R v Blake [1994] QCA 77

He started watching television at about 10.30 p.m. and fell asleep. He woke up to find that she was not at home. At about 11.30 p.m. he went outside and started pacing up and down the footpath in front of the house. He said that he was worried as he heard an ambulance and a police car in the vicinity of the garage. Eventually she drove into the driveway. He asked her if she was alright and she replied yes. He asked her where she had been and she replied that it was none of his bloody business. Her voice seemed sharp.

He went inside the house and then noticed that it was a quarter past one. She came in after locking the car and closing the gates. He asked her again: "How come it took so long? It took three hours." She again replied in the same tone: "None of your bloody business." She went into the bathroom and undressed and then walked into the bedroom. He asked her if there were any problems. She was walking towards the wardrobe, turned around and said that she wanted to end the marriage. He asked why. She replied that she no longer loved him. He replied that he had always been a good husband and always tried to give her everything he possibly could. She turned away as if she was about to open the wardrobe and then turned back quickly and said: "For your information I have been having an affair for the past two months."

"Right at that instant I just clicked. I just - my mind just turned around and said I didn't want to hear any more, and I reached out to her. I just didn't want to hear any more. I just grabbed her, put my hands around her neck and I kept pushing towards her. We lost balance and fell on the bed. We bounced around on the bed for just a couple of seconds, and she breathed in as though she was going to say something, and I thought she was going to say something to what she said before, about the affairs, so I put my hand over her mouth, because I had the same thing going over my head and I just didn't want to hear any more. A little while later she just went limp."

He said that he applied pressure to her neck for no more than 25 seconds.

The appellant told a friend the following morning that he strangled Tamee. In a call to the police shortly afterwards he said:

"She went out last night to get some cigarettes. She didn't get home until 1 a.m. ... she then told me that she was going to end the relationship, and that she had been having an affair for about two months. I then just snapped and strangled her."

In a video recorder interview with the police investigators he said that the deceased told him she had been having an affair, wanted to dissolve the marriage and was not happy. He said that something inside of him just clicked and he held her neck until she stopped breathing.

A specialist pathologist gave evidence that death was caused by manual strangulation. Pressure was applied to the neck for a minimum of 3-5 minutes. There were two applications of force to the neck and an application of force with a blunt object to the left cheek causing bruising.

The appeal against conviction appears to be based on two grounds. They are:

1.That the defence of provocation should have been left to the jury; and

2.That the learned trial judge failed to direct the jury adequately as to the defence case.

The learned trial judge withdrew provocation from the jury because he concluded that, on a view of the evidence most favourable to the appellant, "a reasonable jury could not conclude that an ordinary person may have been so deprived of his power of self-control to have reacted in such a way as to intentionally kill the deceased woman".

Notwithstanding the absence in s. 304 of a provision stating that the question whether any matter is or is not capable of constituting provocation is a matter of law, such as there is, for example, in the Tasmanian Criminal Code, his Honour was correct in withdrawing, as he did, provocation from the jury if there was no material in the evidence capable of constituting provocation. See R. v. Buttigieg (C.A. No. 108 of 1993, 11 June 1993, unreported), p. 9, para. (c). The question in this appeal is whether his Honour was correct in the conclusion which he reached that there was no such material. In deciding that question, it is unnecessary to resolve the question, referred to in Van den Hoek [1986] HCA 76; (1986) 161 C.L.R. 158 at 168 and Buttigieg at 9, whether s. 268 or the common law supplies the definition of provocation for the purpose of a defence under s. 304. Whether or not there is any relevant difference (as to which see Stingel v. R. [1990] HCA 61; (1990) 171 C.L.R. 312 at 320) the only acts which could conceivably have constituted provocation were those communications by the deceased to the appellant in their bedroom of the facts that she wanted to end the marriage, that she no longer loved him, and that she had been having an affair for the past two months.

There was no evidence that she said these things in any provocative way or that she used any provocative gestures or that any other provocative conduct by her preceded, accompanied or followed them. No doubt what she said cannot be viewed in isolation from the events from the time the appellant woke to find that the deceased had not returned or from the context of their relationship up to that time which appeared to the appellant to be a good one. But even in that context the speaking of those words could not have been of such a nature as to be sufficient to provoke an ordinary person to lose his self-control to such an extent as to intentionally kill. There was nothing more than mere words; there were no "circumstances of a most extreme and exceptional character": Holmes v. Director of Public Prosecutions quoted in Buttigieg at 25.

The appellant complained that, in the course of his summing up, the trial judge did not take the jury through the whole of the witnesses' evidence, but only a part; that he did not sufficiently direct the jury on the evidence advanced for the Crown and the defence.

The learned trial judge correctly instructed the jury as to their function, that their ultimate task was to evaluate all the evidence led by the Crown and the defence in determining whether the accused's guilt has been establish beyond reasonable doubt. He explained that he was going to go through some of the evidence, not all, but said that if there was some aspect of the evidence to which he did not refer that they thought important and would like him to refer to, he would do so. He stressed that simply because he did not refer to an item of evidence, it did not follow that it was unimportant.

His Honour went through the evidence led for, and case presented by the accused at some length. He said that it was to be treated along with the rest of the evidence as to the issues of unlawful killing and intent. He explained the medical evidence led for the Crown and the relevance of the evidence of the domestic relationship of the appellant and the deceased. No application was made on the ground that the trial judge had failed adequately to take the jury through the evidence.

In our view the summing up gave adequate attention to both the case presented for the Crown and that for the accused, and explained the relevance of the evidence to the issues and the use the jury could make of it. This ground of appeal must also fail.

The appeal against conviction should therefore be dismissed.

The appellant also submitted that his sentence of life imprisonment should take effect from the date of his arrest. The appellant has been in custody solely in relation to this offence since the date of his arrest on 17 November 1992, that is more than ten months prior to the imposition of his sentence. His submission, in terms of the Penalties and Sentences Act 1992, is that either the term of life imprisonment imposed on him should have been ordered to have effect on and from the day of his arrest pursuant to s. 158; or that the time from his arrest to the imposition of his sentence should be taken to be imprisonment already served under the sentence pursuant to s. 161.

Although neither of these courses, if taken, could have affected the sentence imposed (Criminal Code s. 305) either would, we think, affect his eligibility for parole. Section 166 of the Corrective Services Act 1988 provides, in sub-s. (1)(a), that a prisoner serving a term of life imprisonment is not eligible for release on parole until the prisoner has been detained for a period of 13 years. Although the meaning of the word "detained" in that provision is not entirely clear, we would construe it to mean detained pursuant to a sentence of the court. See sub-s. (2) which, with reference to a prisoner serving a sentence other than a life sentence, refers to 50% of the period for which the prisoner was "directed to be detained". Consequently unless the sentence in the present case includes the period already served, that period would not be taken into account in determining the appellant's eligibility for parole pursuant to s. 166.

As appears from the judgments of this Court in R. v. Wishart and Jenkins (C.A. Nos. 275 and 276 of 1993, 21 December 1993) there are obscurities and inconsistencies in ss. 158 and 161 of the Penalties and Sentences Act and it is not clear why the subject with which they deal is dealt with in two separate provisions. Where provisions are as uncertain in meaning as these, there is much to be said for consistency in their construction even if the construction adopted is to some extent an arbitrary one. We therefore propose to adopt the construction given to these provisions by the joint judgment of the Chief Justice and Pincus J.A. in that case. However, the adoption of that construction does not resolve all of the obscurities in those sections the resolution of which is necessary to answer the question referred to in the following paragraph.

The question of construction which arises is whether ss. 158 or 161 apply to life sentences. There is no difficulty on the face of sub-s. (1) of either of those sections in applying it to a life sentence. The question is whether sub-s. (2) of the former and sub-s. (3) of the latter can be construed so as to apply. Plainly the court cannot, in such a case, cause to be noted in the records of the court that the time held in pre-sentence custody was taken into account by it in imposing the sentence (s. 158(2)(d)(ii); s. 161(3)(d)(ii)) because it was not. The sentence is imprisonment for life whether or not the appellant spent time in pre-sentence custody.

The question then is whether the phrase "unless the court otherwise orders under sub-s. (1)" in sub-ss. (2)(d)(ii) and (3)(d)(ii) respectively permits the term of pre-sentence custody to be included in the term of imprisonment without the need for a noting in the records of the court that it was taken into account in imposing sentence. That phrase in sub-s. (2)(d)(ii) of s. 158 cannot refer to an order other than the order referred to in s. 158(1) because sub-s. (2) applies only if an order under sub-s. (1) is made: Wishart and Jenkins at 9. In the context of that section, it must mean an order obviating the need to note in the records of the court that the declared time was taken into account by the court in imposing sentence. In other words the phrase should be read as if the words "under subsection (1)" were omitted.

It is inconceivable that that phrase should be given a different meaning in s. 161(3)(d)(ii) from that which it bears in s. 158(2)(d)(ii). The provisions are identical. This means, however, that that phrase in s. 161(3)(d)(ii) has a different meaning from the phrase "unless the sentencing court otherwise orders" in sub-s. (1). In s. 161 it is only where the court takes the time in custody to be imprisonment already served under the sentence that sub-s. (3) applies (Wishart and Jenkins at 10) and consequently that it may be necessary to make an order pursuant to para. (d)(ii) of that sub-section that no noting need be made that the time was taken into account by the court in imposing sentence.

The phrase "unless the sentencing court otherwise orders" in s. 161(1), which has no equivalent in s. 158, has a quite different purpose. In one obvious category of cases it permits the court, instead of taking the course which the earlier part of that subsection contemplates, to deduct from the term of the sentence which it would otherwise have imposed sufficient time to take into account the time spent in pre-sentence custody.

In our opinion, therefore, ss. 158 and 161 allow a court sentencing an offender to imprisonment for life either to order that the term of imprisonment is to have effect on and from the day the offender was arrested or to take any time that the offender was held in custody in relation to proceedings for the offence and for no other reason to be imprisonment already served under the sentence. And because, in determining such an offender's eligibility for parole, his pre-sentence custody would not otherwise be taken into account we think that either an order should be made pursuant to s. 158 or that the time held in pre-sentence custody should be taken to be imprisonment already served pursuant to s. 161. Because, in this case, the appellant spent the whole of the time from the day of his arrest to the day of sentence in custody, we think it appropriate to make an order under s. 158.

The judgment and reasons in Wishart and Jenkins and in this case show a number of obscurities and inconsistencies in ss. 158 and 161. These judgments and reasons are an unsatisfactory substitute for intelligible statutory provisions. Despite amendments made in 1993 these sections remain in urgent need of amendment.

2.Grant the application for leave to appeal against sentence.

4.The dates between which the appellant was in custody in relation to proceedings for the offence and no other reason was from 17 November 1992 to the date of sentence on 7 October 1993.

5.The time that the offender was in custody in relation to proceedings for the offence and for no other reason was 325 days up to the date of being sentenced.

6.The time of 325 days calculated under paragraph 5 is to be imprisonment already served under the sentence.

7.Order that the time of 325 days so declared was not taken into account by the court in imposing sentence.