NETTLE J. The appellant was convicted before the Supreme Court of South Australia of the murder by stabbing of Andrew Roger Negre. He appealed to the Court of Criminal Appeal on grounds which included that the trial judge's jury directions concerning the partial defence of provocation were inadequate and resulted in a miscarriage of justice. The appeal was dismissed. Peek J, with whom Kourakis CJ agreed, held that, although the judge's directions were inadequate and in some respects erroneous, they were not productive of a substantial miscarriage of justice. Their Honours considered that the partial defence of provocation should not have been left to the jury and, therefore, that the proviso should be applied. Gray J was not persuaded that the judge's directions were inadequate or erroneous.
The appeal to this Court raises three issues for decision:
(1) Given that the trial judge left provocation to the jury as a possible partial defence to murder, and the Crown did not contend at trial or on appeal to the Court of Criminal Appeal that the judge was in error to do so, was it open to the Court of Criminal Appeal to invoke the proviso?
(2) If it were open, did the Court of Criminal Appeal err in its application of the proviso:
(a) by having regard to academic literature not disclosed to the parties, and therefore which the parties did not have an opportunity to address before judgment was delivered; or
(b) by focusing on the homosexual nature of the suggested provocative conduct in circumstances where a jury might have taken the real "sting" and insult of the deceased's conduct to be something other than or in addition to the homosexual nature of the conduct?
It is not now disputed that the trial judge's directions as to provocation were inadequate and erroneous.
The evidence
The appellant was a 28- or 29-year-old Aboriginal male who lived with his female partner, their child and another couple who paid a minimal rent for food and utilities.
In the early hours of the morning of 1 April 2011, the appellant met the deceased, Mr Negre, at the Hallett Cove Tavern. Mr Negre had been drinking with his female partner until about 11:30pm. At that point he and she quarrelled and, after he declined her request to accompany her home, she departed. He remained at the tavern drinking at first alone and then with the appellant and his companions. At about 2:00am a group which included the appellant, the appellant's partner and Mr Negre left the tavern and travelled by taxi to the appellant's home with the intention of having further drinks.
At around 1:30am to 2:00am, Mr Negre's partner woke and attempted to call him on his mobile telephone. The appellant answered and invited Mr Negre's partner to come over and join them. After she arrived, she was heard yelling and swearing at Mr Negre, asking why he had risked their relationship by going out with people he did not know. Subsequently, she appears to have calmed down. After the appellant showed her around the house, she departed in a taxi leaving Mr Negre behind.
Following some more drinking and socialising, the first of two incidents occurred in the patio area immediately outside the house. According to some of the evidence given at the appellant's trial, Mr Negre made sexually suggestive gestures towards the appellant by sitting down with one leg on either side of him and making a thrusting motion towards him with his hips. Some of those present who gave evidence said that Mr Negre's conduct in behaving in that fashion considerably upset the appellant and also his partner. One witness recalled that the appellant said to Mr Negre: "Don't go doing stuff like that" and "Don't go doing stuff like that because I'm not gay" and "or I'll hit you". Another witness recalled it as being: "Lucky I don't hit you". The same witness recalled the appellant's partner "growling" and stating that the appellant was not gay and the appellant saying to Mr Negre: "Don't do that". A further witness recalled the appellant's partner saying: "Get him out of here". Mr Negre apologised and said it was only a joke.
Later, the group moved inside to the family room. One witness said that Mr Negre appeared to be tired and that the appellant told him that he could sleep on the couch in the spare room. Mr Negre responded to the effect that he did not want to sleep up there by himself and that he wanted the appellant in there with him. Possibly there was then a period of time in which nothing material occurred. Some witnesses heard Mr Negre say to the appellant: "I'll pay you for sex" or "I'll pay you guys for sex". The appellant replied: "What did you say cunt?" to which Mr Negre responded by asking again for the appellant to join him and by offering the appellant several hundred dollars to do so. Immediately after that, the appellant punched Mr Negre and there was then a brief but violent frenzied attack on Mr Negre in which he was repeatedly stabbed with a kitchen knife. At the time of the attack, those present included the appellant, his partner, the appellant's sisters and the couple who lived with the appellant (one of whom was the appellant's co-accused).
Expert forensic evidence established that Mr Negre had sustained multiple penetrating stab wounds, one group of which was in the region of the right upper arm and chest and a second group of which was located over the front of Mr Negre's abdomen. The wounds to the abdomen were associated with two significant injuries to the aorta. One of those wounds completely severed the aorta. The second caused a half-thickness cut to that vessel. The wounds to the aorta resulted in massive blood loss leading to unconsciousness within 20 to 30 seconds and death within two to three minutes.
The conduct of the trial
The Crown's case at trial was that the wounds were inflicted by the appellant with a knife. The appellant's only defence at trial was that it was not he who inflicted the knife wounds. The trial judge took the view, however, that there was evidence capable of sustaining a partial defence of provocation, and so left provocation to the jury. The Crown accepted at trial (and again before this Court) that there was evidence which, if accepted, was capable of satisfying the jury that it was reasonably possible that the appellant lost self-control. The jury nonetheless found the appellant guilty of murder and the appellant's co-accused guilty of the lesser offence of assisting the offender.
The appeal to the Court of Criminal Appeal
The appellant appealed to the Court of Criminal Appeal on grounds which included that the trial judge's directions on provocation were inadequate and resulted in a miscarriage of justice. As already noted, although the majority accepted that the directions were inadequate and productive of a miscarriage of justice, their Honours concluded that there had been no substantial miscarriage of justice and that the proviso should be applied.
The appeal to this Court
The appellant was granted special leave to appeal to this Court on two grounds (in summary): (1) that the Court of Criminal Appeal erred in applying the proviso in circumstances in which the Crown did not contend for its application and did not identify the basis on which it could be applied; and (2) that the Court of Criminal Appeal erred in holding that there was no evidence capable of sustaining a partial defence of provocation and therefore that the trial judge's misdirections on provocation were not productive of a substantial miscarriage of justice.
Invoking the proviso of the Court's own motion
Counsel for the appellant contended with respect to the first ground that, because of the essentially adversarial nature of criminal proceedings, and the consequent importance of the way in which the parties define the issues to which submissions are directed, it was not open to the Court of Criminal Appeal to invoke the proviso unless and until the Crown identified the proviso as a specific issue in the appeal and the manner in which it was contended to apply. In counsel's submission, so much was confirmed by the recent observation of Gageler J in Baini v The Queen that it has always been understood that it is for the respondent and not the appellant to establish to the satisfaction of the court of criminal appeal that the case is within the proviso.
That argument cannot be accepted in the broad terms in which it was stated. Certainly, the Crown carries the onus of establishing that the proviso is applicable and so, unless the court is persuaded that there has been no substantial miscarriage of justice, an appeal must be allowed. But, whether or not the Crown is first to take the point, where a court of criminal appeal makes it clear to an appellant that the court contemplates the proviso might be applicable, identifies with sufficient clarity the basis on which the court envisages the proviso could possibly so apply, and gives to the appellant an appropriate opportunity to advance submissions and other material in opposition to the identified basis of application of the proviso, there is nothing in principle or fairness to prevent the court deciding that there has not been a substantial miscarriage of justice and that the proviso should be applied.
As this Court observed in Weiss v The Queen, the common form proviso was calculated to do away with the Exchequer rule that any departure from trial according to law, regardless of the nature or importance of that departure, would result in an appeal being allowed. By using the words "substantial" and "actually occurred" the legislature gave a court of criminal appeal power to dismiss an appeal if it considers that no substantial miscarriage of justice has actually occurred. But to describe the proviso as a power is in some respects misleading. As was later explained in Baiada Poultry Pty Ltd v The Queen, if a court of criminal appeal considers that no substantial miscarriage of justice has occurred, there is no discretion to allow the appeal and order that a new trial be had. The appeal must be dismissed.
Of course, there are unlikely to be many cases where the Crown does not contend for the application of the proviso (either of its own motion or after being invited to do so by a court of criminal appeal) and yet a court of criminal appeal will be satisfied that there has not been a substantial miscarriage of justice. It might also be in some cases that, because of the way in which the Crown has conducted the appeal up to the point where the court first raises the issue, it would be unfair to require the appellant to meet that possibility. In the former class of case, the court would need to be satisfied that the Crown's reluctance to assert the proviso was not based on some underlying consideration which, if identified, would suggest that the proviso was inapplicable. In the latter class of case, the lack of fairness might mean that it would not be open to consider the application of the proviso in any event.
Apart from cases of that kind, however, the fact that the Crown is not prepared to contend for the application of the proviso is not of itself a sufficient reason for a court of criminal appeal to decline to apply it.
Counsel for the appellant argued that, be that as it may, in this case there was no identification of the basis which the Court of Criminal Appeal had in mind for the possible application of the proviso, with the result that the appellant was not given the opportunity to meet and argue against the possibility.
That submission must be rejected. The matter first arose in the course of argument in the Court of Criminal Appeal in the following exchange between the Chief Justice and counsel for the appellant:
"Kourakis CJ: If provocation shouldn't have been left at all by the trial judge, then it might not matter that there were misdirections about it, and if the Court of Criminal Appeal held that provocation should not have been left, it could also then take the view that the misdirections didn't lead to any miscarriage of justice, and that was the difference on the facts between the majority and the minority in Green. ...
Counsel: In our submission, the first point of principle that we put forward in response to that is this: that as the cases of Van Den Hoek and, indeed, Pollock and Masciantonio all confirmed, the courts must take a very open view; that is, if in doubt, lead provocation, is the effect of all of those judgments. In other words, the failure to leave it when a man has chased the deceased to the other side of the car and stabbed him while he is on the ground is a far cry from a case such as this where the Crown case is that there was a catalyst, he [the appellant] was angry, and it was a ferocious attack over in seconds, and similarly in Pollock. ...
Kourakis CJ: I'm talking about whether it should have been left having regard to the second limb, which requires an objective test to be applied to the gravity of the insult as perceived by the appellant.
...
Kourakis CJ: [Counsel], can you help me? How does the jury go about formulating the conception of the ordinary person here?
Counsel: The ordinary person is simply a person with ordinary powers of self-control.
...
Kourakis CJ: How do they go about working out what that is? Who do they look at if they can't look at themselves? Is there a model?
Counsel: They don't look at anyone. The point is they have to look outside themselves.
Kourakis CJ: To what then?
Counsel: To what are ordinary or minimum powers of self-control. It's not the person, it's the powers of self-control of an ordinary person.
...
Kourakis CJ: Isn't it really a social judgment on when a certain level of insult will excuse murder to manslaughter, don't they make a social judgment about that? Isn't that really what the test is about?
Counsel: No, in my submission, what the test is about is applying the question of the gravity of the provocation from the point of view of the accused and answering whether or not he lost self-control in the way that it's been defined."
Later in argument, Peek J took up the issue again:
"Peek J: I just mention to you that matter of Green you handed up is not particularly helpful on this precise point we are now discussing because of course that turned on a statutory provision which is somewhat different to the common law in this particular regard.
Counsel: Certainly on the ordinary man test the subsection (2)(a) I think it ... spells out I was really referring to the question of the proviso that was raised."
Later still, in the course of the Crown's submissions, there was the following exchange between Gray J and counsel for the Crown:
"Gray J: In determining the proviso, it's my understanding from recent High Court authorities it's not a criteria [sic] of this court to ask what might a reasonable jury do, is it possible the jury might reach a different verdict. The question is, what does this court, as judges, think the result should be.
...
Counsel: The appeal court makes an independent assessment."
As those exchanges demonstrate, the Court of Criminal Appeal did raise the possibility of applying the proviso on the basis that there had not been sufficient evidence of a reasonable possibility of objective provocation to leave to the jury. Counsel for the appellant was given an appropriate opportunity to respond and did in fact respond with a submission that, because there was sufficient evidence of subjective provocation to leave to the jury, the question of objective provocation should also have been left to the jury, in accordance with the decision of the majority of this Court in Green v The Queen.
Counsel for the appellant further contended that, whether or not the trial judge was correct to leave provocation to the jury, the fact was that his Honour had done so and, as was only to be expected, defence counsel's final address was structured accordingly. In counsel's submission, if provocation had not been left to the jury, defence counsel would have had no reason to submit to the jury that, if the appellant were the culprit, there was a reasonable possibility that the appellant was provoked. And, had that been the case, it cannot be gainsaid that the jury might then have been left with a reasonable doubt as to whether the appellant was the culprit. Accordingly, in counsel's submission, this was a case where, because of the way the trial was conducted, the appellant had been denied a chance of acquittal which was fairly open to him and, therefore, the Court of Criminal Appeal was in error in concluding that there had not been a substantial miscarriage of justice.
There is force in that submission. Assuming that provocation should not have been left to the jury, it would be difficult to exclude as a reasonable possibility that by raising it as a partial defence, and defence counsel having to adapt her final address accordingly, the appellant was deprived of a chance of acquittal otherwise fairly open to him. Ultimately, however, the point is moot because, for the reasons which follow, the trial judge was right to leave provocation to the jury.
Application of the proviso - the objective limb of provocation
Peek J began his consideration of the proviso with reference to evidence of the effect of the deceased's sexual advances on the appellant and concluded that there was ample evidence to go to the jury on the issue of whether the appellant was in fact provoked:
"There was ample evidence for the jury's consideration of the subjective limb, namely that the appellant was in fact provoked by the conduct of the deceased and did thereby lose control. This was, in effect, conceded by the prosecutor in submissions in the absence of the jury."
To that point, his Honour's analysis was unexceptionable. Then, however, after referring to a number of authorities concerning the "ordinary person" test, his Honour continued:
"Thus, the objective test is an instrument of policy employed to keep the partial defence of provocation within bounds acceptable to contemporary society.
There is no doubt that in former times, when acts of homosexuality constituted serious crime and men were accustomed to resort to weapons and violence to defend their honour, a killing under the provocation present here would have been seen as giving rise to a verdict of manslaughter rather than murder. However, times have very much changed. As Gibbs J emphasised in Moffa v The Queen:
'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.'
After careful consideration of the authorities, and of some of the extensive academic literature, I have come to the firm view that in 21st century Australia, the evidence taken at its highest in favour of the appellant in the present case was such that no reasonable jury could fail to find that an ordinary man could not have so far lost his self-control as to attack the deceased in the manner that the appellant did. Accordingly, the judge was incorrect in his decision to leave the partial defence of provocation to the jury in this case."
With respect, that was exceptionable.
Peek J did not identify the "extensive academic literature" to which his Honour said he had given careful consideration or reveal how it may have assisted him in reaching his conclusion. The only pointer in that direction is that a little later in his reasons, his Honour said that "my conclusion in no way supports some of the more extreme suggestions made in academic debate since the decision of the High Court in Green v The Queen". One is left to wonder what suggestions his Honour had in mind and which, if any of them, he regarded as not so extreme as to be unacceptable.
For that reason, there is force in the appellant's complaint that the majority appears to have had regard to academic literature not disclosed to the parties and, therefore, which the parties did not have an opportunity to address before judgment was delivered. Leastways, such ambiguity as there may be should be resolved in favour of the appellant.
Were that the only criticism of the majority's reasoning, it might be inconsequential. If it were otherwise clear that the proviso should have been applied, the fact that the appellant's counsel was deprived of an opportunity to dissuade the Court of Criminal Appeal from that view would likely be immaterial. But there are also several other aspects of the majority's reasoning which need to be considered.
First, although, as Peek J quoted with approval, "[t]he success of a provocation defence rests on establishing the accused's act as one which any ordinary person might have done in the circumstances", it is also essential to keep in mind that the degree of provocation to which it must be assumed the ordinary person is subjected is the degree of provocation which was subjectively perceived by the accused. As this Court made plain in Stingel v The Queen:
"[T]he objective test was [not] intended to be applied in a vacuum or without regard to such of the accused's personal characteristics, attributes or history as serve to identify the implications and to affect the gravity of the particular wrongful act or insult."
Secondly, in stating that he took the evidence "at its highest in favour of the appellant", Peek J did not elaborate upon what his Honour meant in the circumstances. The references in the preceding paragraph of his reasons to the historical criminalisation of homosexual acts and men killing "to defend their honour" suggest that he considered the gravamen of the evidence of provocation to be the homosexual nature of the deceased's advances. If that be so, his Honour erred by failing to take into account the full context of the events.
Taking the circumstances disclosed by the evidence as a whole, the provocation as it might have been perceived by the appellant (and thus the force of the provocation to which it must be supposed an ordinary person in the position of the appellant would have been subjected) had a larger dimension than merely an unwanted homosexual advance on a heterosexual man. Other relevant considerations included that the appellant was hosting the deceased as a guest at the appellant's house; had reacted with anguish and loathing when the deceased made his first advance of the evening; had threatened violence if anything of the kind were repeated; and was then insulted in the presence of his partner, sisters and friends with an offer of several hundred dollars to prostitute himself to the deceased's desires. Further, as counsel for the appellant suggested in the course of argument (although no such submission was advanced below), it is not impossible that a jury could reasonably infer that, because the appellant is Aboriginal, he perceived the deceased's conduct towards him to be racially based and for that reason especially insulting.
Thirdly, although the objective test might aptly be described as "an instrument of policy", it is necessary to keep in mind that the policy is to limit the defence of provocation to what a reasonable jury might consider to be the standard of the minimum powers of self-control of an ordinary person. It is not what academics, the press, pressure groups or judges might hope or wish were the minimum powers of self-control of an ordinary person. Under our system of criminal law, it is the jury as representatives of the community who are entrusted to embody and apply community standards. Thus, as Barwick CJ said in Moffa v The Queen, subject to very limited exceptions, whether it should be concluded that an ordinary man would lose self-control "is a question exclusively for the jury, however much a court may be inclined to think that a jury should not do so".
Fourthly, a reasonable jury is by no means a perfect jury. It is 12 ordinary men and women who between them are likely to embody most of the scruples, doubts, insecurities and predilections which are discoverable in one place or another across the broad range of an increasingly pluralist society. Subject to very limited exceptions, it is the immutable right of an accused to be accorded the full benefit of any reasonable doubt which those influences might yield him or her.
Fifthly, whatever may "have very much changed" since Green was decided in 1997, the law remains now as it was then, that the application of the objective test depends on the jury's evaluation of the degree of outrage which the accused might have experienced. As Brennan CJ said in Green, "[i]t [is] not for the Court to determine questions of that kind, especially when reaction to sexual advances are critical to the evaluation".
There were some suggestions in the course of argument before the Court of Criminal Appeal, and there are also suggestions in Peek J's reasons for judgment, that, as a result of this Court's decision in Weiss, the task of a court of criminal appeal in applying the proviso is for the court to make its own independent assessment of the evidence and on that basis determine whether, making due allowance for the natural limitations that exist in the case of an appellate court proceeding wholly or substantially on the record, the appellant was proved beyond reasonable doubt to be guilty of the offence on which the jury returned their verdict.
What was said in Weiss must now be understood in light of what has since been observed in Baini (albeit in the context of the application of s 276 of the Criminal Procedure Act 2009 (Vic)) and in Pollock v The Queen (in relation to the common form proviso). That is to say, where there has been a miscarriage of justice the consequence of an error in the conduct of a criminal trial, a court of criminal appeal cannot fail to be satisfied that there has been a substantial miscarriage of justice unless it determines that, in the absence of the error, it would not have been open to the jury to entertain a reasonable doubt as to guilt. "Nothing short of satisfaction beyond reasonable doubt will do". A court of criminal appeal "can only be satisfied, on the record of the trial, that an error of the kind which occurred in this case did not amount to a 'substantial miscarriage of justice' if the … court concludes from its review of the record that conviction was inevitable". And by "inevitable" what is meant is that, assuming the error had not been made, the result was bound not to have been any different for the jury if acting reasonably on the evidence properly before them and applying the correct onus and standard of proof. Unless it is so possible to conclude that the accused has not been deprived "of a chance fairly open to him of being acquitted of murder", there is no room for the proviso.
Finally, "[t]here was ample evidence for the jury's consideration of the subjective limb, namely, that the appellant was in fact provoked by the conduct of the deceased and did thereby lose control". The jury's assessment of that evidence - and so of the extent to which the appellant was in fact provoked by the conduct of the deceased - was critical to the evaluation of how an ordinary person might have reacted to that degree of provocation and, therefore, critical to satisfaction of the objective limb. In those circumstances, it is surely not open to say that, on the view of the evidence most favourable to the appellant, the jury could not have been left with a reasonable doubt as to whether an ordinary person subjected to that degree of provocation could not have so much lost self-control as to form the intent to kill or inflict grievous bodily harm and before regaining self-control gone on and given effect to that intent in the manner in which the appellant did.
Conclusion
For these reasons, the trial judge was right to leave provocation to the jury. It was not open to the majority of the Court of Criminal Appeal to be satisfied that the inadequacy of the judge's directions on provocation did not deprive the appellant of a chance which was fairly open to him of a verdict of guilty of manslaughter. The majority of the Court of Criminal Appeal was wrong to conclude that the inadequacy of the directions was not productive of a substantial miscarriage of justice.
It follows that the appeal should be allowed. The orders of the Court of Criminal Appeal should be set aside, and in their place it should be ordered that the appeal to that Court be allowed, the conviction quashed and a new trial be had.