Indeed, the position under s 245 is, in many respects, not different to that at common law. In Stingel v The Queen [1990] HCA 61; (1990) 171 CLR 312 at 320 the court (Mason CJ and Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ) said that they shared a perception that, "in this particular field of criminal law, the common law, the Codes and other statutory provisions, and judicial decisions about them, have tended to interact and to reflect a degree of unity of underlying notions". (See also R v Buttigieg (1993) 69 A Crim R 21 at 26 and Masciantonio v The Queen [1995] HCA 67; (1995) 183 CLR 58 at 66.)

35 In both cases it is, of course, necessary to apply both a subjective and an objective test, asking whether the provocation in fact caused the accused to lose his power of self-control and whether a reasonable person so provoked could have lost his self-control and acted as the accused did: see Moffa v The Queen [1977] HCA 14; (1977) 138 CLR 601 at 612 - 613, per Gibbs J, and Roche, at 280, per Burt CJ. The position in that regard is conveniently summarised in Masciantonio, above, at 66, by Brennan, Deane, Dawson and Gaudron JJ as follows:

"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 while deprived of self-control before he has had the opportunity to regain his composure.

It follows that the accused must form an intention to kill or to do grievous bodily harm (putting recklessness to one side) before any question of provocation arises. Provocation only operates to reduce what would otherwise be murder to manslaughter. Since the provocation must be such as could cause an ordinary person to lose self-control and act in a manner which would encompass the accused's actions, it must be such as could cause an ordinary person to form an intention to inflict grievous bodily harm or even death ...".

36 However, it remains necessary to consider a number of specific aspects of the defence of provocation. I will deal with these below.

37 First, I propose to look at the question of what is comprehended by the phrase "wrongful act or insult" in s 245 upon the assumption that that section supplies the meaning of "provocation" for the purposes of s 281.

38 That raises, first, the question whether the word "wrongful" qualifies both "act" and "insult". In R v Scott Burnside J, at 66 - 67, did not think that it was possible to disassociate the qualifying adjective "wrongful" from the word "insult". His Honour said that he could not see why an act, in order to amount to provocation, must be wrongful, but an insult may be of any character at all. However, Parker CJ dealt with the case upon the assumption that the relevant question was whether or not there had been an insult (page 55). The third Judge, McMillan J, appeared to distinguish between a "wrongful act done" and "an insult offered" (page 60). His Honour said (at 62) that it would be difficult to speak of an insult, which is calculated when offered to an ordinary person to deprive that person of the power of self-control, as being a rightful insult. A similar approach appears to have been taken by Jackson CJ (with whom Virtue SPJ was in agreement) in Sreckovic, above, at 91, where his Honour said that "an insult as well as a wrongful act may be considered as provocation". However, in R v Stevens & Doglione [1989] 2 Qd R 386 Demack J (with whom Kelly SPJ and Kneipp J were in agreement) considered that, in the equivalent Queensland provision, the word "wrongful" qualified both "act" and "insult", preferring the opinion expressed by Burnside J in that respect.

39 The question came before the High Court in Stingel. There, the Court, after mentioning (at 322) that it had consistently been assumed in Tasmanian cases that the word "wrongful" did not qualify "insult" in the equivalent Tasmanian Legislation (as to which see Bedelph v The Queen [1980] Tas R 23 at 40 and Hutton v The Queen [1986] TASSC 11; [1986] Tas R 24 at 40 - 41), went on to refer to the approach which had been taken by Burnside J in Scott. Their Honours said that they found his Honour's comments not to have been persuasive saying that, in the phrase "wrongful act", the adjective "wrongful" is necessary to import the element of offensiveness, whereas the word "insult" involves the implication of offensiveness without a need for any accompanying adjective. The Court also disapproved of the reasoning of the Queensland Court of Criminal Appeal in Stevens, at least as regards the construction of the phrase where it appeared in s 160 of the Tasmanian Criminal Code. They went on to say (at 323 - 324):

"As the word 'any' makes plain, the reference to 'wrongful act or insult' was not intended to be confined by requirements of gravity or proportion. That confinement is to be found in the requirement of the following words of the sub-section to the effect that the wrongful act or insult must be of such a nature as to be sufficient to deprive an ordinary person of the power of self-control.

The Court is not concerned in the present case with the construction of the phrase 'any wrongful act or insult' as used in the context of the differently worded provisions of the Queensland and Western Australian Codes. That being so, it is inappropriate to express a concluded view about the relationship between 'wrongful' and 'insult' in the provocation provisions of those Codes. It suffices, for present purposes, to say that the word 'wrongful' should not be read as qualifying the word 'insult' in s 160(2) of the [Tasmanian] Code. Neither syntax nor context requires that 'wrongful' be so read. Moreover, the requirement that an 'insult' be 'wrongful' before it can constitute provocation would introduce unjustifiable difficulty in this area of the law. As McMillan J. pointed out in Scott ..., 'it would be difficult to speak of an insult, which is calculated when offered to an ordinary person to deprive him of the power of self-control, as being a rightful insult'. If the word were construed as having the effect of introducing a critical distinction between the 'wrongful' and the 'rightful' insult, it would, presumably, be more likely to include the insult that was obviously false or inappropriate than that which was truthful or apposite. Yet the truthful or apposite insult is likely to be more provocative than that which is obviously false or inapposite."

40 While their Honours declined to express a concluded view, in this respect, as regards the Western Australian provisions, it seems to me that these comments are apposite to the provisions of s 245 and that they should be read accordingly.

41 There has been some debate as regards the question whether the wrongful act or insult must emanate from the victim, rather than from some third person. The issue arose in Victoria, in R v Kenney [1983] VicRp 106; [1983] 2 VR 470. There, Brooking J, after referring to authority for the view that the provocative act must be that of the victim, went on to say (at 470 - 471):

"In my opinion, by analogy with the principles governing criminal responsibility for the acts of another, a provocative act is done by a victim if he is acting in concert with or aiding and abetting the person by whom it is done. This view is put forward by Snelling, Manslaughter upon Provocation (1958), 31 ALJ 790. The question then arises of the effect of a mistake of fact. Snelling, in the article referred to, rejects the suggestion that a mistaken belief in provocation is equivalent to actual provocation. That view is taken by Glanville Williams, Provocation and the Reasonable Man, [1954] Crim LR 740, at pp 752-4, according to whom the mistake need not be reasonable. Howard, Criminal Law, 4th ed, p 81 suggests that it must. Perkins on Criminal Law, 1957, p 55 expresses the opinion that intentionally venting one's wrath on an innocent bystander is murder but that it is manslaughter if one aims at the provoker and hits another person by accident or if by a reasonable mistake of fact one thinks that the provocation was perpetrated by the deceased."

42 His Honour also said (at 472) that if a third party was killed by accident, and the accused had intended to inflict injury on the actual provoker, then the accused could have the benefit of provocation (see also R v Gross (1913) 23 Cox CC 455; and R v Porritt [1961] 1 WLR 1372). This, his Honour said, was explicable on the doctrine of transferred malice and could consequently be viewed as a special case.

43 In Hutton, at 319, Green CJ expressed the opinion that the Tasmanian Criminal Code did not provide that provocation might only be given by the deceased and that it was consequently not open to the Court to read into the words used in s 160 of that Code such a substantial limitation upon its operation. His Honour went on to say (also at 319) that the section was concerned with the nature of the provocation and its effect upon the accused and the ordinary person and not with the source of the provocation. Cox J, in that case, considered it logical that if a loss of control was due to provocation, the accused should not be deprived of any mitigation of his crime because the provocation was offered by another (page 325). The third Judge, Underwood J (who was in dissent), likewise considered that a construction of the provisions of s 160 which confined provocation only to that offered by the victim was contrary to the ordinary meaning of the words used.

44 However, in Roche, Burt CJ (with whom, as I have said, Olney J was in agreement) was not prepared to accept that murder could be reduced to manslaughter by reason of provocation when the provocation came from one person, but, as a result of a loss of self-control and in the heat of passion, another was killed by the accused person in circumstances in which that other was "in no way concerned with the act or insult which caused him to do what he did" (page 280). Brinsden J expressed a similar opinion, saying that this necessarily followed once the Court accepted that the meaning of "provocation" in s 281 was to be found in s 245. That was so, his Honour said (at 285), because the latter section defined "provocation" as being any wrongful act or insult which deprived the accused "of the power of self-control ... [so as] to induce him to assault the person by whom the act or insult is done or offered".

45 In Pangilinan, above, the Court of Criminal Appeal in Queensland declined to follow Roche in this respect, in circumstances in which, as I have earlier said, it considered that the common law definition of provocation applied in s 304 of the Queensland Code (pages 64 - 65).

46 Once again, the law in this respect appears to be left, in Western Australia, in a somewhat unsatisfactory state. If Roche is still good law in this respect (and that case was not challenged, or even discussed, in this appeal), then it would seem that the provocation must have emanated from the victim himself or herself. However, if the question of the applicability of s 245 to s 281 should be reconsidered, and a different conclusion arrived at, the approach adopted in Tasmania and in Queensland would seem to me to be preferable. However, for reasons which will later appear, it is unnecessary for me to consider that question any further in this case.

47 Next, there is a good deal of authority as regards the concept of the "ordinary person" for the purposes of the defence of provocation, that concept being central both to the Code provisions and to the common law (see, for example, Sreckovic, above, at 91).

48 In Moffa, at 606, Barwick CJ distinguished between the notion of the "ordinary man" and that of the "reasonable man" for the purposes of the objective test in relation to provocation, preferring the former. His Honour said, in that respect, that the fact that a person is emotionally disturbed by a particular event does not make that person other than an ordinary person. Gibbs J, too, preferred the concept of an "ordinary person" to that of a "reasonable person", saying that the person concerned is one who has reasonable powers of self-control, rather than one who acts reasonably (page 613).

49 The concept of an ordinary person was extensively discussed by the High Court in Stingel at 324 - 332. A number of propositions emerge from that discussion. While the Court was there concerned with s 160 of the Criminal Code (Tas), these points are, in my opinion, of application, also, in Western Australia. They might be set forth as follows:

(a) It is only if the objective threshold test is satisfied (that of whether or not the wrongful act or insult was sufficient to deprive an ordinary person of the power of self-control) that it becomes necessary to consider the subjective question whether the accused was, in fact, deprived of his or her self-control (page 324).

(b) The objective standard exists so as to ensure that "there is no fluctuating standard of self-control against which accuseds [sic] are measured", with the governing principles being "those of equality and individual responsibility, so that all persons are held to the same standard notwithstanding their distinctive personality traits and varying capacities to achieve the standard" (Reg v Hill [1986] 1 SCR 313 at 343, per Wilson J) (page 324).

(c) However, the objective test is not to be applied in a vacuum or without regard to such of the accused's personal characteristics, attributes or history as served to identify the implications and to affect the gravity of the particular wrongful act or insult (page 324).

(d) In order to answer the central question posed by the objective test, that of whether the wrongful act or insult be of such a nature as to be sufficient to deprive an ordinary person of the power of self-control, the content and relevant implications of the wrongful act or insult must be identified and an objective assessment of its gravity in the circumstances of the particular case made (pages 325 and 326). See also Moffa, above, at 616, per Gibbs J, and 606, per Barwick CJ.

(e) The content and extent of the provocative conduct must be assessed from the viewpoint of the particular accused and, in that regard, none of the attributes or characteristics of that accused will necessarily be irrelevant to an assessment of the content and extent of the provocation. Age, sex, race, physical features, personal attributes, personal relationships, past history and even, in some circumstances, mental instability or weakness of an accused may be among the relevant attributes or characteristics (page 326).

(f) The function of "the ordinary person" for this purpose is that of providing an objective and uniform standard of the minimum powers of self-control which must be observed before the defence of provocation can reduce what would otherwise be murder to manslaughter (page 327).

(g) While personal characteristics or attributes of the particular accused may be taken into account for the purpose of assessing the content and extent of the provocation or, as their Honours put it at page 327, "for the purpose of understanding the implications and assessing the gravity of the wrongful act or insult", the ultimate question posed by the threshold objective test relates to the possible effect of the wrongful act or insult, so understood and assessed, upon the power of self-control of a truly hypothetical ordinary person, unaffected by the personal characteristics or attributes of the particular accused, age aside. In considering what is the extent of the power of self-control of that hypothetical ordinary person, the Court will be affected by contemporary conditions and attitudes (see also Moffa, above, at 616 - 617, per Gibbs J and Parker v The Queen [1963] HCA 14; (1963) 111 CLR 610 at 654, per Windeyer J).

(h) The "ordinary person" is not the "reasonable man" in the law of negligence as "it is all but impossible to envisage circumstances in which a wrongful act or insult would so provoke the circumspect and careful reasonable man of the law of negligence that, not acting in self-defence, he would kill his neighbour in circumstances which would, but for the provocation, be murder" (page 328).

(i) The assumption underlying the objective test is not that to do an act which would otherwise be murder may be an ordinary or reasonable reaction to a wrongful act or insult, but that a wrongful act or insult may be such as to be sufficient to provoke an ordinary person to lose his or her self-control to the extent that that person does the unreasonable and extraordinary (page 329).

(j) The principle of equality before the law requires that differences between different classes or groups be reflected only in the limits within which a particular level of self-control can be categorised as ordinary. The lowest level of self-control which falls within those limits or that range is required of all members of the community, subject to the qualification that, in at least some circumstances, the age of the accused should be attributed to the ordinary person (page 329). This exception could be justified, the Court said (at 330), "since the process of development from childhood to maturity is something which, being common to us all, is an aspect of ordinariness".

50 At page 331 of the report their Honours described the effect of the threshold objective test of s 160(2) of the Tasmanian Code, in summary form, as follows:

"It is to pose for the jury the question whether, in all the circumstances of the case, the wrongful act or insult, with its implications and gravity identified and assessed in the manner we have indicated, was of such a nature that it could or might cause an ordinary person (or, when appropriate, an ordinary person of the age of the accused), that is to say, a hypothetical or imaginary person with powers of self-control within the limits of what is ordinary (for a person of that age), to do what the accused did."

51 Their Honours remarked, in respect of this test, that the fact that the particular accused lacks the power of self-control of an ordinary person because of some attribute or characteristic which must be taken into account in identifying the content or gravity of the wrongful act or insult will not affect the reference point of the objective test, being the power of self-control of a hypothetical "ordinary person" (page 332).

52 More recently, in Masciantonio, at 66 - 67, Brennan, Deane, Dawson and Gaudron JJ put the test as follows:

"The test involving the hypothetical ordinary person is an objective test which lays down the minimum standard of self-control required by the law. Since it is an objective test, the characteristics of the ordinary person are merely those of a person with ordinary powers of self-control. They are not the characteristics of the accused, although when it is appropriate to do so because of the accused's immaturity, the ordinary person may be taken to be of the accused's age.

However, the gravity of the conduct said to constitute the provocation must be assessed by reference to relevant characteristics of the accused. Conduct which might not be insulting or hurtful to one person might be extremely so to another because of that person's age, sex, race, ethnicity, physical features, personal attributes, personal relationships or past history. The provocation must be put in context and it is only by having regard to the attributes or characteristics of the accused that this can be done. But having assessed the gravity of the provocation in this way, it is then necessary to ask the question 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."

53 In that case, McHugh J (who was in dissent), after referring to the curious dichotomy which exists as a consequence of the fact that the personal characteristics and attributes of the accused are relevant in determining the effect of the provocative conduct, but are not relevant in determining the issue of self-control, went on to say (at 73) that the ordinary person's standard would not become meaningless if it incorporated the general characteristics of an ordinary person of the same age, race, culture and background as the accused on the self-control issue. Otherwise, his Honour suggested, the law of provocation was likely to result in discrimination and injustice. His Honour said (at 74) that real equality before the law cannot exist when ethnic or cultural minorities are convicted or acquitted of murder according to a standard that reflects the values of the dominant class, but not those of the minorities. Consequently, his Honour concluded that relevant matters arising from the ethnic or cultural background of the accused can be taken into account in determining whether an ordinary person would have lost his or her self-control as the result of the deceased's provocation. His Honour adopted a similar approach in Green v The Queen (1997) 191 CLR 334 at 368, saying that he would add to age and maturity considerations of ethnic or cultural background of the accused as being relevant to any inquiry into the objective standard by which the self-control of an accused is measured. However, this approach has not, as yet, found favour with other members of the Court and has been the subject of some academic criticism (see Morgan: Provocation Law and Facts: Dead Women Tell no Tales, Tales are Told about Them (1997) 21 MULR 236 at 267).

54 The test, as enunciated by the majority in Masciantonio, and by the Court in Stingel, seems to me to be applicable in Western Australia. I should add that it is clear (relevantly to the facts and circumstances of this case) that the ordinary person is not one of exceptional pugnacity or excitability or one of unusual or hypersensitive temperament. So much appears from the judgment of Kennedy J, in Censori at 104, where his Honour referred, in that respect, to Packett v The Queen [1937] HCA 53; (1937) 58 CLR 190 at 217 where Sir Owen Dixon spoke of "the necessity of applying an overriding or controlling standard for the mitigation allowed by law": see also R v Dutton (1979) 21 SASR 356 at 364, 375 and 377, Bedelph, above, at 25 and Croft v The Queen [1981] 1 NSWLR 126 at 162. To similar effect is the judgment of Coleridge J in Kirkham v The Queen [1839] EngR 273; (1837) 8 C & P 115 at 119; [1839] EngR 273; 173 ER 422 at 424 (referred to by Murphy J in Moffa at 625) as follows:

"Though the law condescends to human frailty, it will not indulge human ferocity. It considers man to be a rational being and requires that he should exercise a reasonable control over his passions."

55 There has been some controversy, in the cases, as regards the issue whether some proportionality is required as between the act causing death and the provocation which led to the loss of self-control.

56 In Lee Chun-Chuen v The Queen [1963] AC 220 the Privy Council expressed the opinion, at 231, that the retaliation must be "proportionate to the provocation". Their Lordships also there referred (at 232) to the case of Mancini v Director of Public Prosecutions [1942] AC 1 in which the House of Lords had proceeded on the basis that there was an act of provocation, the aiming of a blow with a fist, but held that it was right not to have left that issue to the jury because the use of a dagger in reply was disproportionate. In Callope, above at 465, the Court of Criminal Appeal in Queensland expressed the opinion that the rules expressed in Lee Chun-Chuen, including that in respect of proportionality, formed part of the law of Queensland. However, their Honours went on to say (ibid):

"We do not need to discuss the limits of the doctrine that the force used must not be wholly disproportionate to the provocation received, but we may say that in our opinion the rule does not mean what the text writers fear, that nothing less than a murderous attack could ever amount to provocation for a blow that was likely to kill. The relationship of the force used to the provocation is one of the matters to be considered by the judge in deciding whether there is any evidence of provocation fit to be left to the jury and to be weighed by the jury if the matter is left for their decision.

57 The notion of proportionality appears to have been applied in New South Wales in R v Guerin [1967] 1 NSWR 255: see the judgment of Asprey JA at 260. It was also applied, in that State, in R v Vassiliev (1967) 68 (SR) NSW 74. There, Sugerman JA said (at 84), applying what had been said in Mancini at 9, that it is well settled that "the mode of resentment must bear a reasonable relationship to the provocation if the offence is to be reduced to manslaughter". His Honour said that it was not important to consider whether this was a separate and independent rule of law or whether it was one of the factors in the common law principle embodied in the New South Wales legislation (s 23(2) of the Crimes Act 1900 (NSW), discussed below). He went on to say (at 86):

"The question of proportion thus being, initially at least, a question for the court, which is charged with the duty of 'applying an overriding or controlling standard', it becomes necessary to consider whether in the present case there was sufficient material, on a view of the evidence most favourable to the appellant, for a reasonable jury to form the view that the act of provocation relied upon was reasonably calculated to deprive an ordinary person of the power of self-control 'to the degree and method and continuance of violence' which produced the death of the deceased."

58 Begg J, in the same case, expressed himself to be unable to find any evidence or circumstances which would "support a finding that the retaliation of the accused bears some reasonable proportion to the gross insult".

59 In Sreckovic, above, Jackson CJ (and Virtue SPJ), after considering what had been said in Lee Chun-Chuen on this issue, and also criticism by Professor Howard in his book on "Australian Criminal Law", 2nd ed, at p 87, to the effect that the better view was that proportionality was only a factor to be considered by the jury in deciding whether the actions of the accused were those of an ordinary man, said:

"Whatever may be the position at common law, it is not, in my view, an independent and necessary requirement of provocation under the Criminal Code of this state that the retaliation must be proportionate to the provocation, for the reason that no such requirement is expressed in s 245 or s 281."

60 Burt J, in that case, while readily understanding the significance which the idea of proportion might have in considering whether the Crown had proved that the act which caused the death was done in the heat of passion caused by sudden provocation and before there was time for passion to cool, found it "conceptually difficult to apply that idea so as to raise an additional fact issue which must be resolved before the law expressed by the section can operate to produce the prescribed result". His Honour could find no basis within the Code for saying that such was the case (page 93).

61 Then, in Johnson v The Queen [1976] HCA 44; (1976) 136 CLR 619, the High Court was required to consider s 23(2) of the Crimes Act 1900 (NSW). That section then read as follows:

"Where, on [the trial of a person for murder], it appears that the act or omission causing death does not amount to murder, but does amount to manslaughter, the jury may acquit the accused of murder, and find him guilty of manslaughter, and he shall be liable to punishment accordingly:

Provided always that in no case shall the crime be reduced from murder to manslaughter, by reason of provocation, unless the jury find:-

(a) That such provocation was not intentionally caused by any word or act on the part of the accused;

(b) That it was reasonably calculated to deprive an ordinary person of the power of self-control, and did in fact deprive the accused of such power; and

(c) That the act causing death was done suddenly, in the heat of passion caused by such provocation, without intent to take life."

62 The Court held (consistently with what had been decided in Sreckovic) that the requirement that the mode of retaliation should bear a reasonable proportion to the act of provocation was not a separate element which the accused must establish, but was a relevant matter to pars (b) and (c) of the proviso. Johnson has since been applied in Moffa, above, at 611, per Barwick CJ, and 612, per Gibbs J, and, in a Western Australian context, in Censori at 91, per Burt CJ, 98, per Wickham J and 106, per Kennedy J.

63 Johnson was applied in Stingel. There, at 325, the High Court also approved of what had been said by Taylor and Owen JJ, in Parker v The Queen [1963] HCA 14; (1963) 111 CLR 610 at 641, in respect of s 23(2) of the Crimes Act 1900 (NSW), as follows:

"surely, when the proviso requires that the provocation must be such that it was reasonably calculated to deprive an ordinary person of the power of self-control, and did in fact deprive the accused of such power, it is speaking of loss of the power of self-control in relation to the act or acts causing death. In other words, the question is not whether there was some loss of the power of self-control, but whether the loss of self-control was of such extent and degree as to provide an explanation for or, to constitute, in some measure, an excuse for the acts causing death. And, of course, the provocation must have been of such a character as was calculated to deprive an ordinary person of the power of self-control to that extent."

64 The Court considered that this extract should be accepted as applying to s 160(2) of the Criminal Code (Tas). Section 160 of that Code provided that:

"(1) Culpable homicide, which would otherwise be murder, may be reduced to manslaughter if the person who causes death does so in the heat of passion caused by sudden provocation.

(2) Any wrongful act or insult of such a nature as to be sufficient to deprive an ordinary person of the power of self-control, and which, in fact, deprives the offender of the power of self-control, is provocation, if the offender acts upon it on the sudden, and before there has been time for his passion to cool.

(3) Whether the conditions required by subsection (2) were or were not present in the particular case is a question of fact, and the question whether any matter alleged is, or is not, capable of constituting provocation is a matter of law."

65 Their Honours went on to say (at 325) that, as a consequence of their application of what had been said in Parker to these provisions, the wrongful act or insult must have been capable of provoking an ordinary person not merely to some retaliation, but to retaliation to the degree and method and continuance of violence which produces the death.

66 A similar test was applied in Buttigieg, above, at 27, where the Court accepted the proposition that conduct can amount to provocation for the purpose of s 304 of the Queensland Code if a reasonable jury could conclude that it might be capable of provoking an ordinary person to retaliate as the accused person did.

67 Finally, in Masciantonio, above, at 67, Brennan, Deane, Dawson and Gaudron JJ accepted it as being well established that the question of proportionality was, at common law at least, absorbed in the application of the test of the effect of the provocation upon the ordinary person. Their Honours said that, as Barwick CJ had pointed out in Johnson at 639, in considering whether an ordinary person could have reacted in the way in which the accused did, it is the formation of an intent to kill or do grievous bodily harm which is the important consideration rather than the precise form of physical reaction.

68 In R v Chhay (1994) 72 A Crim R 1, the New South Wales Court of Criminal Appeal (Gleeson CJ and Finlay and Abadee JJ) said, in the context of s 23 of the Crimes Act 1900 (NSW), that there is no requirement that the killing immediately follow upon the provocative act or conduct of the deceased and that a loss of self-control could develop after a lengthy period of abuse, and without the necessity for a specific triggering incident. However, it is obvious that there must be a sudden and temporary loss of self-control and a lengthy period of brooding, before retaliation, would defeat the defence: R v Hayward (1833) 6 C & P 157 at 159.

69 It is well established that the onus is upon the Crown to establish beyond reasonable doubt that the killing was unprovoked: Moffa, above, at 607, 612 and 628; Stingel, above, at 332; and Buttigieg, above, at 27 and 33.

70 There are many cases in which provocation has been said to arise out of some form of sexual misconduct by the spouse of the accused person. They are, in some respects, a curious collection, revealing conflicting attitudes which, over time, have shifted with the prevailing community standards.

71 The older cases (and many of the more modern ones) show a willingness to leave open the defence of provocation in a case in which a person (usually the husband) finds his or her spouse in an act of adultery. Windeyer J, in Parker, above, at 653 - 654, referred to the early cases as follows:

"As a result of early cases in which the question of murder or manslaughter was submitted to the ruling of the judges, two rules became established concerning particular forms of conduct which would or would not suffice. At one end of the scale stood the case of a husband suddenly discovering his wife actually in the act of adultery. If he thereupon immediately killed her or her paramour, it was not murder but manslaughter. It was so held in 1671 in ... Maddy (1671) 1 Ventris 158 [1726] EngR 568; [86 ER 108]; and ever since this has been taken to be a rule of law. It is ordinarily said to depend upon the doctrine of provocation. But it may be that it has an older derivation; for in many parts of Europe in ancient times a husband finding a man in adultery with his wife might lawfully kill him upon the spot: see Blackstone, Commentaries, Book IV, p 191; Puffendorf Book II, ch 5, 15."

72 In Roche, Brinsden J said that, from time immemorial, it has been held that a husband finding his spouse in the act of adultery may be found to have acted under provocation. He mentioned that Sir William Blackstone, in his Commentaries on the Laws of England, Book IV, page 190, justifies this upon the ground that "there could not be a greater provocation", a sentiment echoed, years later, by Bray J in R v Greening (1913) 3 KB 846, who (at 849) described the "gross offence" of adultery as being "the gravest possible offence which a wife can commit against her husband".

73 In Hutton, a more modern case, the appellant had found his de facto wife in a sexually compromising situation with a male friend. He said (and, as is common to most of these cases, his version was the only version available) that she had laughed scornfully at him. He shot both the woman and her friend. Green CJ (at 319) considered that the "insult", in all of the circumstances of the case, was capable of being held to be of such a nature as to be sufficient to deprive an ordinary person in the appellant's situation of the power of self-control. Cox J arrived at a similar conclusion, the third Judge, Underwood J, having been in dissent.

74 Cox J, in the course of his judgment, said that, under s 160 of the Tasmanian Code, there was no automatic reduction of the crime of murder to manslaughter by virtue of the accused finding his wife in the act of committing adultery, but added that it could scarcely be argued that such circumstances would not as a matter of law require a Judge to put the issue of provocation to the jury.

75 I have mentioned that, in Roche, the appellant, who had recently separated from his wife, had gone to the matrimonial home, found his wife in the bedroom with another man, stabbed and killed the other man and then attacked his wife. He asserted that he had been provoked, but was convicted of the wilful murder of the man and of the attempted murder of his wife. The Crown conceded that the act or insult of the deceased constituted by his being in bed with the appellant's wife was a wrongful act or insult of such a nature as to be likely, when done to an ordinary person, to deprive him of his power of self-control. Burt CJ considered that the concession had been rightly made. I have earlier referred to the judgment of Brinsden J in that case, his Honour having accepted, for the purposes of the case, that the conditions observed by the appellant when he went into the bedroom could amount to a wrongful act or insult within the meaning of s 245.

76 In Stevens, above, at 392, Demack J (with whom the other members of the Court were in agreement) said that it was well recognised in the judgments that the rule that operates to reduce murder to manslaughter when a spouse is found in an act of adultery is a special rule. However, his Honour considered that the rule "ha[d] its place" in s 304 of the Queensland Code.

77 There is also the suggestion, in the cases, that it is not necessary that the adulterous pair should be caught in the act of adultery, but that it is enough if they are found together in circumstances from which an immediately recent act of adultery can safely be inferred. So, for example, in Hutton, at 34, Cox J referred to the following extract from Russell on Crime: A Treatise on Felonies and Misdemeanours (12th ed, 1964) p 529, commenting on the common law position as follows:

"What must be noted here is that it never seems to have been necessary to decide in any case tried in England exactly what set of facts might be covered by the expression 'finding in the act of adultery'. The point has, however, arisen in an African case, Chacha s/o Wamburu v R (1953) (Court of Appeal for Eastern Africa) and it was held not to be necessary that the wife and the adulterer should be caught during the actual period of intercourse; but if they are found together in circumstances from which immediately recent intercourse is and can safely and correctly be inferred, they may be found in the act of adultery within the meaning of the rules."

78 Many of the earlier cases also drew a distinction between infidelity (or even proposed infidelity) in marriage, on the one hand, and in circumstances in which there was merely a de facto relationship, on the other.

79 In Scott, above, at 64, McMillan J said that he could not "help thinking that if a husband and wife were living together and the wife were to tell her husband that she intended to have nothing more to do with him, and that she intended to live with another man, it would be an insult in the ordinary sense of the word". However, he said (ibid), on the other hand, "it would be clearly no insult if a woman with whom a man had been having merely casual intercourse told him she would not live with him any more, and would have nothing more to do with him, as she intended living with another man". Burnside J preferred to approach the case upon the basis that an insult is closely allied to an act in the context of the Code and that it could not arise merely from words. He said that the act conveyed by the words was not wrongful in circumstances in which the deceased woman had not been under any legal obligation to remain with the accused and was consequently committing no unlawful act as against him in leaving his house and taking up a residence with someone else (page 69).

80 In R v Greening, above, at 849, Bray J said (in words reminiscent of another time):

"It is a gross offence against a husband that his wife should commit adultery, but there is no such offence against a man if a woman not his wife, although he may be living with her, chooses to commit such an act. In the latter case the man has no such right to control the woman as a husband has to control his wife."

81 In R v Lyden [1962] Tas SR 1 the accused, in raising the defence of provocation, had relied upon the observed commission of, or preparation for, an act of "adultery" by a person described as his "concubine" for the last 11 years. It was held, in the Tasmanian Supreme Court, that, because such "adultery" was an act adversely affecting the family, for which Parliament gave civil remedies, it was a wrongful act capable of constituting provocation. Gibson J there added (page 4) that he had grave doubts as to whether or not conduct of that kind could constitute an insult because it seemed to him that an insult in s 160 of the Criminal Code (Tas) "probably means an insult consciously offered by one person to another, but not something which is not intended to be seen or observed ...".

82 Mere suspicion of adultery, it seems, is not enough. In R v Kelly [1850] EngR 57; (1848) 2 CAR & K 814; 175 ER 342, the deceased woman had asked the accused man for money and had then gone to a canteen where the accused man observed her drinking with another man. Rolfe B said, in the course of his summing up to the jury, "... to take away the life of a woman, even your own wife, because you suspect that she has been engaged in some illicit intrigue, would be murder." In Pearson's case (1835) 2 Lew CC 144; 168 ER 1133, Parke B said that, "If a man killed his wife, or the adulterer, in the act of adultery, it is manslaughter ... provided the husband has ocular inspection of the act, and only then," an observation which led Viscount Simon to say, in Holmes v Director of Public Prosecutions [1946] AC 588 at 598, that "Even if Iago's insinuations against Desdemona's virtue had been true, Othello's crime was murder and nothing else."

83 The situation with respect to confessions of adultery is more problematical.

84 In Holmes, above, at 600, the Privy Council expressed the opinion that a sudden confession of adultery, without more, can never constitute provocation of a sort which might reduce murder to manslaughter. However, the case was decided against a background in which it had long been accepted that "mere words" (not being menace of immediate bodily harm) did not reduce murder to manslaughter (see page 599), although their Lordships appeared to draw a distinction between words as an expression of abuse and words as a means of conveying information of a fact, or of what is alleged to be a fact (page 599). They also left open the possibility (at 600) that "in circumstances of a most extreme and exceptional character" words alone might reduce the crime of murder to manslaughter.

85 The derivation of the proposition about "mere words" was explored by Ormiston JA in R v Tuncay [1998] 2 VR 19 at 20. His Honour there said:

"... it should be observed that the proposition about 'mere words' derives from a period in the law when issues as to what constitutes provocation were treated as questions of law to be resolved by the judge and before any direction akin to that now given to juries (although expressed differently) was first introduced in England in the early nineteenth century: cf Russell on Crime, 1986, 12th ed, p 518. The alleged principle as to provocation by 'mere words' goes back well beyond that time and, so far as is generally understood, back to the memorandum of the judges of England on 28 April 1666 in R v Morly (1666) Kel. 53; 84 ER 1079. There at Kel. 55; ER 1080 the judges assembled resolved that '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 be manslaughter': see also R v Mawgridge (1707) Kel 119 at 130-1; [1708] EngR 24; 84 ER 1107 at 1112. In my opinion, to the extent that these propositions were subsequently adopted, they should be treated as merely reflecting what the reasonable or, now, 'ordinary' person would have been treated by a jury as concluding if provocation confined to words had been allowed to go to the jury. The difficulties inherent in taking that view in the twentieth century and the qualifications put on the broad proposition may be seen in Holmes ... and Moffa ... . The general principles as to provocation having now been restated in Stingel and Masciantonio, the question may now be left to the jury as the constitutional tribunal of fact to decide what is the ordinary person's response to the use of allegedly provocative words, whatever be their form and context, but subject to the power of the trial judge to take away from the jury any claim of provocation which could in no circumstances properly lead to a verdict of manslaughter."

86 In Tuncay the relevant words had involved a statement by the deceased of an intention to leave her husband after 15 years of marriage and take with her their two children, notwithstanding that the accused husband said that he would commit suicide if she did so, to which she responded by saying, "I wish you were dead."

87 Returning to the issue of the sufficiency, for the defence of provocation, of a sudden confession of adultery, it seems to me that there is no real consistency in the cases, with much (perhaps not surprisingly) depending upon the individual circumstances of each.

88 In Dunstan v The Queen (which preceded Holmes) McMillan CJ (with whom Northmore and Dwyer JJ were in agreement) could find no sufficient provocation on the facts before him but was prepared to accept that "if a husband suddenly hearing from his wife that she had committed adultery, but having had no idea of such a thing before, were thereupon to kill his wife, it might be manslaughter". Then, in Mehemet Ali, above (which post-dated Holmes), Wolff SPJ said, at 35, that "[t]he distinction at common law between circumstances suggesting adultery and discovering a wife in the act of adultery ... seems to pay no regard to psychological reaction". His Honour did not think that this distinction formed part of the law of Western Australia.

89 In Vassiliev, above, the appellant had, for some time, suspected his wife of infidelity. After a domestic argument he shot her with a rifle and was charged with her murder. He did so, he said, after confronting her with compromising evidence and threatening to shoot her in order to frighten her into admitting her infidelity. He said that she admitted her infidelity and told him that she loved another man more than she did him. It was then that he shot her. Without binding himself to that conclusion, Herron CJ inclined to the opinion that the issue of provocation might have been left to the jury for decision. However, each of Sugerman JA and Begg J considered that the evidence of provocation was insufficient to justify a jury in returning a verdict of manslaughter.

90 In Moffa the appellant gave evidence of the fact that his wife had threatened to leave him, after some years of unhappy married life. The appellant said that, on the morning of the killing, she had rejected his advances in a scornful and abusive way and had boasted of promiscuous conduct with men in the neighbourhood. Faced with this, and with other conduct described by him, the appellant said, he lost self-control, went outside the house, picked up a piece of iron pipe and killed his wife with it. Barwick CJ, at 605, after noting that it had long been accepted that a confession of adultery, even if unexpected and sudden, could never afford ground for the conclusion that an ordinary man would, as a consequence, be led to lose self-control to the point of forming an intention to murder or to do grievous bodily harm, said that "circumstances do alter cases and that such an unqualified rule is hardly consonant with the 'benignity of the law' in its concession to 'human infirmity': Foster, Discourse on Homicide, 2nd ed. (1776), p 255."

91 In the same case, Gibbs J, at 616, after referring to Holmes, found it "impossible", in the light of that authority, to hold that the evidence in the present case raised an issue of provocation fit to be considered by a jury. His Honour went on to say (at 616 - 617):

"The question has to be decided in the light of contemporary conditions and attitudes, for what might be provocative in one age might be regarded with comparative equanimity in another, and a greater measure of self-control is expected as society develops."

92 Stephen J, too, referred to Holmes in Moffa, saying that words alone, whether in themselves insulting or obscene, or which recount a necessarily provocative event or fact, would, as Viscount Simon had said, have to involve "circumstances of a most extreme and exceptional character" if they were to reduce murder to manslaughter. However, his Honour said (page 619) that if the jury believed that the deceased had not simply admitted to an adulterous relationship, but had boasted of wholesale promiscuity with men in the neighbourhood, had showed no contrition and had combined her "boast" with abuse and with some show of violence notwithstanding the devotion shown her by the appellant, then the jury might conclude that an ordinary man might be so provoked as to lose self-control and act as the applicant said he did.

93 Mason J, too, applied what had been said in Holmes, saying (at 620 - 621):

"There is no absolute rule against words founding a case of provocation. The existence of such an absolute rule would draw an arbitrary distinction between words and conduct which is insupportable in logic. No doubt provocative acts justifying the reduction of murder to manslaughter are more readily imagined and more frequently encountered than provocative words which justify the same result. Violent acts, rather than violent words, are more likely to induce an ordinary person to lose his self-control. And a case of provocation by words may be more easily invented than a case of provocation by conduct, particularly when the victim was the wife of the accused. There is, therefore, an element of public policy as well as common sense in requiring the close scrutiny of claims of provocation founded in words rather than conduct."

94 In R v Romano (1984) 36 SASR 283 the Court considered it appropriate that the defence of provocation be allowed to go to a jury in circumstances where there was nothing more than a wife's taunts and some implications of her infidelity. However that case has been said to be out of line with the general stream of authority.

95 So, by way of example, in Buttigieg, above, at 37, the Court said that it seems now to be accepted in the cases that the use of words alone, no matter how insulting or upsetting, is not sufficient for the defence to apply to a killing except perhaps in circumstances of a most extreme and exceptional character. Their Honours also said that a confession of adultery, even a sudden confession to a person unprepared for it, is never sufficient without more to sustain the defence. They referred, in that respect, to Holmes and to Moffa and added, at 38, that they found it very difficult to reconcile Romano with other decisions on this topic. They considered that the result in that case was out of line with the general stream, perhaps because two of the three Judges considered that the critical test depended on "how ordinary people with particular characteristics behaved (at 292, 294 ...)", an approach which preceded the clarification in Stingel.

96 In Director of Public Prosecutions v Leonboyer [1999] VSC 450; (1999) 109 A Crim R 168 Cummins J, too, considered that Romano was out of line. His Honour added that the case was of less utility because the accused had been a paranoid schizophrenic.

97 In Leonboyer the accused had killed his fiancée by repeatedly stabbing her. This had happened, on his version of events, immediately after his fiancée told him, suddenly and unexpectedly, that she had been having sex with another man who "did it better" than the accused. Cummins J said that the door is not fully closed to words alone being sufficient in appropriate circumstances to constitute provocation. His Honour went on to say (at 172):

"In Palmer [1913] 2 KB 29 at 31 the court (referring to Rothwell ... and 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."

When Should Provocation Be Left to the Jury?

98 In Guerin, above, at 260, Asprey JA, quoting Holmes at 601, said that, as society advances, it ought to call for a higher measure of control in all cases. I have mentioned that, in Moffa, at 616 - 617, Gibbs J said that the question whether to leave an issue of provocation to a jury has to be decided in the light of contemporary conditions and attitudes, for what might be provocative in one age might be regarded with comparative equanimity in another, and a greater measure of self-control is expected as society develops.

99 As Stingel made plain, at 334, a trial Judge must be mindful of the fact that the question is not whether he or she considers that there is a reasonable doubt that the killing was provoked, rather, that is a question for the jury. The question for the trial Judge is whether there is material in the evidence which is capable of constituting provocation (see also Buttigieg, above, at 35).

100 It is settled that the question whether provocation should be left to the jury falls to be resolved by reference to the version of events most favourable to the accused: Lee Chun-Chuen at 230; Moffa at 614, 622; Hutton at 317, 325; Stingel at 318; Buttigieg at 27; and Masciantonio at 67 - 68.

101 It is also settled that, while a trial Judge, faced with the question whether or not to withdraw the defence of provocation from a jury, is likely to tilt the balance in favour of the defence, an appellate court "must apply the test with as much exactitude as the circumstances permit": Lee Chun-Chuen at 230; Guerin at 268; and Moffa at 613 - 614. In Buttigieg, above, at 36, the Court said:

"It has long been recognised that if there is any possibility that the issue might be left to the jury, it is best that the trial judge should let it go. The opportunity is not then lost, and an appeal court may in due course give more extended consideration to the question whether the accused was given an unnecessary benefit. It has been observed that appeal courts have the opportunity to apply the appropriate tests 'more strictly', and not uncommonly they have seen fit to apply the proviso upon the basis that the evidence was not capable of sustaining the issue that was left to the jury."

102 That, of course, should not be taken as an invitation to a trial Judge to leave the issue to the jury whenever invited to do so.

103 Next, I should mention that a failure by the accused person to testify to a loss of self-control, or otherwise to raise the defence of provocation, is not fatal to the defence. So much is revealed by the judgment of the House of Lords in Lee Chun-Chuen at 232. Their Honours went on to say, at 233, that an admission of loss of self-control would be bound to weaken, or even destroy, an alternative defence such as accident or self-defence "and the law does not place the accused in a fatal dilemma". They said (ibid):

"But this does not mean that the law dispenses with evidence of any material showing loss of self-control. It means no more than that loss of self-control can be shown by inference instead of by direct evidence. The facts can speak for themselves and, if they suggest a possible loss of self-control, a jury would be entitled to disregard even an express denial of loss of temper, especially when the nature of the main defence would account for the falsehood. An accused is not to be convicted because he lied.

... A jury may reject, as well as an accused's denial of loss of self-control, a part or the whole of his account of events. What is essential is that there should be produced, either from as much of the accused's evidence as is acceptable or from the evidence of other witnesses or from a reasonable combination of both, a credible narrative of events disclosing material that suggests provocation in law. If no such narrative is obtainable from the evidence, the jury cannot be invited to construct one."

104 See also Guerin at 256 and 269 (where it was said that even the setting up of an alibi would not exclude from the jury the issue of provocation if there were material to support it); Sreckovic at 90; Hutton at 317; Van Den Hoek at 169; Stingel at 333; Amoe v Director of Public Prosecutions (Nauru) [1991] HCA 46; (1991) 66 ALJR 29 at 35; Buttigieg at 27 and Pangilinan at 63.

105 That brings me, at last, to the facts of this case.

106 It will be plain, from what I have already said, that the appellant's failure to raise, at the trial, any defence of provocation, or even to give evidence of any loss of self-control, is not fatal to his case.

107 It will also be plain that the question of whether or not there was any issue of provocation fit to go to the jury falls to be resolved by reference to the version of events most favourable to the appellant. In this case that version would, no doubt, be to the effect that the appellant found the two knives in the glove box of his car, as he said he did, and that he took them with him to protect himself, intending only to speak to his wife about her deception of him in respect of the state of repair of her car and about her unwillingness to let him see his children. That version would also encompass the appellant's evidence of his anger when he saw his wife kissing his friend Cox, and the evidence of Cox himself to the effect that he could see the anger in the appellant's face.

108 However, in my opinion, even this version of the facts failed to raise any issue of provocation fit to be placed before the jury, regardless of whether the common law notion of provocation should be adopted or that provided for by s 245 of the Code.

109 As to s 245, it is difficult to see how the kissing of a man by an estranged wife (who had, on any version of the facts, been in an unhappy relationship in the course of which she had been assaulted by her husband) should be regarded as a "wrongful act" on any of the constructions which have been put upon that expression: see, for example, Roche, above, at 284, per Brinsden J, and Stevens, above, at 386 (although what was there said should now be considered in the light of what has since been said by the High Court in Stingel, above, at 322). Nor, in my opinion, could the conduct to which I have referred qualify as an insult.

110 In any event, even if the conduct in question could be described as a wrongful act or insult, or as behaviour which was offensive to the appellant, I am entirely unable to accept that it might be categorised as such as must have been capable of provoking an ordinary person to retaliation to the degree of violence which produced the death of the appellant's wife (see Stingel at 325) even if the gravity of the conduct is assessed by reference to the relevant characteristics of the appellant, including the past history of his relationship with his wife. Any other conclusion would, in my opinion, be inconsistent with the tenor of the cases to which I have referred. It would also set far too low a standard for the conduct which a civilised society is entitled to expect from an ordinary person.

111 The appellant, in his submissions, sought to rely upon what had been said by Brooking J, in Kenney, above, at 470 - 472, in contending that the defence of provocation was open to him if he had been provoked by Cox's conduct in kissing his wife and if, having intended to attack only Cox, he killed his wife by accident. However, even assuming that a defence of this kind was open, the obstacle remains that the conduct relied upon as constituting the provocation act, the kissing of the appellant's estranged wife by the appellant's friend, could not be regarded as having been capable of provoking an ordinary person to retaliation to the degree of violence to which I have referred.

112 I should add, before leaving this ground, that I have taken into account the history of difficulties which the appellant had had with his wife as regards obtaining access to his children (including those experienced on the day of the killing) only for the purpose of assessing the gravity of the conduct now said to constitute the provocation on the night in question. Because those difficulties had been present for some time, they could not, on their own, have led the appellant to act in the "heat of passion" (see Hayward, above, at 159).

113 It follows, from these conclusions, that ground 1 fails.

114 As to grounds 2(A) and 2(B) of the grounds of appeal, I am not persuaded that the trial Judge made any error in failing to exclude the evidence of Carmen Nauer, Mr Cole or Constable Kerr with respect to their telephone conversations with the appellant.

115 In each case the evidence was led without objection by the appellant's counsel. In my opinion, he was right in raising no objection. The content of each conversation, to which I have earlier referred, was open to be characterised as an admission by the appellant as regards his motive for, or his intention during, his conduct on the evening in question.

116 The trial Judge, in the course of his directions to the jury, made it plain that it was for them to decide what had been said in the course of each telephone conversation. His Honour also told the jury that, normally, evidence of what a person has said out of court is not admissible, but that admissions made by an accused person are allowed to be given in evidence. He told the jury that the Crown invited them to conclude from what the appellant had said to the three persons concerned that he knew what he had done and that he had intended to do it. His Honour went on to say:

"It's for you to judge whether any statement made by the accused during these telephone conversations contained any relevant admission as to his intention at the critical time. If you find that they do, the statements made by him to these three people do contain admissions, you can use those admissions as evidence of his guilt, use the whole telephone conversation, the whole of what he said, both good and bad.

You must first decide whether the accused said what the crown witnesses told you that he said. That's the first step. Then you have to decide whether what he said amounts to an admission of a deliberate stabbing accompanied by a particular intention; in this case the crown would say an intention to kill. Even if you accept the evidence of the crown witnesses, if the statements might amount to an admission of nothing more than that there was some physical confrontation and rude and aggressive behaviour and an attempted assault on ... [Mr Cox], if you find that what he said amounted to no more than an admission of that kind of conduct, then you couldn't treat the statements as an admission of an intention to kill by stabbing. Always remember this: admissions of guilt, if you find any to have been made, are not necessarily true. They are simply part of the evidence for you to consider in the case."

117 In my respectful opinion, these directions made plain to the jury, in a manner which was entirely appropriate, how this evidence should be dealt with by them.

118 I am consequently unable to see any basis upon which it might be said that the admission of the evidence, or the manner in which it was dealt with by the trial Judge, disclosed any error.

119 The appellant, in his submissions, sought to rely upon the provisions of s 570D(2) of the Code, to the effect that admissions in serious cases which are not video-taped are inadmissible unless the prosecution proves, on the balance of probabilities, that there is a reasonable excuse for there not being a video-tape recording or the Court is satisfied that there are exceptional circumstances which, in the interests of justice, justify the admission of the evidence. However, his reliance on that section was plainly misplaced. This was not a situation in which the prosecution could have video-taped admissions by the appellant in the course of an uninvited telephone call and the exception provided for by s 570D(2)(b) of the Code quite plainly applies.

121 As to ground 3, the appellant contended that the trial Judge erred by failing to warn the jury of the dangers of the uncorroborated evidence of the witnesses the subject of ground 2(A). There was plainly no need for any warning in that respect. All that was required was for the trial Judge to remind the jury that what was said in the course of these conversations was, to some extent at least, in dispute and this was done. There is no substance to this ground.

122 As to ground 4, the appellant contends that the trial Judge erred in law in admitting evidence of the physical altercation which took place between the appellant and each of his father-in-law and wife on 25 June 2001. His contention is that this evidence was highly prejudicial and of little or no probative value.

123 The evidence in question was led as relationship evidence. It was relevant to show the relationship which existed between the deceased and the appellant so as to explain his later conduct and to assist the jury in choosing between the Crown's contention that the appellant's wife was murdered and the appellant's defence to the effect that she died as a result of an unwilled act or accident: cf Wilson v The Queen [1970] HCA 17; (1970) 123 CLR 334.

124 In my opinion, this evidence was properly admitted for that purpose. It demonstrated the depth of feeling which existed in the appellant, not long prior to the killing of his wife, in respect of what he saw as being her failure to co-operate with him in respect of their children and, perhaps, other matters.

125 Moreover, the fact of a physical altercation was acknowledged by the defendant's then counsel to be admissible. He did express some concern "about the way in which the witness might give" that evidence, but said that that was a matter for the prosecutor "to control".

126 The concern expressed by the appellant's counsel appears to have been well justified. When Mr Cole gave evidence of what took place during the course of the appellant's visit, he was graphic in his description of the assault upon his daughter (he said that the appellant was "knocking the living seven bells of shit out of her face") and, even more importantly, volunteered the opinion that if he had not dragged the appellant off his daughter, he was "pretty sure he would've bloody killed her then".

127 That evidence should plainly not have been given. However, immediately after Mr Cole had completed his evidence, the trial Judge addressed the jury in respect of it. His Honour told the jury that the purpose of allowing that evidence was only that of providing background against which the jury could assess and evaluate the evidence with respect to events on the night on which the deceased woman died. He went on to say:

"The evidence you heard from Mr Cole about the prior incident is not evidence of the accused's state of mind or of his intention on the night in question or as to what happened on that night. You can use it to assist you to comprehend the true relationship between these two people but it has no other purpose and you may not use it except for that limited purpose.

In particular you can't use the evidence to reason that because the accused said and did what is alleged by Mr Cole to have [been] said and done on that occasion that he is the kind of person who is likely to have committed the offence with which he is charged and therefore must be guilty. You can't employ that form of reasoning. You must - and I will say a little more about this to you in my final charge but your duty is to focus on the evidence of the events of the night in question.

If you are not satisfied of the guilt of the accused on the evidence of the events of that night, you couldn't use this kind of what we call relationship evidence, background evidence, to convict him. Furthermore, of course, unless you find the evidence of Mr Cole to be truthful and reliable, unless you believe it to be true, you must put it aside altogether. You couldn't put it to any use at all in this trial."

128 In my opinion, that direction was sufficient to overcome any prejudice which might have been caused arising out of Mr Cole's graphic description and his uninvited expression of opinion as regards the likely outcome of the assault, had he not intervened.

129 I am consequently not prepared to uphold this ground.

130 Ground 5 is that which contends that the trial Judge erred in law by failing to leave to the jury the "question of accident".

131 The appellant contended, in this respect, that, if his evidence was to be believed, it would have established that he had accidentally stabbed his wife and that, when she fell to the ground, the knife had been driven further into her body by her body weight. His contention is that the trial Judge, in addressing the jury, failed adequately to explain the issue of accident or, perhaps, that of unwilled acts.

132 There is no substance to that contention. His Honour addressed the jury at some length on both issues arising under s 23 of the Criminal Code, notwithstanding that the second limb of that section, relating to an event which occurs by accident, did not strictly arise.

134 The final ground of appeal relates to the alleged incompetence of counsel. In my opinion, it is entirely without substance.

135 The appellant pointed to a number of what he contended were shortcomings in the standard of his representation at the trial.

136 He submitted, in this respect, firstly that his counsel should not have allowed evidence to be led of the events which occurred on 25 June 2001. I have already said that that evidence was properly admitted as relationship evidence and that, to the extent that it went further than it should have, this was through no fault of his counsel. I have also said that any prejudice was, in any event, sufficiently overcome by the directions of the trial Judge.

137 Next, he submitted that his counsel was incompetent in not having insisted on the leading of evidence, by the Crown, from Senior Constable Wadon of the Gosnells police station who, in a statement prepared by him, had said that, when he arrived at the scene on the night of 27 July 2001, Mr Cox identified himself as being the "boyfriend of the deceased" when he had denied, in the course of his evidence, that he was such. There was other evidence, also directed to establishing the prior relationship between Mr Cox and the deceased, which, he said, could and should have been led or adduced.

138 In my opinion, none of this evidence was material to the trial. In any event, as appears from what I have earlier said, Mr Cox did not deny the existence of a relationship between himself and the deceased, but said, in the course of his evidence at the trial, no more than that he had not permitted the deceased to kiss him because "we'd said that we can't be together".

139 Next, the appellant said that his counsel should have led evidence at the trial in the form of two medical reports.

140 The first was one, from the Ranford Medical Centre, to the effect that the appellant was being treated for depression. The appellant said that this would have contributed to a defence of provocation in that it would have contributed to a finding that he had lost control "over his mind and will". No such connection seems to me to follow and I am not persuaded that any mistake in that respect was made by counsel for the appellant.

141 The second report is one relating to a broken bone in the appellant's left hand. I have earlier mentioned that there was, at the trial, mention that the accused had pain in his left hand when driving his vehicle. However, he suggests that, if the medical report had been tendered, this would have supported his version of what had happened on the night of 27 July. He said that it would have established that he could not, as had been alleged by Mr Cox, have pulled his wife back by his left hand. I am not at all persuaded that there is any substance to that contention as there is no suggestion that the pain in the appellant's left hand was such as to render it unusable.

142 Other issues raised by the appellant in this context, such as the allegedly deficient cross-examinations of Mr Cox and of Miss Nauer and also a failure to lead evidence from other witnesses who might have cast doubt on the recollection of Miss Nauer (the appellant said that it could have been established that she had been smoking marijuana, as well as drinking, on the night in question) have no substance. Quite clearly, a judgment was made by defence counsel in respect of each of those matters and nothing has been suggested to us which, in my opinion, suggests that that judgment was other than reasonable.

144 It follows, from these conclusions, that the appeal against conviction should, in my opinion, be dismissed.

The Application for Leave to Appeal Against Sentence

145 The applicant's application for leave to appeal against sentence was filed almost a year out of time. He said that this was because it had only recently come to his attention, in the course of preparing his appeal against conviction, that "sentences handed down to other convicted murderers ... [were] considerably lower than ... [his] sentence and that [there were] circumstances surrounding their cases which indicate ... a more serious and violent disposition" than that in this case.

146 While the delay is lengthy, I am, in these circumstances, disposed to grant the extension of time, more particularly having regard for the fact that the appellant was unrepresented.

147 There is only one ground of appeal against sentence. That is to the effect that the minimum sentence of 14 years was manifestly excessive given the applicant's age, antecedents and the circumstances of the commission of the offence.

148 The applicant was, at the date of sentencing, 41 years of age. He has a fairly lengthy record of prior convictions. Most relate to relatively minor offences. However, in 1989 the appellant was convicted of the offences of indecent assault, rape, burglary, grievous bodily harm, robbery and stealing. He received an aggregate term of 7 years' imprisonment. He was released on parole in September 1992. His offending since that time relates mostly to driving offences.

149 A pre-sentence report obtained in respect of the appellant disclosed that he suffered from "significant personality disturbances involving narcissism, control and aggression which can account for his potential for violence and domineering nature".

150 As to the circumstances of the offence, the trial Judge, in sentencing the appellant, made it plain that he did so upon the basis that he was satisfied that the appellant had deliberately driven to the home of his wife's brother and sister-in-law, perhaps by following his wife there. He also found that the appellant had observed the party, at that house, for some time until his wife and Cox had been left alone in the games room and that he then approached them. He found that the appellant struck his wife in the back with one of the two knives which he had taken with him as she turned to get away. His Honour said that he did not believe that the appellant's purpose in confronting his wife was only to speak to her about access to the children. Rather, he said, it was that of vindicating his feelings of extreme anger against her and her family and to show them and her that he could not be messed about. His Honour expressed himself to be quite satisfied that the appellant deliberately struck his wife with the knife, intending that it penetrate her body. He went on to say:

"You had made up your mind to do your wife serious harm with a large knife by stabbing her, to punish your wife and her family because they were not treating you with the respect that you considered you deserved. I am satisfied that you deliberately armed yourself with these knives, that you watched your wife for a considerable period of time from an adjoining property and when you saw an opportunity to get at her, you went over the fence into the house and plunged one of the knives into her back to its hilt, and then attacked the young man in the room with the other knife.

You have shown no remorse, trying to shift the blame onto Cox, claiming that it was he who pushed your wife onto you in order to protect himself from you. You claimed that the knives happened to be in the glove box of your car, which you say you purchased only that day. You say you happened to find them in the glove box and you say you only took them with you into the premises for self-defence, in case someone there should attack you. I do not believe any of that, as I have already indicated.

You did not cooperate with the police and have maintained your plea of not guilty throughout."

151 After referring to a number of other matters the sentencing Judge sentenced the appellant to a period of life imprisonment and set the minimum period of 14 years to which I have earlier referred.

152 His Honour referred, in that respect, to s 90 of the Sentencing Act 1995 which provides that a court that sentences an offender to life imprisonment for murder must set a minimum period of at least 7 and not more than 14 years that the offender must serve before being eligible for release on parole. He said, in that respect, that the period of 14 years is not to be taken as being reserved for the worst conceivable case of murder falling short of wilful murder and that, in his opinion, this case fell into the worst category of cases.

153 The appellant's principal submission, in his oral submissions before the Court, was to the effect that his Honour was in error in placing this case in the worst category. It is important to bear in mind what was said, in this respect, by Burt CJ in Bensegger v The Queen [1979] WAR 65 at 68, as follows:

"A maximum sentence prescribed by statute is not reserved for the worst offence of the kind dealt with by it that can be imagined. If such were the case it could never be imposed as the addition of further non-existing but aggravating circumstances would never be beyond the reach of imagination. The true rule as I understand it is that the maximum sentence should be reserved for the worst type of case falling within the prohibition or, as it is expressed by Dwyer CJ in Reynolds v Wilkinson (1948) 51 WALR 17, at 18, 'for the worst cases of the sort'. That expression should be understood to be marking out a range and an offence may be within it notwithstanding the fact that it could have been worse than it was."

154 Also, in Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 478, Mason CJ, Brennan, Dawson and Toohey JJ said:

"The second subsidiary principle material to this case is that the maximum penalty prescribed for an offence is intended for cases falling within the worst category of cases for which that penalty is prescribed: Ibbs v The Queen ... . That does not mean that a lesser penalty must be imposed if it be possible to envisage a worse case; ingenuity can always conjure up a case of greater heinousness. A sentence which imposes the maximum penalty offends this principle only if the case is recognizably outside the worst category."

155 Similar comments have, more recently, been made in R v Sherratt [2000] WASCA 112; (2000) 112 A Crim R 177, where Murray J (with whom Pidgeon J agreed) said (at [44]):

Hart v The Queen [2003] WASCA 213

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (212 paragraphs)

Hart v The Queen [2003] WASCA 213 (9 September 2003)

When Should Provocation Be Left to the Jury?

The Application for Leave to Appeal Against Sentence

Parties

Cases Cited (15)