R v Abebe; DPP v Abebe [2000] VSCA 148

Court of Appeal (Vic)|2000-08-18|Before: CHARLES and CALLAWAY, JJ.A. and COLDREY, A.J.A.

Criminal law - Murder - Provocation - Wrongful act or insult such as to deprive ordinary person of self-control - Role of ordinary person test - Accused an Ethiopian - Personal characteristics including ethnicity relevant to objective, as well as subjective, test - Choice between "could" or "might" and "would" - Whether issue of provocation open on evidence - Acts of provocation by person other than victim - Mistaken belief that victim has provided provocation - Crimes Act 1958 s.568(1).

A plea was heard on 24 May, and on 1 June the judge sentenced the applicant to 12 years' imprisonment on the count of murder, and seven days on the count of theft. The total effective sentence was 12 years' imprisonment and a non-parole period of nine-and-a-half years was fixed.

The applicant now seeks leave to appeal against conviction on the grounds that the trial judge erred in that he misdirected the jury -

(2) in relation to the "ordinary man test" after the jury asked a question.

There is also before this Court an appeal by the Director of Public Prosecutions under s.567A of the Crimes Act 1958 claiming that the sentence imposed in respect of count 3 is manifestly inadequate.

On 26 April 2000 this Court allowed the applicant's appeal, quashed the conviction for murder and ordered that a new trial be had on this charge. It was therefore unnecessary to consider the Crown's appeal against sentence under s.567A. The following are my reasons for joining in the making of these orders.

The Crown case was as follows. The applicant, who was born in Ethiopia, migrated to Australia from Canada in 1993, having lived there for some four years, and previously in Japan for 14 years. In Australia he met Gidey Hadgu, who had been born in Eritrea and had migrated to Australia in 1990 with her son, Mussie Debassay, born in 1978, and two daughters, Samrawet Tuku, born in 1982, and Muna Mohamed, who was born in 1986. The applicant and Gidey Hadgu married in Footscray in May 1994 and lived together in Flemington with Gidey Hadgu's two daughters until mid-1996 when the applicant and his wife separated. After the separation the applicant went to Sydney for about two months, and they maintained contact by telephone. Gidey Hadgu's evidence was that after the separation her relationship with the applicant was "like brother and sister", there being no prospect of them resuming a marital relationship. While the applicant was in Sydney, Gidey Hadgu was preparing to open the African Mesob Café/Restaurant in leased premises at 227 Barkly Street, Footscray. Upon his return to Melbourne the applicant stayed with Gidey Hadgu for a short period before finding alternative accommodation. He maintained contact with her and assisted her in setting up and running the restaurant. He also drove a taxi.

The applicant, who gave evidence during the trial, said that his marriage to Gidey Hadgu was at first happy, but that Kassa Wube (the deceased) became a regular visitor to their home and by 1995 the marriage was no longer happy because his wife had become close to Kassa Wube. The latter would call in after he had finished work and would also call between his work breaks. The applicant became stressed at the relationship between his wife and Kassa Wube, whom he often found in the kitchen drinking coffee with Gidey Hadgu and talking very closely with her. His evidence was that in the Ethiopian community, it was not acceptable for a married woman to sit with a man other than her husband and drink coffee without her husband being present. The applicant said that there were times when his wife would go off without letting him know, and if he asked her where she was going she would not tell him, asking him "Why you care? Why you ask me about where I am going?"

Evidence was given by Gidey Hadgu's brother, Abraham Hadgu, of assisting his sister in obtaining finance for and setting up the restaurant. He said that while they were carrying out the renovation works, the applicant came to the premises and offered to help. On one occasion when the deceased came to the premises, the applicant snubbed the deceased by not bowing and greeting him in the usual Ethiopian manner. Abraham Hadgu asked the applicant whether he had quarrelled with the deceased, to which the applicant replied that there was nothing of that but that they were not very close. It was apparent both to Abraham and Gidey Hadgu that the applicant and Kassa Wube did not like each other and Abraham Hadgu gave evidence of telling his sister that she had better sort out the feeling between them. Gidey Hadgu replied that whether or not the applicant was jealous, that was his problem as far as she was concerned. She said that she was trying to run a restaurant, that there was no marital relationship between herself and the applicant and therefore the applicant should not feel bad about it.

On 2 January 1997 at around 9 a.m., the applicant with Gidey Hadgu and her two daughters arrived at the restaurant by car. The applicant then drove off to purchase meat. During the morning while the applicant was out, Kassa Wube arrived at the restaurant to wish everyone a happy new year. He joined the women in the kitchen, sat down at a table and drank coffee while chatting with the women. At about 12.30 p.m. the applicant returned with a lamb which he had collected and came to the outside rear door of the kitchen next to the sink and opposite the refrigerator and freezer. Gidey Hadgu was preparing salad in the rear section of the kitchen. Kassa Wube was seated in the kitchen reading a newspaper. After entering by the rear door the applicant handed over the meat and told Gidey Hadgu that he was hungry and needed something to eat. She told the applicant that she would feed him once she had finished the salad. She then went to the sink to wash potatoes and left the knife she had been using to cut lettuce on the table. When she turned back from the sink she saw that the applicant was holding the knife. Gidey Hadgu told the applicant to put the knife down but the applicant said repeatedly in Amharic "I'm going to kill you, I'm going to kill you". He then plunged the knife towards Gidey Hadgu's lower back. She brought her arm between the knife and her body and the knife plunged through her left forearm. She immediately fled through the back door and down the side passage into the backyard of the premises.

The applicant then came forward rapidly with the knife in his hand towards Kassa Wube and stabbed him several times in the chest. Shortly afterwards the applicant went out the kitchen door carrying the knife, and another Ethiopian, Yilma Bekele, saw the applicant leave the kitchen carrying the knife. Bekele stopped the applicant and spoke to him in Amharic. The applicant said he was upset and Bekele succeeded in taking the knife away from him. Kassa Wube then also came out into the backyard assisted by Samrawet Tuku, and collapsed to the ground. He died later at the Western General Hospital.

At the trial, it was not in issue that the applicant killed the deceased by stabbing him three times in the chest. His only defence to count 3 was that he had acted under provocation and had lost self control, and accordingly that a verdict of manslaughter should be returned. The applicant said in evidence that after he spoke to Gidey Hadgu about the lamb he had brought, he saw Kassa Wube seated by the door. He said he asked Gidey Hadgu why the deceased was sitting there, to which she replied, "Why should you care when you were sitting there, because he is my boyfriend, why should you care?" The applicant said she also said "We are going to live together, be wife and husband. You don't care about us." The applicant said that Amharic (the language in which they were speaking) does not use the equivalent of the word "boyfriend" to connote a lover and that she meant "he is lover or have affair." He said that while she was telling him these things, the deceased looked at him in an arrogant or condescending manner and smiled. The applicant said that he felt very depressed or stressed.

After the evidence was completed, the prosecutor conceded that the provocative conduct relied on by the applicant was capable of raising the defence of provocation, and the judge ruled that provocation was open on the evidence and accordingly put this defence to the jury.

It is notoriously difficult to charge a jury in relation to the defence of provocation. After the present trial was completed, this Court in R. v. Thorpe (No. 2)[1], highlighted in four propositions[2], some matters of recurring importance in relation to provocation, and how the issues involved might best be explained to a jury. I shall quote some parts only from these pages, (the whole passage - and the authorities upon which it is based - is too long to permit quotation in full) but what follows should be read with the whole of the judgment in Thorpe (No. 2) clearly in mind; see also Warren Ian Anderson[3]; R. v. Tracey Jane Curzon[4].

In Thorpe (No. 2), Winneke, P., Callaway and Chernov, JJ.A. stressed[5] that the jury should be told that it is always difficult to give directions about provocation in a way which completely avoids any suggestion that the accused has to prove something, any such suggestion being completely wrong. Their Honours then stated that -

"2. The objective test is whether the provocative words or conduct, measured in gravity by reference to the personal situation of the accused, could have caused an ordinary person to lose self-control to the extent that the accused did .... In directing a jury, it is acceptable to use 'might' rather than 'could', preferably saying that 'might' in this context means the same thing as 'could'. Experience shows that there is less chance of the judge's accidentally transposing 'would' and 'might' or of the jury's mishearing what the judge says. The corollary of both 'could' and 'might' is the Crown's establishing that an ordinary person 'would not' have lost self-control ... ...

4. The jury may be told, for example, as part of a charge on provocation in an appropriate case, that they must find the accused not guilty of murder if there is a reasonable possibility -

(a) that provocative words or conduct caused him to lose self-control and kill the deceased in the heat of passion; and also

(b) that a person with ordinary powers of self-control (of the same age as the accused where age may be relevant) might, in the same circumstances, have lost self-control to the point of forming an intention to kill or do really serious physical injury and carrying that intention out,

and that the gravity of the provocation is to be assessed having regard to the personal characteristics of the accused when they are considering both those questions. Although there is more than one way of explaining provocation, just like self-defence or duress, the reasonable possibility method, introduced by a direction that the Crown must exclude provocation beyond reasonable doubt, is usually to be preferred ..." (Emphasis added.)

Of particular significance in the circumstances of this case was the fact that the applicant, his wife and the deceased were all Ethiopian or Eritrean. The applicant had said in evidence that he had heard from other members of the Ethiopian community of rumours circulating about the relationship between the deceased and Gidey Hadgu, his evidence in this respect being supported by three other members of the Ethiopian community. He had become very upset, stressed and shamed on learning of the rumours of their relationship. He said he had given untruthful answers to the police in his record of interview because he was too ashamed to tell the police that his wife was having an affair with another man. I have already mentioned his evidence that it was not acceptable in the Ethiopian community for a married woman to sit with another man and drink coffee without her husband being present. It was in this context that, immediately before his attack on Gidey Hadgu and Kassa Wube, Gidey Hadgu had, according to the applicant, said that Kassa Wube was her lover, that they were going to live together as wife and husband and that Kassa Wube had smiled at him in a humiliating manner.

In R. v. Masciantonio[6], Brennan, Deane, Dawson and Gaudron, JJ. considered, in the application of the objective test of provocation, the extent to which personal characteristics of the accused might be relevant. Their Honours said[7] -

"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 into 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."

The test thus posed depends upon separating the gravity of the allegedly provocative conduct from the powers of self-control of the ordinary person. It is not an easy distinction for a jury to understand. Indeed, McHugh, J. in his dissent in Masciantonio, said[8] that -

"Unless the ethnic or cultural background of the accused is attributed to the ordinary person, the objective test of self-control results in inequality before the law. 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 does not reflect the values of those minorities."

The result of these considerations is that, in considering the gravity of the allegedly provocative conduct, the applicant was entitled to have brought into consideration his ethnicity, that is, the fact that he and all the others involved were Ethiopian or Eritrean and, to the extent that the jury accepted it, the evidence of what was occurring between Gidey Hadgu and the deceased, of the rumours in the Ethiopian community as to their relationship, and of the applicant's shame and humiliation by reference to Ethiopian cultural values and mores.

During the addresses by counsel, after the evidence had concluded, a document prepared by the Crown dealing with the legal issues involved in provocation was made available to the jury. The document (I shall call it the "chart") was in the following form -

"The Crown must prove that the killing was unprovoked. There are two elements to provocation; (1) That the accused killed the deceased during a sudden and temporary loss of control which had been brought about by provocative acts and/or words of the deceased. The accused must have acted whilst deprived of self-control and before he had the opportunity to regain his composure. (2) That the provocation might have caused an ordinary person in the position of the accused to have lost control and acted as the accused did. In the present case the provocative words on the part of Gidey Hadgu are to be attributed to the deceased if the two victims were acting in concert, or aiding and abetting, or if the accused man believed they were. The Crown must satisfy you either that the accused was not provoked or that an ordinary person would not have acted as he did. When considering whether the accused lost control you are entitled to take into account his age, sex, race, ethnicity, physical features, personal attributes, personal relationships or past history. The ordinary person is one of the same sex and of the same maturity as the accused. If the Crown fails to disprove either (1) or (2) above, what would otherwise be murder is reduced to manslaughter."

The chart was, as I have said, prepared by the Crown. It was given to the jury with the consent of defence counsel (who said he was "happy" for the jury to have it made available to them). The judge made repeated reference to the chart in the charge.

Although no objection was taken to the contents of the chart, it was, in my view, capable of misleading the jury in at least the following ways -

(a) the third paragraph introduced the concepts of "acting in concert" or "aiding and abetting" which in the circumstances of this case could have served only to confuse the jury;

(b) the third-last paragraph, which referred to the accused's personal characteristics including ethnicity, told the jury that they might consider these characteristics only in relation to the subjective test, not in considering the gravity of the conduct in relation to the objective test.

The judge on several occasions in the charge dealt at length with the issue of provocation. His Honour was at pains to tell the jury that the onus remained on the Crown to establish that the killing was unprovoked and that the defence did not have to prove anything. His Honour, with respect, on numerous occasions correctly used the words "could" and "might" in relation to the objective test in the manner approved in R. v. Stingel[9] and Masciantonio[10], and as afterwards discussed in Thorpe (No. 2). On one occasion his Honour did say to the jury that the past history of the applicant's relations with his wife, and the deceased, and the position he found himself in in the Ethiopian community could be taken into account in assessing "how the ordinary person would have reacted to the particular circumstances in which he found himself on the early afternoon of 2 January." This was, with respect, incorrect, but a single slip of that kind would not by itself have been sufficient to cause a miscarriage of justice. Near the end of the charge, his Honour said to the jury that the Crown's position on the issue of provocation was, first, that the applicant was not in fact provoked and, second, "that no reasonable person would have been provoked in those circumstances." The reference to the "reasonable" person was, if I may say so, unfortunate, the correct test being that of the "ordinary" rather than the reasonable person: as to which see Stingel[11]; R. v. Enright[12]. I mention the matter, however, on this occasion to explain what may have followed.

Shortly after the reference to the "reasonable person", the judge's charge concluded, and the prosecutor took exception to parts of it, stating that in relation to the second aspect of provocation, his Honour had on occasions used the word "would" rather than the correct word "could". To this the judge responded that he had used the word "might" consistently in relation to the second aspect of the test, having been conscious of this very problem, but when speaking of the negative onus borne by the Crown, had used the word "would". His Honour refused to redirect the jury, in particular because the jury had the chart in front of them, the word "might" being used there and the jury being in his Honour's view sufficiently equipped to be able to grapple appropriately with the relevant concept. I should add that defence counsel did not support the exception.

Shortly afterwards the jury asked the following question: "Does the reasonable man test apply to the standards that would be applied to the wider community or can it be limited to the Ethiopian community in Australia?"

The judge's answer to this question, after hearing argument from counsel, was framed substantially by reference to the chart, and to what his Honour told the jury would be a gloss on the chart. The judge dealt first with the subjective test, as to which his Honour said that all relevant circumstances, including race and ethnicity and all the other characteristics the jury had heard in evidence relevant to the applicant could be taken into account. His Honour then explained the objective test and it is this aspect of his Honour's directions to the jury that the applicant principally challenged in this Court. The judge told the jury that the appropriate standard was that of the hypothetical ordinary person, the "Australian living in the Australian community". His Honour then continued -

"The Australian community ... has a multi-cultural component. To that extent, and to that extent only, multiculturalism has some small relevance. Can I illustrate the difference between our society and some other. The fact is that Ireland happens to have a population which is very ethnically homogeneous. There are very few people of non-Irish ethnicity living in Ireland. The proportion of non-Anglo-Saxons living in Australia is far higher. That is a fact. When you look at the ordinary person, you are looking at the ordinary person in the Australian community, not in the Irish community, not in the South African community, not in the Cambodian community, not in any other community but in ours. So there is very little relevance to the concept of multiculturalism, except insofar as you as representatives of our community accept that we are to that extent peculiarly Australian. Now, the ordinary person, as your sheet tells you, is one of the same sex and the same maturity as the accused, in this case a male of the same maturity as Mr Abebe. It is against that objective standard that you look at the ordinary person and you are asked whether the ordinary person might have been caused by the provocative act to have lost control and act as Mr Abebe acted? Now, there is one - again, I hope relatively simple - gloss to that. The ordinary person is the person who we are now looking at and is the person who we are asking might - we are asking now whether the ordinary person might have been provoked. The degree of provocation is of course important in this regard. Some things we would accept as not provocative at all for the ordinary person. If you are interested in sport and the umpire gives a decision against you, and you are angered by that, you can't go along and kill the umpire and say, 'I am not guilty of murder because I was provoked'. So you can see from that example that the degree of provocation is something that necessarily is relevant. The degree of provocation may vary; that is obvious too. But the degree of provocation may vary according to whether the person provoked has particular characteristics. If the person provoked is, for example, someone with a particular physical defect and that defect is made the object of ridicule by the person who is later killed, the degree of provocation is the greater because of the person provoked, his particular characteristics as someone with a physical defect. You take the degree of provocation that is generated by that characteristic or those characteristics and you ask yourself, how would the ordinary person have reacted to that degree of provocation? Here we introduce, as you can appreciate, an element of mercy. The objective person might not react - sorry, the ordinary person without the physical characteristic about which we are speaking might not react in the same way as the person with that physical defect. So if the insult is particularly directed to that physical defect, the degree of provocation becomes the greater, and you ask yourself, when faced with that degree of provocation, how would the ordinary person react? I appreciate it is not all that easy to grasp all these concepts, but if you ask yourself, what was the degree of provocation, and how would the ordinary person have reacted to that, then I think you shouldn't go wrong. I think, as I say, bearing those glosses in mind, keep referring to this sheet, it ought not to be too difficult to get around what are admittedly difficult concepts."

The argument on both grounds of the application made by Mrs. Morrish, who appeared for the applicant in this Court, was that this passage seriously misled the jury. The submission was, first, that on three occasions the jury were asked, in applying the objective test, to consider the question how would (not might) the ordinary person have reacted to that degree of provocation. Secondly it was submitted that the jury's question showed that the wrong test, of the reasonable, rather than the ordinary person, was being considered by them. Thirdly, Mrs. Morrish argued that in so far as the judge mentioned personal characteristics at all in relation to assessing the gravity of the conduct for the purposes of the objective test, his Honour referred to physical defects or physical characteristics and not to the applicant's ethnicity. In doing so, it was submitted, attention was directed away from the critical element of the applicant's case on provocation. Finally on this aspect, Mrs. Morrish relied on the repeated emphasis given by the judge to the chart, for example in the first and last sentences of the passage from the charge quoted above.

Mr. McArdle, who appeared for the Crown in this Court, informed us that the chart was a copy of a document which had been used in an earlier trial, and was (he argued) entirely orthodox. It had been given to the jury with the consent of defence counsel. As to the expressions used by the judge in the course of the charge, Mr. McArdle accepted that some parts might have been better expressed, but submitted that this was not sufficient to cause a miscarriage and reminded us that exceptions had not been provoked from defence counsel by anything said by his Honour. He laid emphasis on the fact that the jury had had the chart in front of them for their deliberations. In relation to ground 1 of the application, his submission was that at the end of the day the errors were not sufficient to undermine the whole of the edifice built up during the charge.

As to ground 2, Mr. McArdle's submission was that the fact that the jury used the expression "reasonable man" rather than "ordinary person" in their question was of no consequence. He submitted that the judge had correctly directed the jury that the "ordinary person" was not to be limited to the Ethiopian community in Australia and laid emphasis on the fact that no request had been made to redirect or remind the jury that the expression used in the charge as a standard was that of an ordinary person. He said that the judge had mentioned multiculturalism in the charge and relied heavily on the fact that again no exception had been taken to the judge's answer to the jury's question.

I should mention at this point that Mr. McArdle also submitted if error was demonstrated under either ground, the application should be dismissed pursuant to the proviso to s.568(1) of the Crimes Act 1958. Mr. McArdle's submission was that the applicant's evidence of provocation, judged against a background of marital discord, was limited to the comments made by his wife (previously quoted) and the fact that the applicant's reaction to these events could not be characterized as that of a normal person. His submission was, in effect, that provocation should not in this case have been left to the jury, notwithstanding that the prosecutor conceded during the trial that it should be left to the jury. Mr. McArdle placed reliance on R. v. Tuncay[13]. In Tuncay, the accused was charged with the murder of his wife, both being of Turkish background. The wife told the accused that she intended to leave him, taking the children with her, because of his drinking, and that she would look for a man who adhered to the religious beliefs of Islam. The accused said that if she left him, he would commit suicide. The wife said that if he did that, she would be free of him. The accused then killed his wife in a savage and brutal attack. The judge left the defence of provocation to the jury, but the accused was convicted of murder. On appeal, this Court[14] unanimously concluded that the issue of provocation should not have been left to the jury, on the ground that no reasonable jury could have concluded that any incident of the behaviour by words or conduct of the deceased could have caused an ordinary person to form an intention to inflict really serious bodily harm or death.

In my view the evidence of provocation in the present case relied on for the applicant went beyond the evidence present in Tuncay, which was characterized[15] as a case involving "mere words not of a violently provocative character"[16]. In the present case the words themselves arguably included a confession of adultery with the deceased who, if the jury accepted the evidence of the defence witnesses, was seated in a compromising position with the applicant's wife and whose behaviour was humiliating the applicant. The gravity of the allegedly provocative conduct was a matter for the jury, to be determined by reference to relevant characteristics of the accused, including his ethnicity. For this purpose it would have been essential for the jury to decide what weight should be given to the evidence of various witnesses as to what was not acceptable according to Ethiopian community values. Having assessed the gravity of the provocation in this way, it was 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 such a manner[17].

It is convenient to deal with both grounds of the application together. During the charge the judge when referring to the chart described the elements of provocation both in terms of "positives" and "negatives". I have some sympathy with the submission of Mrs. Morrish in this context that, since the Crown bore the onus of negativing provocation, any discussion in terms of "positives" carried with it the possibility of confusing the jury and even leading them to the view that in some respects the applicant carried the onus of proof. Given the frequency with which the words "could", "might" and "would" were used in the relevant parts of the charge, it would, with respect, have been helpful if the jury had been told that if one undertakes to disprove that something "might" or "could" have happened, one undertakes to prove that it "would not" have happened.

I accept Mrs. Morrish's submission that in the passage from the charge quoted above the jury was, on three occasions, wrongly directed as to the nature of the objective test. The jury must have retired to continue their deliberations with the test thus framed ringing in their ears.

A more serious difficulty is, however, raised by the answer to the jury's question. That question shows that the jury were concerned as to precisely how they were entitled to use the applicant's race and ethnic values. It was, with respect, unfortunate that in the passage quoted above his Honour gave only the example of a physical defect as one of the "particular characteristics" which may cause the degree of provocation to vary. In a case in which the applicant's ethnicity was crucial to the jury's assessment of the gravity of the alleged provocation, the answer given to the jury question was, I think, likely to deflect the jury's attention away from his ethnicity, and the tendency for the answer to have this effect was increased by the repeated references to the chart, which was itself positively misleading because the reference in it to the ethnicity (and other personal characteristics) of the accused was made only in relation to the subjective test of provocation. A correct explanation of the relevance of Ethiopian cultural and ethnic values was central to the applicant's defence, since the allegedly provocative conduct might have seemed to the jury of much greater gravity to an Ethiopian than to a person of European descent.

It follows therefore that in my view ground 1 of the application has been made out, unless either the failure to take exception, or the operation of the proviso, prevents the application from succeeding.

The Crown, as I have said, conceded that provocation should, on all the evidence, be left to the jury, and the judge so ruled. For the reasons I have already given, the Crown's concession was not obviously erroneous. The proviso could only apply in my view in the present case if there was no arguable case to go to the jury and consequently an erroneous direction on provocation could not have deprived the applicant of a real chance of acquittal. If, on the other hand, there was an arguable case of provocation, it was for the jury to decide whether they were left with a reasonable doubt, the onus of course being on the Crown.

This was a single issue case, the only issue being whether the applicant was guilty of murder or manslaughter, having regard to the allegedly provocative conduct of the deceased and Gidey Hadgu. In my view the matters to which I have referred, taken together, amount to misdirection which was fundamental in nature and lead inevitably to the conclusion that the applicant lost a real chance of acquittal on the charge of murder. It follows that neither the failure to take exception, nor the operation of the proviso, can save the conviction.

The Court having decided that the appeal should be allowed for the reasons already given in this judgment, an issue then arose as to the appropriateness on any re-trial of the words used in the third paragraph of the chart referring to the attribution to the deceased of the provocative words spoken by Gidey Hadgu. The chart required that the two victims be acting in concert, or aiding and abetting, or that the accused man at least believed that they were. The Court invited counsel for the parties to make further submissions on this question and we have since been supplied with most helpful submissions by counsel both for the applicant and the Crown. The question having been raised by the Court, Mr McArdle indicated that the Crown would be grateful for any guidance the Court might give concerning this issue upon a re-trial, and in particular as to any future directions in terms of the relevant paragraph of the chart.

I am reluctant to travel far down this path. The facts in evidence at any re-trial will differ, and may well differ significantly, from what appears in the transcript of the first trial. The law dealing with the defence of provocation is highly complex. The contents of any chart made available to a future jury must be very much a matter for the judge and counsel to consider in the light of the evidence given at that trial. The following comments are obiter dicta made with considerable hesitation.

The words used in the chart are plainly based on the traditional view that provocation must issue from the victim, a proposition unambiguously asserted in R. v. Simpson[18]. The words themselves appear to have been drawn from what was said by Brooking, J. in R. v. Kenney[19]. There the Crown case was that the accused had been involved in a fist-fight with L at a party. S successfully separated the accused and L. The accused then fetched a rifle from his home and returned to the party where he shot and killed both L and S. The question arose whether the jury must have regard to possible acts of provocation on the part of one victim in considering whether the Crown had shown the killing of the other victim to be unprovoked. Brooking, J. observed[20] that there was a good deal of authority for the view that the provocative act must be by the victim; but later said, after a detailed examination of the authorities that -

"A victim is responsible for provocation if he either does the provocative act himself or helps or encourages someone else to do it or acts in concert with someone else who does it."

The terms used invoked the analogy of principles governing criminal responsibility for the act of another, and the judge later referred also to the concept of aiding and abetting.[21]

Both counsel in their written submissions argued that the chart ought not to make reference to concepts such as acting in concert or aiding and abetting. Mr McArdle submitted that these expressions are generally used to attribute responsibility for criminal behaviour, whereas provocation is not usually or necessarily criminal behaviour. Mrs Morrish supported this submission arguing that these expressions are a lawyer's shorthand for describing ways that a person who participates in a crime in a certain manner is as guilty as the principal offender. Mrs Morrish argued that these terms would not necessarily be understood by a jury and that it would be potentially misleading and unhelpful to use them.

A different approach was taken in Gardner[22], where the accused was charged with the murder of his estranged wife and a male, Shears, who was sharing the wife's house, but whose body was found naked in a room adjacent to that of the wife. The accused in unsworn evidence said that the wife had acted in a way which the Crown accepted could amount to provocation but, since Shears was in a different room, the concept referred to by Brooking, J. in Kenney could not be relied upon. After discussing what had been said in Kenney, O'Bryan, J., with whom Gray and Beach, JJ. agreed, said[23] -

"The fact situation in the present case was of a different kind. For instance, it could not be argued on behalf of the accused that Shears helped or encouraged Marino's provocative acts. Nor could it be argued that Shears acted in concert with Marino when she performed the provocative acts. Nevertheless, in my opinion, the rule that provocation must emanate from the victim should not deny to the applicant a defence to the murder of Shears based on provocation simply because Shears, the victim, neither did nor encouraged any provocative act. Had Shears been found by the accused in the same bed as Marino, Marino's taunting words might have caused a sudden and temporary loss of self-control in the accused due to anger or resentment and brought about the deaths of both Marino and Shears. The circumstances that Marino's provocative words implicated Shears in a sexual orgy and Shears' proximity to Marino's bedroom, clearly were matters the jury were entitled to take into account, in my opinion, in considering the defence of provocation in relation to the killing of Shears. There was a sufficient nexus between Marino's provocative words and the death of Shears by the proximity of Shears in a bed nearby."

O'Bryan, J. said later that the use by the trial judge of a passage extracted from the charge in Kenney was totally unsuited to the facts of the case and that to introduce considerations of "mistaken belief" or "acting in concert" at the final stage of the summing up without explanation was calculated to confuse the jury.

The use of the word "proximity" (which, in this context, suggests nothing more than propinquity) as a justification for implicating a third party in the conduct of the provoker is open to the objection that it might be said to put at risk the lives of innocent bystanders. Mr McArdle argued that the expression was redolent of the civil law and more particularly of negligence. Proximity is, he put it, a vague notion with, in the present context, potentially mischievous consequences. If proximity were the sole criterion required to enable provocation to be raised as a defence, where the accused had attacked a person other than the one guilty of provocative conduct, the general deterrence provided by criminal sanctions might be thought to be seriously undermined.

Mrs Morrish submitted to us that at any re-trial of the applicant the case of provocation would be made as follows. Immediately prior to the attacks on Gidey Hadgu and Kassa Wube, the applicant and his wife had argued. The argument was sparked by the unexpected presence of Kassa Wube at Gidey Hadgu's restaurant. During the course of this argument Gidey Hadgu admitted that Kassa Wube was her lover and asserted that they planned to live together as husband and wife. She told the applicant that he (the applicant) did not care about "us". According to the applicant it was "When she talked to me like that Kassa (Wube) smile and he look at me which is in uncommon sense. He look at me, yes, he look at me that I am under him and he smile at me ... non-equal of him but under of him, like a servant of that house and he smiled on him". Mrs Morrish put it that the conduct of both Gidey Hadgu and Kassa Wube was relevant to the question of provocation because they were inextricably linked. Kassa Wube's conduct (the implication in the manner and timing of his smile) when viewed in isolation was innocuous. The significance of that conduct only made sense in its full context. Placed in context, Kassa Wube's conduct of itself was provocative. He did not deny that he was having an affair with Gidey Hadgu. On the contrary he smiled in an arrogant way "looking down on" the applicant. The smile was provocative in that it carried various possible implications, such as that it was confirmatory of the truth of the wife's revelation that they were lovers. Kassa Wube was savouring the moment, enjoying seeing Gidey Hadgu and the applicant arguing over him. He was pleased with and agreed with Gidey Hadgu's description of their adulterous relationship and her accusations of the applicant's indifference towards "us". He was treating the applicant's status as Gidey Hadgu's husband with contempt and was humiliating the applicant. Furthermore, in adopting Gidey Hadgu's conduct, Kassa Wube added a taunt; the applicant had lost status in his own marriage, which status had been assumed by Kassa Wube, and it was as if the intruder was treating the master of the house as a servant. Accordingly, so the argument ran, it was the combination of the actions of his wife and Kassa Wube which caused the applicant's loss of self-control. Their actions were closely connected in time and space and were set against a backdrop of matrimonial disharmony, the applicant for some time having been concerned at the nature of the relationship between his wife and Kassa Wube.

As Brinsden, J. said in Roche[24], from time immemorial it has been held that a husband discovering his wife in the act of adultery may be found to have acted under provocation, a proposition justified by Sir William Blackstone[25] on the ground that "There could not be a greater provocation". The rule is now firmly established and may, of course, be applied in favour of either husband or wife; see Holmes v. DPP[26] per Viscount Simon. In Holmes Viscount Simon said that a sudden confession of adultery could never constitute provocation of a sort which might reduce murder to manslaughter, save in circumstances of a most extreme and exceptional case. Such a case was Moffa v. The Queen[27], where the accused's wife had threatened to leave him after their married life had become unhappy. On the morning of the killing, the wife rejected the accused's advances in a scornful and abusive way; contemptuously denied his continuing affection; said that their marriage had ended; and had boasted of promiscuous sexual conduct with men in the neighbourhood. The deceased was said to have called the accused "a black bastard", had thrown a telephone at him, and had then thrown at him photographs of herself naked. The accused claimed he then lost self-control, went outside the house and picked up a piece of iron pipe, with which he later killed his wife. Mason, J. said[28]-

"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 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."

In Fricker[29], the deceased and the accused shared the affections of M. The two males were hostile and various incidents had taken place between them. On the night in question M and the appellant had an argument which culminated in M rejecting the appellant and returning to the house she shared with the deceased and another. The deceased then made sexual advances to M observed by the appellant who was lurking outside and listening at a window. There was a fight during which the appellant stabbed the deceased with fatal results. The defence relied on self-defence, alternatively provocation. King, C.J. said[30] that -

"I am prepared to accept that a victim may provoke through the agency of another or by acting in concert with the person who actually performs the provocative actions; see Kenney .... I am unable however to see anything in the present case suggestive of joint provocation. [M] was not married to the appellant. She was under no legal obligation to him. Nor had they cohabited in a long-term situation which could be regarded as de facto marriage. They were merely lovers who had lived together for periods. What occurred on the night of the killing was no more than a lovers' quarrel."

The South Australian Court of Criminal Appeal held that while it is possible for there to be provocation in circumstances in which the victim may provoke the accused through the agency of a third party, there was no warrant in this case for any argument that the conduct of M contributed toward or occasioned provocation.

In Hutton[31], the appellant had found his wife in a sexually compromising situation with a male friend and she then laughed scornfully at him. The appellant shot the woman and the friend. The Tasmanian Court of Criminal Appeal held that provocation should have been left on both counts of murder to the jury, Green, C.J. saying[32] that -

"The fact that the person killed was a stranger who was not a party to the conduct constituting the provocation would be material to the determination of the question of whether or not an act or insult was capable of constituting provocation. In this case however Reid was a participant in the episode which gave rise to the insult and it was his presence and actions which gave colour and significance to that insult." (Emphasis added.)

Then in Tumanako[33] the Court of Criminal Appeal of New South Wales considered a situation in which the appellant had killed the deceased (his former girlfriend) in a fit of jealous rage, in the presence of a man with whom she had formed a relationship over a three-month period. Badgery-Parker, J. (with whom Gleeson, C.J. and Clarke, J.A. agreed) said[34] that -

"It is proper that the words or conduct of the deceased said to be capable of amounting to provocative conduct should be considered not in isolation but in the light of the history of the relationship between them because particular acts or words which, considered separately, could not amount to provocation may, in combination or cumulatively, be enough to cause the appellant to lose his self-control in fact and may also be capable of causing an ordinary person in his position to lose self-control and resort to violence."

"The provocative conduct which may sustain a defence of provocation need not necessarily be conduct of the deceased personally if it is conduct in the presence of the deceased by a person so closely associated with the deceased that it is reasonable for the jury to attribute the conduct of that person to the deceased. See Kenney ...." (Emphasis added.)

On the question whether acts of provocation must come only from the victim, in R. v. Manchuk[35] Sir Lyman P. Duff, C.J.C. speaking for the Canadian Supreme Court said -

"And we think, moreover, as regards the source from which the provocation proceeds, that acts of provocation committed by a third person, which might be sufficient to reduce the offence to manslaughter if the victim had in fact participated in them, may have the same effect where the offence against the victim is committed by the accused under the belief that the victim was a party to those acts, although not implicated in them in fact." (Emphasis added.)

The objective test for provocation plainly enough requires that an alleged wrongful act or insult must be viewed after identifying its content and relevant implications. It has been said many times that conduct which in some circumstances may be quite unprovocative may be intensely so in other circumstances; see e.g.

Stingel[36]; Moffa[37]; and R[38].

From the foregoing it follows, in my view, that in any re-trial the applicant would be entitled to have the words and conduct of the deceased and Gidey Hadgu said to be capable of supporting a defence of provocation considered in light of the history of the relationship between them all and against the background of the evidence of Ethiopian cultural values and mores. If the jury accept the evidence that the words attributed to Gidey Hadgu were spoken by her in the presence of Kassa Wube, followed by his smiling at the applicant in the manner suggested, it would be open to them to take the words and conduct of the wife into account as (to use the words of Badgery-Parker, J. in Tumanako) "conduct in the presence of the deceased by a person so closely associated with the deceased that it is reasonable for the jury to attribute the conduct of that person to the deceased". Alternatively it might be said that the provocative words spoken by the wife are available to be used in considering the defence of provocation on the ground that she and the deceased were both participants in the episode (as in Hutton and Manchuk) or if, the words having been spoken in the hearing of the deceased, the applicant could reasonably have taken the deceased as having associated himself with them or adopted them as his own.

Among the formulations just suggested, it may be that the most helpful in the present case is the concept of participation. Participation on the part of the victim (in the words or actions of Gidey Hadgu) might be found (by way of example) if the two joined spontaneously in committing acts of provocation, or if the victim showed approval (by smiling) of an assertion by Gidey Hadgu of a sexual relationship with him. In these circumstances the participation of the victim in a sense involves an adoption or acceptance of the conduct of the party supposedly providing the principal provocation. This view does not result in any necessary departure from the principle that provocation must come from the acts or words of the victim, a proposition asserted in the second paragraph of the chart, in sub-paragraph 1. If this proposition is to be retained in any future chart upon a re-trial, it would no doubt be necessary for the judge to explain to the jury how the actions of Gidey Hadgu might, in this context, be viewed by them, as part of the allegedly provocative conduct of the deceased.

I accept that there will sometimes be circumstances where, as in Kenney, the conduct of someone other than the victim is available to be treated as a basis for the defence of provocation on the ground that the deceased and the other party were acting in concert or aiding and abetting. But, in my view, this is not such a case, and it would, as in Gardner, serve merely to confuse the jury and distract them from the real issues, to include in any document made available for their consideration in the circumstances of this case a paragraph requiring them to consider the concepts of acting in concert or aiding and abetting.

A further question is whether it is necessary for the jury's attention to be directed to the issue of mistaken belief. In Kenney, Brooking, J., with serious reservations[39], said he would direct the jury that they might take into account acts mistakenly believed by the accused to have been done by the victim himself", and did not direct the jury that the belief had to be reasonable. In R. v. Voukelatos[40], this approach was, I think, taken to be correct. Glanville Williams[41] strongly supports the proposition that a mistaken belief in provocation is equivalent to actual provocation.

There is, I think, much to be said for the view that provocation mistakenly believed to have come from the victim should be available for consideration by the jury, provided, however, that the mistaken belief is reasonably held; see e.g. Gillies, Criminal Law[42]; Finbarr McAuley, Provocation: Partial Justification, Not Partial Excuse[43]. This approach would also be consistent with what was said by Wilson, Dawson and Toohey, JJ. in Zecevic v. Director of Public Prosecutions[44] in relation to self-defence, that the issue is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did.

It would, I think, be wrong for me to express more than a preference for the view that a mistaken belief, to be available as provocation, must be a reasonable mistake. During the trial the Crown was content to have the matter put before the jury, in the chart, on a basis that was not subject to any limitation that the belief (if mistaken) should be a reasonable one (see the third paragraph). The matter has not been fully argued before this Court in the written submissions of the parties. If the evidence in a future trial is substantially the same as in the first trial, the judge and counsel might well take the view that in all the circumstances the jury would be appropriately assisted by a paragraph in a chart concluding, as does the present one, "or if the accused man believed they were."

Having regard to what we have been told as to how the defence will seek to make out the defence of provocation, it is unnecessary to give consideration to other issues involving allegedly provocative actions by an innocent third party, or transferred malice.

I joined in the orders made by the Court on 26th April 2000 for the reasons given by the learned presiding judge in the first part of his judgment.[45] As his Honour records, the Court invited written submissions from counsel touching the topics dealt with in the second part of the judgment. I am grateful to counsel for their thoughtful submissions, which I read with interest and discussed with Charles, J.A., but I find it unnecessary to consider those issues.

On 26 April 2000 I too agreed in the orders of the Court and for the reasons set out by the learned presiding judge in the first part of his judgment. I also agree with the observations of Charles, J.A. in the second part of his judgment. I would add only this. If a chart is to be utilised as an adjunct to a judge's charge care must be taken that the directions of law contained in it appropriately address the factual issues raised for jury determination. The concepts of concert and aiding and abetting, which featured in the present chart, are designed to found criminal liability and will rarely be of assistance to a jury in the context of provocation. Indeed, such concepts may well add unnecessary complexity to the task confronting the jury. What is required in a case where provocative conduct emanates from a person other than the deceased is an adoption of, or assent to, or participation in, or association with, that provocative conduct by the deceased in such a manner that the provocative conduct of that other person may also be attributed to the deceased. The precise formulation will necessarily depend on the individual facts of the case before the Court.

[3] (1997) 94 A.Crim.R. 335, esp. at 335-336.

[14] Phillips, C.J., Ormiston, J.A. and Hedigan, A.J.A.

[16] See R. v. Moffa [1977] HCA 14; (1977) 138 C.L.R. 601 per Barwick, C.J. at 607.

[21] In so doing his Honour at 470 based his comments on Snelling, Manslaughter upon Provocation (1958) 31 A.L.J. 790.

[22] (1989) 42 A.Crim.R. 279. The decision in Gardner has been criticized by Professor Jenny Morgan in an article, Provocation Law and Facts: Dead Women Tell No Tales, Tales Are Told About Them, [1997] MelbULawRw 6; (1997) 21 M.U.L.R. 237 at 253-255. The article, as the title suggests, is strongly and persuasively critical of the present state of the law in relation to provocation as a defence.

[35] [1937] 4 D.L.R. 737, at 739; see also Rex. v. Jackson [1941] 2 D.L.R. 119, at 128.

[37] 138 C.L.R. per Barwick, C.J. at 606, per Gibbs, J. at 616.

[40] [1990] VicRp 1; [1990] V.R. 1 by Young, C.J. at 4 and by Murphy, J. at 11-12 and 20, although in both cases their Honours' comments appear to have been made in obiter dicta.

[41] Glanville Williams, Textbook of Criminal Law, 2nd ed, 1983, 542-3. See also R. v. Manchuk [1938] S.C.R. 18.

[43] In Yeo, Partial Excuses to Murder, at 223.

[45] See also R. v. Curzon [2000] VSCA 128. The observations of Phillips, C.J. at [4] in that case apply mutatis mutandis. Both trials took place before R. v. Thorpe (No. 2) [1999] VSCA 172.

At a glance

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Judgment (111 paragraphs)