R v Hill [2007] VSCA 261

2 He now seeks leave to appeal against his conviction.[2]**

**3 The application arose against the following general background which, for the most part, was not the subject of controversy.

4 During the night of 26 May 2004, Julie May Francis, the former girlfriend of the applicant, celebrated her 23rd birthday with Mr Scholes (the deceased) and her family at her home in McCrae. At approximately 3.15am, Mr Scholes' left and travelled to his own home at Somerville. Upon his arrival at the front gate of his property, he was confronted by the applicant who he had not previously met. An altercation ensued in the course of which the applicant punched him more than once with his fist and, using a stick, administered a number of blows to his head. Shortly after 6.30am, the father of Mr Scholes located his son a short distance away in a dam to which he had apparently staggered in a dazed state at the front of a neighbouring property. He was alive, but died soon afterwards from extensive blunt trauma injuries to the head and face.

5 An examination of the scene revealed two areas of blood staining at the entry to the deceased's property, and a blood trail from the front gate to the dam.

6 The applicant was arrested at 4.00pm on Thursday, 27 May.

7 When interviewed by police, he admitted following the deceased home and assaulting him with his fists and a stick. He also admitted to disposing of the deceased's mobile telephone, and burning the stick and the jumper that he (the applicant) had been wearing.

8 In evidence at the trial, he stated that he punched the deceased three times, and hit him in the forehead with the stick three times. He said that when he left after the incident, the deceased was crouched down on one knee against the front gate of the property, breathing heavily. The applicant could see blood flowing on his face, nose and lip, but did not think he was seriously injured. However, becoming concerned, he returned to the property within a few minutes, and not seeing the deceased proceeded home.**

9 At the trial, the prosecution contended that the applicant was unable to accept the end of his relationship with Ms Francis. He drove to the vicinity of her home on the night of her birthday and upon observing the deceased leave followed him with the intention of confronting and, at least, beating very seriously a person who he had never met as an expression of his pent up anger and frustration. When the deceased stopped his vehicle at his front gate, he was attacked with extreme savagery; the applicant using both his fists and a piece of wood. The number and nature of the injuries sustained by the deceased spoke unequivocally of the intention of his assailant to kill or cause really serious injury to him, it was claimed. This was not a situation, the Crown argued, where any doubt could exist concerning the murderous intention of the applicant nor was it one in which a reasonable possibility existed that he may have acted under provocation as that term is understood in the law.

10 The defence submitted to the jury that, upon the end of his relationship with Ms Francis, the applicant became depressed and commenced to drink to excess. His state of mind was exacerbated by the fact that he had been present at her 21st and 22nd birthday celebrations but was unable to attend her 23rd as he was 'not in the picture anymore.' Counsel contended that this was a man who found himself near Ms Francis' home, in a drunken, emotional state at a time of significance to him and wondering 'what if.' Unfortunately and coincidentally, he saw the deceased leaving her house and made the 'stupid and ultimately tragic' decision to follow him, it was said. Counsel argued that the applicant went to the deceased's property for the purpose of confronting his perceived rival but not with the intention of killing him. He conceded that it was obviously wrong of him to go there and accepted that the deceased did not initiate or invite the incident. However, he argued, what happened transpired as the consequence of a spur of the moment wrong decision, made by a young man in a sad emotional, depressed, drunk and angry state. When the confrontation occurred, the applicant appreciated the foolishness of his actions and attempted to extricate himself from the situation, but the deceased wanted to continue to fight and taunted him in an extremely hurtful way, referring to his penis size and Ms Francis' comments about him. The applicant responded by striking out, not with any intention to kill or cause serious damage to him, but in hurt and anger. On this basis, he submitted the proper verdict would be one of guilt of manslaughter. Counsel argued that the jury might also have to consider the possible application of the concept of provocation in this context which would lead to the same result.

The relationship between the applicant and Julie May Francis

**11 Julie May Francis met the applicant in about September or October 2003 at a party and they went out together for a couple of months. Not long afterwards, a mutual friend celebrated her 21st birthday, and Ms Francis and the applicant separately attended the party. A couple of days later, they resumed their relationship and continued to see each other until October 2003 when Ms Francis ended the association once more.

12 A short time later however, the applicant contacted Ms Francis and told her that he had booked a motel in the city for the night and wanted her to join him. She initially refused, but eventually agreed and they spent the night together. There were also two further occasions, after the initial break up, on which they were intimate.

13 When it appeared that the relationship was finally at an end, the applicant sent Ms Francis an email message saying that he was going to kill himself. He then sent her numerous email and text messages, and telephoned her insisting that she was wrong to break up with him. Ms Francis requested the applicant to stop contacting her and, although he agreed, he continued to attempt to communicate with her through her mobile phone, sending text messages at all hours. This continued until Ms Francis changed her phone number about two weeks before the death of the deceased.

14 For a short time in October 2003, Ms Francis was seeing a young man named Craig Browne and then, just before Christmas 2003, another named Christopher Martin. On one occasion, the applicant was at her house when Mr Martin called, and the applicant grabbed the phone from her and said, 'Who's this', then terminated the call. Ms Francis tried to call Mr Martin back, but the applicant pulled the phone out of the wall.

15 On a further occasion in 2004, Ms Francis and Mr Martin had been out at a bar after which they drove to the Rosebud beach car park. While they were there, they noticed that the applicant had parked nearby. When Ms Francis returned home at 3.30am, the applicant first called her saying that he had seen her car, and then drove quickly past her house.

16 In April 2004, Ms Francis met the deceased at a dance class and subsequently they went to a ball together.

17 On 14 May 2004, Ms Francis noticed that the applicant was following her as she drove home from work. When she arrived, he got out of his car, and told her that he had booked a hotel in the city for the following night, and he asked her to join him. She declined this request and went inside. He followed her and she asked him to leave. Later that night, as Ms Francis was leaving to go to a dance class, she found a note from the applicant and some photos that he had taken from the house under the windscreen wiper of her car. At the end of her class, she noticed that she had received several SMS messages from him and that there were some missed calls recorded on her phone. On the following day, she changed her mobile telephone number. Later that day, the applicant visited her house and apologised for sending so many messages and promised that he would not call or send text messages to her again.

18 However, on Monday, 17 May 2004, Ms Francis received an email from the applicant, complaining that she had changed her mobile number. She deleted the email and blocked his email address. Ms Francis was working at a solicitor's office at this time, and asked her employer to send a letter to the applicant indicating that he was not to contact her again.

19 On Saturday, 22 May 2004, Ms Francis went out to dinner with the deceased and, upon leaving the restaurant, noticed the applicant's vehicle parked nearby.

20 Craig Francis Browne went out with Ms Francis several times in October and November 2003. He had met her in August, and they exchanged email messages before going out together on four or five occasions. He was aware that Ms Francis was in the process of ending her relationship with the applicant at that time. In around November 2003, Mr Browne received a rather agitated telephone call from the applicant in which he said that he was Ms Francis' boyfriend and blamed Mr Browne for their break up. The applicant called on another one or two occasions. Mr Browne, who had a background as a youth worker, told the applicant that, if he was upset, he should talk to someone and offered to provide him with the name of a person who might be able to assist.

21 Christopher Lee Martin had known Ms Francis since high school. They encountered each other at a bar in early 2004, and she told him that she had broken up with her boyfriend. They exchanged telephone numbers and started going out together. During this time, he observed that Ms Francis was receiving annoying phone calls and text messages from the applicant. Mr Martin also received text messages from him, to the effect that: 'You're the biggest loser' and 'Julie is too good for you.' On one occasion, Mr Martin was driving Ms Francis' car when he noticed that he was being followed by the applicant. On another, when Mr Martin and Ms Francis were at the Rosebud foreshore car park, he observed the applicant nearby. There were a number of other times when Mr Martin would be out with Ms Francis and the applicant would appear.**

**22 Ms Francis stated that on her 23rd birthday (26 May 2004), the deceased visited her workplace at around 4.00pm, and they went together to her house for her birthday celebrations. The deceased left at about 3.15am.

23 David Allan James Scholes, the father of the deceased, said that his son was a physiotherapist, who lived with his family in Somerville. The deceased met Ms Francis at his first dance class, six weeks before his death. Both Mr Scholes' daughter and Ms Francis shared the same birthday of 26 May. On that day, his son finished work at 3.00pm, and came home to cut flowers and make chocolates for Ms Francis' birthday. He left the house at around 4.00 or 5.00pm to meet Ms Francis at her place of employment.

24 On the morning of 27 May 2004, Mr Scholes woke at 5.20am, to get ready to go to work. As his wife and he drove their car down the driveway, at about 6.30pm, they noticed the deceased's car on the other side of the gate, with its engine running. Mr Scholes' wife investigated, and called out that she could see blood. Mr Scholes then went to the deceased's car, which he reversed and parked on the nature strip.

25 Mr Scholes and his wife next commenced to look for their son. The observed blood on the gate and on the ground nearby. Mr Scholes found the deceased's watch, which was broken, his glasses and belt, and a key to the gate. He secured some torches from inside the house and continued searching for the deceased. He noticed a blood trail that continued onto the adjoining property, which he followed, and found the deceased in their neighbour's dam. When retrieved from the water he was alive but unable to talk and was making gurgling sounds. A short time later, one of the ambulance officers who was called informed Mr Scholes that his son had died.**

**26 Detective Senior Constable Warren Duane Ryan and Detective Sergeant Ralph Miles Tyler attended the scene on 27 May 2004. At approximately 4.00pm that day, they attended the applicant's house in Dromana. When they arrived, the applicant was washing his car on the nature strip. He was conveyed to the Hastings Police Station, and at around 10.00pm, was examined by Dr Igor Jakubowicz. At 11.00pm, Mr Ryan, Mr Tyler and the applicant went to his home, where a search warrant was executed.[3] On their return to the Hastings Police Station, the applicant participated in a video recorded interview[4] in the course of which, he made a drawing of some of the relevant locations.[5]

27 The police also executed a search warrant at the premises of the applicant's parents and, in company with the applicant, were shown (inter alia) a barrel in which the applicant stated he had burned a small branch and the jumper he had been wearing on the previous night. He stated that the branch had been used in an incident that had occurred between the deceased and himself.**

28 The applicant told the police, in his interview, that he had consumed a number of cans of Jim Beam bourbon whiskey during the evening and that he called his brother at about 8.30-9.00pm and informed him that he was going to 'pop over' but would sober up first. He said that he rested for some time and then, at about 3.00am, decided to go to his brother's home to 'veg out with him.' When he reached the ramp of the Mornington Peninsula freeway, in the course of that journey, he saw the deceased's car. The applicant said he was able to recognise this vehicle as the tyre rims were 'pretty unique.' He said that the deceased was, in his opinion, a part of what had occurred between his ex-girlfriend and himself. He said that he had seen the deceased and Ms Francis at his favourite pizza restaurant having dinner and decided at this point, in his alcohol affected state, that he was going to show the deceased who had the better car and so he accelerated. When the vehicles reached the Dromana exit ramp, the applicant deduced that the deceased must have been returning from Ms Francis' home. However he then thought that Ms Francis may have been in the vehicle as it was her birthday and they may have been going out somewhere. He then said that as he was now sober he could look back on what had occurred and see that he was -

pretty influenced by my confused ... state of mind ... I certainly had no intentions of anything at all ... initially [it] was just to see what's going on, but like as things progressed as we were driving along, I'm thinkin', "Maybe I'll give this guy a bit of male bravado ... a punch in the nose for what he's done to me," ... and it's only, from where we were to his driveway, it's only like, a 20, 25 minute drive.

**29 He stated that the deceased arrived at his front gate first and that he was close behind him. The applicant said that he made no attempt to conceal himself, so the deceased 'should've' noticed him. The applicant alighted from his vehicle and called the deceased 'a prick', blaming him for causing him to lose his 'best friend'. He stated that at that stage there were many emotions and pressures boiling up within him. He said that, as the deceased turned towards him, he (the applicant) punched him in the face. He said that he may have broken the deceased's glasses. The applicant said, that he remembered berating himself for having hit a person wearing glasses. He said that the deceased responded and took a 'swing' at him which did not 'really' connect. The applicant said he then hit him again, connecting with his cheek and that the deceased in response tried to have 'another go' at him. The applicant claimed that he then told the deceased that he (the deceased) had had enough, but asserted that the deceased wanted to keep fighting. He said that all that he wanted to do was vent a few 'stupid' frustrations, but that the deceased wanted to continue the confrontation and verbally insulted him saying 'some pretty nasty things about my manhood' to which the applicant reacted by telling him to 'shut up'. There were a couple more swings taken at each other before the applicant walked away, inviting the deceased to 'call the cops on me in the morning.' However the deceased came at him again. The applicant said that he then picked up a stick from the low bushlands near where he had parked his car and turned, calling upon him to stop. He then hit the deceased with the stick three times, although he was reasonably sure that the third swing did not connect. He said that this part of the fight occurred in the driveway near the gate. The deceased leaned against the gate and then fell on to one knee. According to the applicant, the deceased was breathing heavily, but was not bleeding. However, the applicant did notice a little blood on the stick, on his hand and his sleeve. He said that he then got into his car, 'without thinking about it' and headed off down the road.

30 The applicant stated that he travelled only a relatively short distance before he realised that he had been foolish in confronting the deceased and, at the second roundabout, turned and returned to where he left him. He said that he wanted to ensure that the deceased was not badly injured and he intended to accept the consequences of his actions, by ringing the 'emergency services.' He parked his car in the driveway, so that his lights were shining along it, but he could not see the deceased. He said that as he had only left the deceased about five minutes earlier and because he could not see him at the gate, he thought that the deceased had possibly gone into the house and called an ambulance himself. The deceased's car was still there.

31 He noticed the deceased's mobile telephone lying in the middle of the driveway. He thought that he would use it to call someone, who had a search light, to come and check the area. However he observed that the screen read 'SIM rejected'. He then returned to his vehicle, placed the phone in the car's middle console and drove off feeling confident that everything was 'alright' and he dismissed what had occurred as a 'stupid incident'.

32 He said as he drove away, he was 'in a bit of a state... having drunk a fair bit... Should I have a shower first and then head out and do something about what's happened.... I'm in one of those dazed choice states.' He said he went to the home of his parents, all the while berating himself for drinking so much, being a 'dumb shit' and allowing a 'stupid thing to occur.' He said that, while driving to his parent's home, he felt so frustrated that he was unable to use the phone that he tossed it out of the driver's side window. He said this occurred in the Dromana area, near the two bridges that cross the freeway. He described the structures as being a car bridge and walking bridge and presumed that, when he threw the phone, it would have definitely landed in the right hand lane. He said that after he did so, he felt pretty stupid because now he would have to pay the deceased '200 bucks to get him a new phone'. He was able to recall that the phone was a Nokia brand as his brother had previously owned that particular model.

33 The interviewing policeman directed some questions to the situation at the time that the deceased arrived at the gate. The applicant said that the deceased's car was parked in the driveway, five metres from the gateway. He described an archway on either side and two gates, one of which was open and the other closed. He said that the deceased had pulled up behind the closed gate, but he was unsure whether that was the reason that he got out of his vehicle or it was something that the applicant had said to him.

34 The applicant said that he parked his car on the opposite side of the road, across 'another person's driveway' and that there were trees and 'foliage' in that area. He said the conversation was to the effect of 'who ... do you think you are ruining and taking away my best friend.' He said the deceased turned, looked at him and that they then 'converged on each other.' He said that there was an exchange of insults and that he struck the first blow hitting the deceased on the chin. The deceased then took a swing at him but, according to the applicant, 'it didn't really connect.' The applicant then punched him on the cheek and then the nose. The applicant said that he gave the deceased three blows punching the deceased twice with his right hand and once with his left. He said that the deceased's blows in retaliation did not 'really' connect and that they were more 'like a brush.'

35 The applicant said that he suffered only minor cuts to his hand and that they were probably sustained when he punched the deceased to the face breaking his glasses.

36 The applicant said, regarding the stick, that he moved across the road towards his own car because he did not wish to continue fighting. He was on the asphalt section of the roadway while the deceased remained at the gate taunting him to finish what he had started and saying that Ms Francis had told him that the applicant had a small penis. The applicant said he told the deceased to 'shut up,' that he did not wish to fight anymore and that he should 'call the cops now and charge me or something.' The applicant said that the deceased wanted to continue and approached him. He was conscious of the foliage surrounding him and then picked up the stick. He threatened the deceased calling out to him to 'back off' and he then took a swing with the stick, but missed. When the applicant was queried again as to where the deceased was positioned when he picked up the stick, the applicant said that he was standing in his driveway coming at the applicant but he did not believe that the deceased stepped onto the asphalt surface of the road. He said that he then went to meet the deceased in his driveway saying 'stop this now' and 'call the cops on me.' He said that he hit the deceased twice -**

with any real force at all and I didn't think it was a big branch and ... the only blood I got on me was ... a little bit on my hand and it ... wasn't much ... it was just like a little ... which had seeped in under the branch that I was holding.

**37 He re-iterated that he hit the deceased 'twice really well' delivering 'one good blow' to the head and one glancing blow to the same area. He said he hit the deceased on the forehead because he 'always heard [that] the forehead's the hardest part of the head.' He confirmed that he hit the deceased twice to the forehead and that the third blow 'wasn't even a hit. ... it was just a glance off that hit the shoulder.' He then said that the deceased was in 'pretty good shape.' He said that he (the applicant) then panicked, questioning himself as to where this was headed. That, he said, was the only lucid thought that he had 'the whole time basically that wasn't ... full of emotion and adrenalin.' He said that rather than charging in and doing what he did, he should have considered his actions more carefully.

38 He stated that he had no clear purpose in following the deceased and intercepting him at his driveway, and that he was -**

just making decisions and ... not thinking about them, just like the whole decision to drink so much that night. If I had thought about it, I would've drunk at a more steadier rate so ... I wouldn't get in such an inebriated state, feel so drunk, tanked up and ... wanting to do something about all the stupid thoughts in my head. If I wasn't so drunk, I would've tuned off [the freeway], I had plenty of opportunity to change lanes, gone up to Mt Martha, gone to my brother's place without gettin' caught for drink driving or anything.

He said he was not travelling behind the deceased -

thinking "I'm gonna do this ... and that," I was just thinking ... "I'm gonna confront him" ... See what happens .... what he says and ... just go from there. I got out of the car and I shouted at him straight away ... it was like to make sure he knew I was there.

**39 By the time he reached his parents' home, he said, he was in a state of panic and said to himself 'that's not where things were supposed to go.' He said that he thought of the check that he had made when he returned to the deceased's property, deducing that he must have already been in a car being taken to the 'right place' and then 'oh shit, I've got this stick with me ... I shouldn't be hanging onto this stupid thing ... get rid of it. ... It's a cold night, I might as well have a nice fire ... and just get rid of it.' He disposed of the stick by setting fire to it in a 44 gallon drum in the backyard of his parent's home. He burnt his jumper, which had blood on the sleeve, as he felt 'dirty' over what he had done. He estimated that he set fire to those items at around 4.00am. He was at the deceased's property at around 3.30am and the altercation lasted about two minutes.

40 He confirmed that he threw the first punch as he was in a quite agitated state but added that the deceased 'was ready to have fun as well.' However, he stated, he should have 'just left it there' and that he 'could've jumped in my car and let [the deceased] ... throw whatever he wanted at [me] and just driven off.'

41 The interviewing police member queried the applicant whether he could have left before the final part of the incident, without picking up the stick. He responded that the distances were 'vague' and that the deceased 'might have got me before I got to the car.' He was then asked whether the deceased stepped onto the roadway at all, to which he replied 'he was about to come onto the roadway to get me ... and that I was just reacting ... because it was a few steps further to my car than it was a few steps to him. I thought he would get to me first.' He said that, if he had been able to force or induce the deceased back into his driveway, he would have had plenty of time to go to his car and leave.

42 The interviewer asked him whether, upon returning to the scene and finding that the deceased's mobile telephone did not work, he considered going to any of the local houses to alert them to the fact that someone had been injured. The applicant said that he did not know if he actually considered that option as 'it wasn't like I was properly thinking or lucid or acting in his own right mind.'

43 The member queried him as to whether there was a telephone at the home of his parents, to which he responded that there was, but that he was just settling down after what had happened and he thought that 'maybe I should finish cleaning up.'

44 With respect to how badly injured the deceased appeared to be when he left the scene, the applicant said that he looked like he 'maybe ... would get up and start fighting again ... he was just catchin' a breather.' He said that the deceased was bleeding from the nose and that he might have had a slightly cut lip. He said that the nose bleed was the result of the 'earlier incident and he had already continued to fight after I had thrown that punch at him to the nose. He was just leaning up against the fence [and] seemed fine.'

45 The applicant described the deceased as bald, with defined cheekbones and a dimplish chin. He said that he had only seen him once before and that was at the pizza restaurant on the previous Saturday. With respect to whether he had 'any beef with [the deceased] or any reason to follow him home and get involved in an argument and assault,' the applicant stated that he believed that the deceased was involved in stealing away his 'best friend, not just girlfriend.' He said that, whilst they were together, Ms Francis had gone out on a 'girl's night' and had met the deceased who, according to her, had tried to 'hit on her'. The applicant dismissed the incident but, when Ms Francis had gone out on a second such night and again 'caught up with the deceased', two days later, she spoke to the applicant and broke up with him. He said he had been in a relationship with her for two years, although they took a 'break' after a year. He said that they were intimate during this 'break' and that he felt as though he was a 'waste station' that she used while she 'jump[ed] between guys, while I sat on the sidelines and wait[ed].' He said that he attended a counselling service that was offered at his university in order to deal with the break up.

46 He said that, in October 2003, Ms Francis instigated their separation and that he did make contact with her threatening that he would commit suicide as he was depressed. He said that he conveyed this threat to her via an email transmission.

47 He confirmed that he received a letter from a solicitor regarding his contact with Ms Francis and that he responded with one to the effect that 'in [his] experience of knowing her for a couple of years, [she] always seemed to leave facts out and then exaggerate others.' He said that 'she liked to forget that it was her who came over to my house ... a couple of times before I made any sort of contact with her again' although he did admit that he did 'go a bit stupid' in sending her 'five, six SMS messages on the phone' but asserted that they did not contain any suggestion of threat. They enquired, in effect 'why do you think you can do this to me.'

48 He said that the last time he saw Ms Francis 'face to face' was about 'three, four weeks ago', when he was on his way to his parent's house and he thought that he would convey through her parents that he was sorry for acting 'a bit stupid' in sending so many messages and asking her to accept his apology.

49 In the course of the interview, the applicant was requested to draw a diagram indicating where the cars were parked and where the altercation took place. He described that the deceased pulled up into his driveway but 'he was more committed to staying near the roadway than to the gate' and '[one] gate was open and [the other] closed and ... there [was] some sort of foliage or wall ... definitely [made of] wood.' He said that, at that stage, he thought that he would park his car and say something to the deceased. He said that he was parked with his vehicle more on the road than off it. He said he passed in front of his headlights and that the deceased 'definitely' saw him and that he approached the applicant as well. He said that the incident commenced at the rear of the deceased's vehicle. The applicant then headed towards his own vehicle, again passing in front of his vehicle's headlights. A second altercation followed, which according to the applicant 'happened in the same area' because the applicant headed towards the deceased and they both backed up past the deceased's vehicle. When asked what caused the deceased to back up towards the gate, the applicant said that there was 'nothing particular' and that it was 'just like in a rush.' He said he forced the deceased backwards but it was not the situation that he (the applicant) 'came along swinging.' He said that 'the first time we both just swung at each other and then I've backed off and then he's come at me' and he thought to 'push back.' It was then that he swung the stick at the deceased. According to the applicant, the deceased then leaned with his back against the gate. He decided that the deceased did not appear to be badly hurt and then went to his car.

50 The applicant was unaware that the deceased had died until he was informed by the police. He said that when he left, the deceased was still standing 'on one foot, ... he wasn't dead [and] ... he didn't look like he had any sort of injuries which would kill him' and it was certainly not his intention to do so. He said he expected to hear that the deceased had lodged a complaint against him.

51 The applicant denied that he was in Ms Francis' street on the night of 27 May 2004.

52 The applicant said that when he was approached by the police officers for the first time, he was washing his car as he had not done so for about 10 months. He said that his motivation for doing it at that time was that he thought that if he was going to go somewhere important as the police station, 'I really need to wash my car.' He continued that there was nothing on the vehicle 'except dirt' and that his reason for washing it was not related to the incident that had occurred between the deceased and himself.

53 The applicant said that when the police officers arrived he had just washed the driver's side of the vehicle 'which is the opposite side to which was facing [the deceased] and his car.' He said that he had also prepared the interior of the vehicle so that he could vacuum it after he had cleaned the outside. He agreed that he removed the floor mats but asserted that that was a practice he always followed before he vacuumed the inside of the vehicle.

54 The applicant was asked to demonstrate the manner in which he hit the deceased with the stick. He indicated that it was 'just a swat. Nothin' fancy. Nothin' tryin' to do any real harm ... like bugger off ... it was like one, two, glance.'

55 When asked what was going through his mind as he was punching and hitting the deceased with the stick, he said that it was just 'a little bit of bravado' which turned into 'let's swing a punch at each other', but then, he said, the insults became nasty. With regard to his resort to the use of the stick, the applicant said that he did not want to 'cop one in the back of the head if I tried to get into my car.' He said that he was under the impression that he was closer to the deceased than he was to his car and that he had to do something to get the deceased to move back so that he could extricate himself before anything else occurred.

56 The applicant described the stick as crooked, about 30 centimetres long and 2-2.5 centimetres wide.

57 With regard to whether he could offer an explanation for the incident, the applicant said that he intended to have 'a nice little blue with him ... that he's ended up dying, there's no explanation for that because that wasn't supposed to happen.' When asked whether he appreciated that the situation would have been avoided had he not followed the deceased home, the applicant said -**

Maybe but ... I don't know if I was in a condition to make a rational decision at the ... time that I saw him ... I was a bit later when I started sobering up a little bit and thinking "what's goin' on."

When he initially left his home, the applicant said, it was for the purpose of visiting his brother or go for a drive down the foreshore or maybe 'go up to Arthur's seat.'

**58 At 4.08pm, on 28 May 2004, a line search conducted along the Mornington Peninsula Freeway, between the Kangerong Avenue and McCulloch Street exits resulted in the finding of a number of Nokia mobile phone items consistent with that belonging to the deceased.[6]

59 Dr Igor Andrew Jakubowicz examined the applicant at the Hastings Police Station, at 10.05pm, on 27 May 2004. He also obtained forensic samples from him and a number of photographs.[7] Dr Jakubowicz observed superficial lacerations on the applicant's hands and knuckles, which the applicant said he had sustained in his work as a night filler when opening boxes.**

**60 Senior Constable Matthew Francis Kelso Lamberth, a crime scene investigator, attended the deceased's house, at 10.25am, on 27 May 2004. He identified two aerial photographs of the deceased's property and the neighbour's property with the dam.[8] He said the dam was 20 metres from the front gate of the deceased's property, but would be further than this following the blood trail from the gate.

61 Sergeant Bradley John Mason, interpreted the bloodstain patterns found at the crime scene, and examined the deceased's car. He noted that there was blood on the gate but not on the vegetation behind it, indicating that the gate was in the open position when the blood was deposited. With reference to the photographs, which depicted a zig-zag blood trail from the gate to the dam, he said the pattern was consistent with a person, who was bleeding, making their way from the gate and heading towards the dam.

62 Mr Mason opined that blood patterns on the deceased's car indicated that a minimum of five blows were delivered. There were stains in four discrete areas of the car, varying in height, meaning that, presuming that all blows were struck to the head, the person was near or low to the ground when they were delivered.**

**63 Dr Malcolm John Dodd, a consultant forensic pathologist at the Victorian Institute of Forensic Medicine, conducted an autopsy on the body of the deceased, at 5.30pm, on 27 May 2004.[9]

64 Upon an external examination of the deceased, he observed that the deceased had bilateral periol haematoma (black eyes); bleeding beneath the whites of both eyes; mobility of the cheeks and upper jaw, indicating fracture; several missing teeth; a fractured jaw; a large laceration or split through the top lip extending towards the right nostril area, with bruising underneath this area; and bruising, laceration and swelling to the lower lip and right cheek.

65 Dr Dodd observed a laceration over the deceased's right forehead, measuring 55mm in length, which was gaping and open to 10mm and there were abrasions on either side of this laceration. There were further injuries in the mid-forehead area, and a laceration measuring 30mm in length and gaping up to 5mm below the left eyebrow. Over the left forehead was a 60mm long laceration gaping to 10mm, with lacerations on either side of the split. The outer part of the left ear was bruised, swollen and had abrasions. Over the top of the scalp was patchy bruising, abrasions and two shallow lacerations covering an area of approximately 110mm by 80mm.

66 On the deceased's body, Dr Dodd observed bruising to the upper right chest and shoulder, and some injuries to the left arm and left leg.

67 An internal examination confirmed that the middle third of the deceased's face was fractured to the jaw. Almost the entire front of the deceased's forehead was fragmented with some parts depressed into the cranial cavity. The left skull was depressed by a fracture from the deceased's eye to his ear and also down the back of his head. The right side of the deceased's skull was similarly fractured. There were further fractures on the top of the skull, with fracture lines running down towards the back of his head. On removing the deceased's brain, Dr Dodd observed that the front third of the cranium was crushed. There was damage to the front of the brain and the brain was swollen and tense as a result of the trauma. He commented that the deceased's skull resembled a crushed Easter egg.

68 Dr Dodd concluded that the cause of death was repeated blunt force trauma to the head and face. He said it was difficult to estimate how many blows struck the deceased's head, as some sites may have been hit more than once, but he observed at least ten independent areas of trauma to the head and face. He said that the deceased's injuries were consistent with being hit with a piece of wood that was about 30cm long and 2.5 to 3cm in diameter, and said that extreme force would have to have been used to inflict the injuries suffered by the deceased.**

**69 The applicant gave evidence of his relationship with Julie Francis, which commenced in November or December 2001. Ms Francis broke up with him in November or December 2002, for about three to four months, but the relationship resumed, and lasted a further 10 or 11 months, before she ended it for a second time. He was very upset about that. It was after this break up that the applicant moved out of his parents' home, to Crest Drive, Rosebud. Ms Francis visited him there on four to six occasions, on two of which they had sexual intercourse. There was also an occasion after the second break up when they went to a city hotel together and were intimate. After the second break up, he commenced drinking regularly in order to push Ms Francis out of his mind.

70 The applicant admitted that, during the periods of separation, he sent Ms Francis more emails and messages than he normally would. He said there were days when he would not send any but such occasions would be followed by four or five messages on the next day. He said he did not make any contact with her after receiving the solicitor's letter, but he did see Ms Francis once afterwards at a pizza restaurant in Dromana. The applicant was about to enter the restaurant when he saw her seated inside with someone, so he went to the service station down the road instead. After he saw them leave, he went into the pizza restaurant.

71 On Wednesday, 26 May 2004, the applicant finished work and arrived home between 2.00 and 4.00am. He slept for a few hours, called in at his parents' house, then went to university until about 5.00 or 5.30pm. On his way home, he purchased six cans of pre-mixed alcohol. He said he arrived home at about 7.00pm. He ate dinner and consumed all of the cans. He said that he was depressed about not spending Ms Francis' birthday with her and that he had been brooding and thinking about it throughout the afternoon and evening. At 9.30pm, the applicant telephoned his brother who suggested that he call in. The applicant declined the offer as he did not want to drive because he had been drinking. He lay down but was unable to sleep because he was thinking about the fact that it was Ms Francis' birthday.

72 At around 3.00am he got into his car, intending to drive to his brother's house. By that stage, he had consumed the six cans of pre-mixed alcohol already mentioned and another six that he had at home. He drove towards the freeway (Ms Francis' house was on the way to the McCrae entrance) and decided to drive past her home, 'for nostalgic reasons', as it was her birthday. He thought about calling out, 'happy birthday, you slut' or 'bitch' as he went past. As he drove down her street, he saw the deceased's car leaving Ms Francis' house. He said he recognised the vehicle as he had seen it at the pizza restaurant earlier. The applicant was angry to see him there. The deceased drove off towards the freeway. When he saw the deceased's car again at the freeway entry, he decided to confront him as he wanted to have a 'man to man talk' with the deceased, and tell him how he had been treated by Ms Francis. He said he also developed the idea that her involvement with the deceased was the reason why she stopped seeing him.

73 The applicant attempted to attract the deceased's attention by flashing his car lights. The deceased slowed down, and the applicant drove past, deciding not to bother him because Ms Francis was already angry and to do so would only aggravate the situation. At that stage, he intended to leave the freeway at the Dromana exit to go to his brother's house, and berated himself for still thinking about Ms Francis. However, the deceased exited at the same point, and the applicant decided to follow him. The applicant again tried unsuccessfully to attract his attention by flashing his lights. The applicant followed him to the driveway of his home, and pulled up 10-20 seconds after the deceased who stopped his car in his driveway. The applicant pulled over on the other side of the road.

74 The deceased alighted from his car and shouted at him, 'What the fuck are you doing here?'. The applicant replied with words to the effect of, 'Do you want to know how that bitch treated me?' and 'I think you're part of taking my best friend away.' He said that the deceased and he started to throw punches at the same time, but that it was his punch that connected first. The applicant said he threw at least three punches at the deceased's face. The first broke his glasses, and hit him on the cheek. In cross-examination, he said the glasses flew backwards, but he was not sure how far. He then delivered another two punches, which hit the deceased's nose and chin. When shown the photographs of the deceased's injuries, the applicant admitted that the blows he delivered would have been hard.

75 After the initial scuffle, the applicant returned to his car, intending to leave. However, the deceased called out to him, 'Where the fuck are you going? You started this shit. Are you too pathetic to finish it?' The applicant replied, 'I suppose I did start this shit. Why don't you call the fucking cops on me? We've had a fight. It's enough. Leave it there.' At this point, the deceased said to him, 'You're so pathetic. Julie tells me you can't even get it up and Julie tells me that you've got a fucking small cock.' This upset the applicant because Ms Francis was the only person he had told about experiencing difficulty in having an erection and to whom he had expressed concern about the size of his penis. The deceased said to him, 'We're going to finish this fight' and came onto the roadway. At this point, the applicant picked up a stick he had seen lying on the ground near his car. He said he intended to use it to force the deceased back into his driveway so that he could leave. He was also angered by the insults and wanted the deceased to be quiet.

76 The applicant struck the deceased three times with the stick. He aimed at the deceased's forehead, as he thought this was the hardest part of the head and a blow delivered there would cause less damage than elsewhere. The applicant struck the deceased at least twice on the forehead and at least once on the shoulder. He agreed these would have been hard blows. He said he was angry, almost in a rage. As he hit the deceased, the applicant screamed at him, 'Shut up' or 'Shut the fuck up' at least twice. The applicant said that things happened very quickly, 'in a blur,' and he thought that he lost control and was not really thinking when he was swinging the stick. He believed that he swung the stick for about 10 to 15 seconds and at least eight times, but he did not connect every time.

77 While the applicant was swinging the stick, the deceased staggered back towards the gate, until he ended up crouched down on one knee against it, breathing heavily. The applicant could see blood flowing from his face, nose and lip, but did not attribute much significance to this, as he already had a blood nose from the earlier punches.

78 The applicant ran back to his car, threw the stick onto his passenger seat and drove off. Five or ten minutes later, he turned back and returned to the deceased's house, where he parked his car diagonally so that his headlights shone down the driveway. The deceased's car engine was running and had been moved, but the deceased could not be seen. The applicant saw a light in a nearby house and thought the deceased may have been in there. Whilst looking for the deceased, he saw his mobile telephone in the driveway. He picked it up so that he could call 000 as he did not have his own phone with him, but found that it could not be used.

79 The applicant then drove to the bungalow at his parents' house where his brother lived, because he needed a drink to calm down. On the way there he drove too fast and smashed one of his car wheels into the curb. However he managed to gain control and avoid a crash. Near Dromana, he threw the deceased's mobile phone out of the car window because he was frustrated that it did not work. When he arrived home, he felt 'dirty' about what he had done, so he burnt the stick and jumper he was wearing in the incinerator. He had sustained a cut on his hand when he had broken the deceased's glasses and had some blood on it, which he wiped with a towel. He had a drink then lay down on the couch and fell asleep.

80 On the following morning, the applicant took his car for some mechanical work that needed to be carried out and went to university. When he returned to his parents' house, at around 3.30pm, he started washing his car on the nature strip. He described this as a ritual that he performed whenever his car was returned from the mechanics.**

The grounds of the application for leave to appeal against conviction

81 The application is based upon the grounds set out in the applicant's Amended Full Statement of Grounds that:

1. The trial of the applicant miscarried as a result of the learned trial judge, in the course of the charge, detailing a number of inconsistencies between the applicant's evidence at trial and his record of interview in circumstances where:

(a) the learned prosecutor had not undertaken such a task in his final address;

(b) those inconsistencies had not been put to the applicant in cross-examination; and

(c) the jury were given no direction at all as to the use they could or could not make of inconsistencies and lies.

1. The trial of the applicant miscarried in that the jury were given no direction at all as to how the evidence of the applicant's intoxication could be used by them in considering the issue of intent.
2. In directing the jury as to the defence of provocation the learned trial judge erred in directing the jury that:

(a) the law required some proportionality/appropriate relationship between the provocation and what the person did in response to it;

(b) the law required that there was a reasonable possibility that an ordinary person might have reacted to the provocation in the same way that [the applicant] did; and

(c) that the jury had to consider whether any ordinary sober person with ordinary powers of self control might have intentionally reacted in such a violent way to the provocation.

82 In the course of delivering her charge to the jury, the trial judge outlined the evidence of the applicant. At one point, when dealing with his version of the circumstances under which he came to follow the deceased to his home, her Honour pointed out that -

In his record of interview he denied having been in Julie's street that night and told police that he just happened to see [the deceased's] car as he was driving on the freeway. You will remember he admitted in evidence that that was a lie. He said the reason he did not tell this to the police in the record of interview is because he knew that Julie had seen him a lot in her street and he did not think it would sound good that he was driving past her house at that time of night.

In his record of interview he variously estimated that he followed [the deceased] for somewhere between 20 and 35 minutes. He followed [the deceased] to his driveway and pulled up around 10 to 20 seconds after [the deceased] did. [The deceased] pulled up into his driveway, about five feet back from the gate. [The applicant] pulled up on the other side of the road, parallel to the road, partly on the gravel, but mostly on the road itself.

In evidence he told you that he got out of his car and that [the deceased] spoke first, shouting to him, "What the fuck are you doing here?" And he replied with words to the effect of, "Do you want to know how that bitch treated me?" and "I think you're part of taking my best friend away." He said that at this point he was at the rear of his car and [the deceased] was just out of the car. This may be contrasted with his record of interview where he said at a number of places, including Questions 171 and 211 to 2, where he said that he, [the applicant], was the first person to call out. At Question 171 he said, "I've jumped out and just gone, you know, 'You prick, you know, look what - look you know what happened'." At 211 and 212 in the record of interview he went, "I was like, you know, 'Who the fuck do you think you're ruining - you know, ruining any chance', et cetera. I wasn't very coherent. He knew I was there. He's like, 'What the fuck' and then, you know, it's all on for young and old." It is up to you what, if anything, you make of that.

He said in evidence that he and [the deceased] met on the road more towards where [the deceased] was parked. In cross-examination he agreed that there was no blood on the ground where he says the first altercation took place. On the other hand, in his record of interview he said that the punches occurred at or near the gate, not on the road.

When asked who threw the first punch, his evidence was, "it was like at the same time but it would've been me because I connected and he didn't". He said he threw at least three punches at [the deceased] using his fists. In his record of interview, he says he swung at most three times.

[The applicant] said that [the deceased] then said words to the effect of, "We're going to finish this fight" or, "I'm going to finish this fight" and came out on to the road a couple of steps and it was at this point that the [the applicant] picked up a stick he had seen lying on the ground near where he had exited his car. At this point I mention that in the record of interview, for example Questions 233 to 4, [the applicant] said that [the deceased] did not come on to the road at this stage, that he remained on the drive.

**84 The extension of an invitation to the jury in these proceedings to compare the applicant's statements to the police was, his counsel contended, properly to be regarded as a comment by the trial judge which conveyed the impression that her Honour regarded his evidence as unreliable. The prosecution had not engaged in any such exercise and a real possibility existed, he argued, that the jury was unduly influenced by what they reasonably could have perceived as the judge's assessment of the applicant's credibility.

85 As the relatively elaborate summary of the evidence and contentions advanced at the trial set out earlier hopefully makes clear, there was little controversy concerning the general circumstances under which the applicant confronted the deceased, although there was, of course, serious dispute concerning the applicant's intentions at the time. The central questions, which arose for determination, related to the events that took place once they met at the entrance to the deceased's home. With respect to such questions as to how he came to follow the deceased, his motives in doing so, what happened when they met, and with what intention did he strike the deceased, the credibility of the applicant was in issue throughout the proceeding. Of relevance, in that context, were both apparent and possible inconsistencies between the versions given to the police when he was interviewed and his evidence. He accepted at the trial, for example, that he had lied in his interview with respect to the circumstances under which he encountered the deceased on the night in question and gave a quite different description of events, which presented its own issues of plausibility and credibility.[10]

86 The judge introduced the presence of possible inconsistencies in a careful fashion, saying -**

I will turn then to [the applicant's] evidence. As I said this morning, you have the record of interview for [the applicant]. And because you have that both on the disc and in writing I am not going to go through and summarise that as a separate exercise. It is up to you to consider the extent to which you believe that the record of interview confirms or contradicts the oral evidence that he gave here in this court. I will mention some instances where in my perception there are inconsistencies between the two. Whether you agree that they are inconsistent and what, if anything, you make of them is entirely a matter for you. But if I mention those sorts of things it is just to save you some of the trawling through the record of interview task. But the exercise is by no means exhaustive because as I say you have the record of interview with you.

87 To the extent that her Honour directed the jury that statements in the interview could confirm the evidence given in the court by the applicant, this instruction was possibly overly favourable to him. However, it is not necessary in the present situation to expatiate on the uses to which such out of court statements could be put. Her instructions would undoubtedly have been understood by the jury as indicating that they could have regard to the statements made in the police interview as either supporting or detracting from the credibility of the applicant's evidence given before them. There was neither any unfairness in this process nor does it appear that it was unanticipated by the defence that the jury would almost certainly have regard to possible inconsistencies as references were made to the interview in the applicant's evidence-in-chief. Counsel, for example, was understandably conscious of the possible significance in the minds of jury members of the evidence that different versions had been given as to the circumstances under which the encounter took place at the gates of the deceased's property:

[COUNSEL] ... at some stage you were spoken to by police in a record of interview?---That's correct.

You were asked by the police officer whether you'd ever been - whether you were in Hillman Street that night and you told the police no?---Yes, I did.

Why did you tell the police no?---Because of all the - I knew Julie had seen me a lot in her road and I didn't, at the time I suppose, I didn't think it would sound good that I was driving past her house at that time of night.

[COUNSEL] We've heard evidence and you've told that the police arrived?---Yes.

You went off, you were taken off to the Hastings Police Station?---That's correct.

As we know at the Hastings Police Station you were - you took part in a record of interview?---Yes.

Which has been played to the court?---That's correct, yes.

88 The prosecutor, equally understandably, drew attention to the interview in the course of his cross-examination, in his case, for the purpose of challenging the applicant's credibility as a witness -

[PROSECUTOR] So your account there speaks the allegation of the small penis. Why didn't you tell the police at that time about this other matter of your impotence?---I was just, as I state, speaking in general terms, I was still pretty confused and shocked that I'd been told he been dies (sic), so I was obviously answering those questions in a confusing way with all the lights, you know, et cetera, and I was just trying to describe the incident in general terms, as it occurred and not piece by piece.

Well what I suggest to you is in that account that you give there, you're thinking quite clearly and carefully about what you're doing, what do you say to that?---No I was reacting.

You didn't, for example, say there that you lost your self control?---No I did not.

And what you're basically saying is, well fair enough, I started this and he's angry with me, well perhaps we should go back and have another fight?---I was over-analysing the situation at the time wondering how he could be dead.

But you were giving your account there, I suggest, and in that account you're giving a rationalisation or a rational statement of what was going through your mind and there's nothing there about you losing control, is there?---I do not state it there, no.

Again, in that account that you gave to the police, that I just read out, you had [the deceased] coming back towards you, didn't you?---Yes.

And that didn't occur at all, did it? He didn't come back towards you after you'd hit him in the face and he was down?---Yes he did.

89 These matters were taken up in re-examination -

[COUNSEL] You were asked some questions about question 228 of the record of interview, and you were asked, it was suggested to you that you didn't tell the police at 228 in words that you'd lost your self control. Remember being asked that?---Yes.

[COUNSEL] Would you just have a look at that answer, more particularly four lines from the bottom. Did you say to the police "Just like, you know, and I just, I'm just fucking shut up, like you know -" did you say that to the police?---Yes.

How did you say the words, when you said the words to [the deceased]: "Just fucking shut up." How many times did you say that to him?---At least twice.

And in what manner can you tell us, in what fashion you said that to him?---I screamed them to him.

Can you tell us how you did it, show - tell us how you did it?---High pitched screaming, sort of like a: "Just fucking shut up." You know, very loud.

In that particular answer that you gave it was suggested to you by the learned Crown prosecutor, that you didn't tell the police in that answer about the fact that you'd had trouble getting an erection?---Yes - no I didn't.

When you said, did you say to the police: "You know Julie tells me you've got a fucking small cock, blah, blah - blah, like insults." Did you say that to the police?---Yes.

What did you mean by: "- blah, blah, blah, like insults."?---That was the next insult he said to me. I just - instead of describing it there, it was just, I was generalising that he said more than one sort of insult to me.

**90 Attributing to the jury, a modicum of reasoning power and proper application to their task, each of the inconsistencies to which the judge adverted would, I am confident, have been apparent to them whether or not her Honour made any reference to the specific matters. It is reasonable to assume that they would have assessed the credibility of the applicant's evidence, in part by reference to what he had earlier told the police. Not only were they obviously entitled to do so, but it is such a normal part of human reasoning to consider the veracity or reliability of an individual's statement by reference to what the person earlier said, that it is virtually inevitable that they would have done so on this occasion.

91 The trial judge did nothing more than point, without further comment or emphasis, to some of the possible inconsistencies. What, if any, significance was to be attributed to them was left to the jury; who were appropriately instructed as to the burden and standard of proof in a criminal trial, and in particular, with respect to the drawing of inferences adverse to the accused. There was no complaint advanced concerning those instructions which it need only be said were expressed in conventional form. The judge's inclusion of the differing statements made by the applicant when interviewed and at the trial was obviously directed to ensuring that the jury took into account what her Honour regarded as, and were clearly, relevant matters in their considerations. In so far as her Honour's comparison could be described as a comment, it was one that she was entitled to make.[11]

92 The argument advanced on behalf of the applicant that the references by the trial judge constituted an attack upon his credit, and thereby compromised the conduct of a fair trial,[12] when considered against that background, lacks any merit.[13] This is not a case in which the trial judge has, through the making of some strongly worded or simply inappropriate comment directly or implicitly contaminated the trial, or in which there has been any attempt to usurp the function of the jury, or to influence their fact finding[14] save to the extent that relevant matters were drawn to their attention, if any thing unnecessarily.**

**93 Under this ground, the claim has been advanced that a miscarriage of justice can be seen to have occurred by reason of the inadequacy of the instructions given by the trial judge with respect to the significance of the consumption by the applicant of a substantial amount of alcohol in the hours prior to his confrontation with the deceased. Specifically, counsel argued, there was a failure by the judge to address the question of its possible impact upon the possession by the applicant of the requisite mens rea to constitute the crime of murder at the relevant time.

94 The excessive drinking of alcohol by the applicant in the period following the break up of his relationship with Ms Francis and, in particular, on the night of the deceased's death, was the subject of considerable emphasis throughout the proceeding. There was no challenge to his claim that he drank a large number of cans of Jim Beam bourbon and cola before leaving his home on the night in question and it was common ground that he was affected by it. The significance of that evidence was not lost on the jury, as the judge, during a break in the course of defence counsel's address, informed counsel that they had enquired -**

Was defendant (Mark) blood tested or breathalysed? If so, when, daytime, et cetera, what was the reading?

There can be little doubt that they were directing their minds, as could be reasonably expected, to the extent to which he may have been so affected at relevant times. After confirming that there was no evidence on that aspect, the trial judge said to counsel -

The next thing is that one matter I didn't raise with counsel yesterday, that I proposed to include in my charge, is some reference to intoxication or the possible use of intoxication. I was thinking of doing that irrespective of the question, but I think the question particularly highlights the need to do that.

In the context of the conscious voluntary acts, et cetera, I'm going to say that it's not in dispute that the actions were conscious voluntary ones, et cetera. It's not suggested, and there's no evidence that [the applicant] was so drunk that his actions were involuntary in the relevant legal sense. Then, when we come to the question of intent, I propose to do the fairly standard charge from the Charge Book about the use to which the jury can have regard to his intoxication in determining intent. If counsel want me to read it out, I'm happy to say what I propose to say.

95 Her Honour then read her proposed directions, at the conclusion of which the prosecutor pointed out that the emphasis in the Charge Book passage from which they had been drawn appeared to have been placed upon the capacity of an accused to form the necessary criminal intent as a consequence of the consumption of alcohol. This, it was said, had never arisen as an issue in the trial. Counsel for the applicant agreed and stated that the evidence concerning his client's drinking was -

... one of the things that they would need to look at when they look at all the circumstances as to what his state was. For example, I put into the debate his emotional state, those sorts of things. It's just one of the issues that can be looked at when they come to decide just how he was reacting and what he was doing out on the road that night.

... I would have thought, Your Honour, that it is relevant when one comes to consider his thought processes at the time. For example, would a perfectly sober man make decisions and reach decisions and act in a way that he acted as distinct from someone who had had 12 to 14 cans of alcohol.

HER HONOUR: ... No, there is part in this O'Connor[15] charge that deals with the fact that somebody might end up doing something when they've had alcohol that they wouldn't otherwise do.

[COUNSEL]: Yes, that's the part that I'm seeking to introduce.

[COUNSEL]: But it doesn't go as far as O'Connor, the thrust of O'Connor.

HER HONOUR: There is part of this - I'll just read out a part of this which may meet your concern as well as not offending what [the prosecutor] is concerned about. "A person's state of intoxication can vary greatly in degrees. He or she may be intoxicated to the degree that they do the act voluntarily and intentionally in a manner which in a sober state they would not be likely to act. Intoxication to this extent, although perhaps explanatory of the accused's conduct, hasn't destroyed his will nor precluded the formation of a relevant intent." That possibly - I don't know what you think. I see you're nodding, [prosecutor]. I don't know whether that's acceptable as - it just occurs to me that, particularly following the question, the jury are going to be wondering what they can do with all this evidence about his alcohol.

[PROSECUTOR]: Yes. In that context, Your Honour, an observation along those lines I wouldn't be opposed to.

**97 In due course, the judge instructed the jury in precisely those terms and no exception was taken.

98 Counsel for the applicant submitted in his final address -**

[The applicant] finds himself near her home, in the state that he's in, drunk, emotional, wondering what if and unfortunately he sees [the deceased] leaving Julie's house, and he makes the stupid and ultimately tragic decision to follow him.

True it is that he did cause him really serious injury, but it's the intention at the time, not looking back on it and saying, "Because the young man had really serious injury that must have been his intent at the time," you don't do it that way. What was his intention at the time?

He's out in a rural area. It's dark. Things happen quickly. It's not a question of [the applicant] inflicting one blow on [the deceased], going away, having a think about it, coming back, doing it again, having another think. It happens in seconds. Unfortunately that's the way these things go. He was in a rage. He's lashed out, and he committed a crime in doing so, the crime of manslaughter.

**99 As I have earlier indicated in the summary of evidence, from the time that he was first spoken to by the police, the applicant maintained that he was significantly affected by alcohol at the time of his confrontation of the deceased. This assertion was not only not disputed but was relied upon by both the prosecution and defence in the trial. The prosecutor contended that the applicant was drunk, jealous and angry and in that frame of mind viciously attacked the deceased with the intention of killing him or at least causing him really serious injury. On the other hand, the defence instructed the jury to consider what they submitted was the reasonable possibility that affected by alcohol and in a state of emotional turmoil, the applicant made the foolish decision to follow the deceased and confront him and then found himself in a situation with which he could not cope. His actions were not undertaken with murderous intent but in a situation of confusion to which the consumption of alcohol was a significant factor. The respective positions would, I consider, have been understood by the jury and well within ordinary human experience. They were appropriately instructed as to the burden and standard of proof in a criminal trial, the drawing of inferences and the elements of the crime of murder. They had ample evidence to assist them in the performance of their task, including the observation of the police members who examined the scene.[16] It was not suggested either, in his interview or in the trial at any stage, that the applicant did not make decisions or judgments or that he was not fully aware of his surroundings at the time. He claimed to have sufficient recall of the events and understanding of what was taking place to remember berating himself for his behaviour at the time which he recognised was, at minimum, foolish. He said that he recalled suggesting to the deceased that he could report the incident to the police, directing his mind to the placement of blows, considering the extent of the injuries sustained by the deceased, adverting to the possibility of securing assistance using the deceased's mobile phone and developing an appreciation of the possibility that an ambulance might be required. His statements, which I have set out at some length, indicate a remarkably clear recollection of a great deal of objectively demonstrable detail concerning such matters as locations and positions and extending to the make and model of the deceased's mobile phone and where it was subsequently thrown.

100 True it is that the judge did not instruct the jury to the general effect that care must be taken in drawing the inference that an individual affected by alcohol possessed a particular intention when performing actions under consideration and that, accordingly, they were to take the possible effect upon him of the consumption of alcohol when determining whether the prosecution had established the presence of the requisite intention in this case. However, it is difficult to see, how this could have adversely affected the applicant in the particular circumstances of his case. The effects upon human behaviour of the consumption of alcohol would, I confidently suggest, be well appreciated and easily recognised by virtually every adult member of our society. It is reasonable to assume that the members of a jury would recognise that individuals, under the influence of alcohol, may form intentions and act in fashions that would be foreign to their ordinary conduct and that, on the other hand, they may act thoughtlessly through an alcohol induced loss of inhibition, without the formation of a specific intention or the desire to achieve a particular result. There is no reason to suppose that the jury in the present matter would be exceptional in this respect, and particularly in a case in which it was, as I have mentioned, common ground that the applicant had consumed a substantial quantity of alcohol, where reliance was placed upon that evidence by both sides, and where they had asked 'was the defendant (Mark) blood tested or breathalysed'.

101 I would add before leaving this aspect that a judge's directions to a jury in a criminal trial are not to be regarded as a form of mantra, any deviation from which will cause a mistrial. The primary function of the judge at this level is to do his or her best to ensure that the jury will be properly equipped to perform theirs. They are also told to use their common sense and human experience when considering the situations with which they are confronted and it is reasonable to assume that, save in the rarest of situations, they do so.

102 The judge, who was concerned to deal appropriately with the evidence concerning the ingestion of alcohol by the applicant, drew the matter to the attention of the experienced counsel who appeared in the trial. She provided them with ample opportunity to present submissions concerning what instructions should be given and then directed the jury in a fashion that both counsel accepted was appropriate in the particular circumstances of the case. I am far from persuaded that her Honour was required, in order to avoid a possible miscarriage of justice, to do more.**

103 In the course of introducing the concept of provocation in her charge to the jury, the trial judge said that when considering the -

... possibility that an accused person did the act under the sudden loss of self-control due to provocation, you must consider whether there was some proportionality, or in other words, an appropriate relationship between the provocation and what the person did in response to it.

What the law requires is that you have to have regard to what response the ordinary person might have made to such provocation. If it is reasonably possible that an ordinary person with ordinary powers of self-control might have reacted to provocation of the same gravity in the same way in which [the applicant] reacted, then the Crown would have failed to prove beyond reasonable doubt that the accused was not acting under provocation.

**105 The jury was provided with a simply expressed hand-out that described the objective standard in terms of the question whether 'the ordinary sober person could have been provoked to do what Mr Hill did by provocation of such gravity as that felt by Mr Hill.'

106 Her Honour then addressed each of the elements to be considered by the jury when dealing with this matter. No exception was taken to her directions on this aspect.

107 However the argument has been advanced in this Court, that the references to proportionality in the charge imported a risk that the jury understood that there was some overarching or additional standard of that kind which had to be applied separate to and beyond the ordinary person test. This contention was based upon the decisions of this Court in some recent cases where it was found that the manner in which the judge instructed the jury did give rise to this risk.

108 As this Court stated quite recently in R v Margach[17] -**

Prior to the decision in Masciantonio, it was commonplace for trial judges to treat the ordinary person test as a standard of proportionality measured by the possible responses of an ordinary person similarly circumstanced, or, as was sometimes done, to introduce the test with a reference to the idea that the law was based upon the notion that a relationship of that kind had to be present.

"It has been said on a number of occasions that it is an element of provocation that the retaliation should be proportionate to the provocative incident. For example, in Mancini v Director of Public Prosecutions ..., Viscount Simon LC said: 'In short, the mode of resentment must bear a reasonable relationship to the provocation if the offence is to be reduced to manslaughter.' However, it is now well established ... that the question of proportionality is absorbed in the application of the test of the effect of the provocation upon the ordinary person."

Subsequently, Callaway JA in R v McKeown, made clear that it was not only unwise to refer to the concept of proportionality when introducing the ordinary person test, but likely to result in the misdirection of the jury, pointing to the risk that the jury might not regard references to proportionality as simply introductory but as constituting "an essential part of the objective element." (Footnotes omitted)

109 Eames JA in R v Barrett[18] made the point that one quite significant risk created by the introduction of a separate notion of proportionality was that the concentration of the jury might be placed upon the precise conduct of the accused rather than on the formation of an intention to kill or to cause really serious bodily injury to the

victim. Whilst this may create difficulties in some situations, it is hard to see how the distinction could operate to the disadvantage of the applicant in the present case and no such mechanism or reasoning process was suggested by counsel in his submissions. The further, and what I regard as more significant, danger from references to proportionality is that rather than being subsumed by the ordinary person test which incorporates the range of possible responses of a person with ordinary powers of self-control, some broad unstructured notion may be employed which, although expressed as an objective standard, may be strongly influenced by subjective considerations.

**110 The contention that the instructions of the judge in the present case may have misled the jury or created uncertainty or confusion as to the proper test to apply is misconceived. Although her Honour did refer to the need for some proportionality between the claimed provocative behaviour and the applicant's response to it, this was clearly done to provide a rationale for the ordinary person test which the jury was clearly instructed that they had to apply and there is, in the circumstances, no reason to suppose that they may have misunderstood these instructions. The handout with which they were provided made no reference whatsoever to the term 'proportionality.'

111 Considered in the context of the evidence and issues that arose in the trial, the judge's instructions left no margin for impermissible reasoning by the jury and reasonably interpreted could not constitute the basis for any concern that a miscarriage of justice may have occurred.

112 None of the grounds of the application having been made out, I would dismiss the application.**

113 I agree with Vincent JA, for the reasons he gives, that the application should be dismissed.

**114 I agree with Vincent JA, for the reasons he gives, that the application for leave to appeal should be dismissed.

[1] After hearing a plea in mitigation of penalty, the sentencing judge, on 2 May 2006, imposed a term of imprisonment of 17 years in respect of which a non-parole period of 12 years was fixed.

[2] It is necessary, in view of the grounds upon which reliance has been placed to support these applications, to set out a substantial part, but by no means all, of the evidence adduced at the applicant's trial and to indicate the thrust of the contentions advanced by the prosecution and defence respectively.

[3] Photographs were taken of the applicant's house and car (Exhibit P1).

[5] Exhibit P3. A transcript of the applicant's interview was also tendered as Exhibit P4.

[10] Among other questions, jury members may well have asked themselves - how likely is it that the applicant happened to be driving past Ms Francis' home at the precise time that the deceased left there.

[11] RPS v R [2000] HCA 3; (2000) 199 CLR 620, 637, [42] (Gaudron ACJ, Gummow, Kirby and Hayne JJ).

[12] See R v Mercer (1993) 67 A Crim R 91, 94 (Hunt CJ at CL).

[13] R v Mathe [2003] VSCA 165, [55] (Vincent JA); R v Mong [2002] VSCA 203; (2002) 5 VR 565, 573, [26] (Callaway JA).

[14] R v Martin [1960] SR (NSW) 286, 288, 290.

[15] R v O'Connor [1980] HCA 17; (1980) 146 CLR 64.

[16] They had, for example, the evidence of Sergeant Mason that, in his opinion, a number of five blows were delivered and presuming that they were struck to the head, the victim was near or low to the ground at the time.

[17] [2007] VSCA 110, [16]-[18].

[18] [2007] VSCA 95.