R v Ivanovic [2005] VSCA 238

EVIDENCE - Hearsay - Statements by accused to witness five months before killing as to his anxiety about his personal vulnerability, having regard to killings of acquaintances - Admissibility - Whether relevant to state of mind of accused at time when he shot deceased.

SENTENCE - Murder - Unarmed victim shot twice after "road rage" incident - Sentence of 20 years' imprisonment with non-parole period of 15 years held not manifestly excessive.

Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions

1 The applicant was convicted of murder by verdict of the jury on 26 September 2003. It was the second time he had stood trial. The first trial aborted after some eight days and before a jury verdict was given. The victim, Ivan Conabere, was a 38 year old man with whom the applicant had a confrontation on the roadway in front of the applicant's house in Cornwall Street, Brunswick. The applicant shot the deceased twice with an unregistered .32 Walther semi-automatic self-loading pistol. One shot was fatal. The incident was filmed by a closed circuit video camera installed at the applicant's home.

2 The shooting occurred on 8 January 2002 at about 5.45 p.m. Mr Conabere had been riding a 250cc motorcycle which he had acquired some six months earlier. He was still a learner rider and L-plates were affixed to the motorcycle. In order to gain experience it was his practice to go for rides accompanied by a friend, John Hair, who rode his own motorcycle. On this day, with Conabere in the lead, they had commenced their journey at Munro Street, Coburg. At the intersection of Rose Street a stop sign faced them. Both motorbikes turned left and travelled a couple of kilometres until they turned into Cornwall Street. Near the intersection of Rose Street, Hair first noticed a late model silver sports car. That vehicle was driven by the applicant. Although Hair did not see what caused him to do so Conabere had moved very close to the gutter after turning left at Rose Street and thereafter Conabere travelled behind the sports car, for a couple of kilometres until he followed it into Cornwall Street. As soon emerged, Conabere had apparently been upset by the driving of the applicant in the course of that journey, and was following the vehicle.

3 The applicant drove his car south in Cornwall Street until he reached his home, where he resided with his parents. The house was on his right hand side of the road. The applicant slowed his car and turned into the driveway. A roller gate barring entry to the driveway was placed at the fence-line of the house, but behind it was an open driveway; no garage was shown. As his vehicle approached the driveway the roller gate was activated and rolled up, so as to allow the vehicle to drive into the property. The vehicle came to rest however at about the fence-line, with a portion of its rear extending over the roadway of Cornwall Street. Conabere rode past the sports car and swung to the kerb to his right, stopping directly outside the applicant's home, approximately in line with the front gate and garden pathway to the house. Conabere attempted to apply the stand of the bike with his foot but was unable to achieve that result. He stood, either straddling the bike or having it rest against the back of his legs, and faced north, towards the applicant's vehicle.

4 Conabere, who was wearing a full face motorcycle helmet[1], gestured towards the applicant and apparently remonstrated with him. These events were captured by the closed circuit video camera which was set at a height more than two metres from the ground near the porch on the applicant's house. The video operated continuously and faced towards the front garden. The camera range was quite wide and took in the front gate and driveway areas of the house. Both sides of Cornwall Street were within its range. The video camera did not record sound and no witness gave evidence of having heard what was said between the two men.

5 The jury (and this Court) had the benefit of three separate video tapes relevant to the events[2]. The first tape showed the scene as recorded by the video over a period of several minutes before and after the shootings. It showed events which occurred for an extended period after the shooting. That video tape had not been enhanced. The second video tape edited the first tape by limiting the sequence shown to events occurring from the moment the applicant's car came into view until a period only a few minutes after the shooting. That segment was repeated some 13 times on the tape and each instance showed the scene with the benefit of different filters being applied by technicians. The final video tape showed the same period of time as shown on the second tape, and was again repeated some 13 times with different filters each time, but the film had been further edited so as to concentrate attention on the area where the two men came into contact. In effect, the third video by "cropping" the picture provided a close-up of the area proximate to the confrontation.

6 When he gestured towards the applicant (who could not be seen at this point) Conabere was then about 10 to 15 metres from the sports car. The applicant came into picture, walking with a measured pace, towards Conabere. As he did so the applicant held his right hand near his waist. The jury, with the benefit of hindsight, undoubtedly concluded that he was holding the gun at about waist level under his T-shirt (which was loose over his trousers). As the applicant reached within less than a metre of Conabere the motorcycle rider suddenly moved forward and pushed the applicant very firmly near his chest, causing the applicant to fall backwards and to land heavily on the roadway. As Conabere made that move the motor cycle fell to the ground and Conabere appeared to step or stumble over it. The applicant quickly rose from the ground and moved towards Conabere, who, in turn, appeared to make a move towards the applicant. The applicant held his hand in front of him, with his elbow bent. Although the gun was not clearly visible on the video footage it was not in dispute that at that moment the applicant fired the first shot into Conabere's body.

7 After the first shot Conabere appeared to stumble back a short step or so and the applicant moved forward and fired a second shot, whereupon Conabere fell to the ground. There had been about 3 to 4 seconds between the shots. Medical evidence disclosed that one bullet entered to the front of the lower abdomen, in the region of the left groin. That was fired within inches of the skin. This was not the fatal bullet. The other bullet entered higher to the body, on the abdomen, and by reason of it having damaged the liver and blood vessels it caused the deceased man to bleed to death. That bullet was fired in a direction very slightly from below to above, from front to back, and very slightly from left to right.

8 At trial the prosecutor submitted to the jury that the fatal shot was the second shot fired, not the first, and that it was fired at a time when the applicant would have known that the first shot had immobilised the victim, who was staggering backwards. One ground of appeal complained that it was not open for the jury to reach that conclusion, and that they ought to have been directed that they were bound to accept that it was the first shot which was the fatal one. I will return to that question later, but I now resume the narrative of the events at the scene.

9 Hair had ridden his motorbike past both Conabere and the applicant, as is seen on the video, until he went out of range to the right of camera. He told the jury that he slowed down and observed in his rear vision mirror Conabere pushing a man. He heard two gunshots as he commenced to do a U-turn. He rode back to the scene. As he rode back the applicant had stooped to pick up something from the ground near where the shooting had occurred, then walked back to his car and he commenced to reverse it on to the roadway. His passage was blocked by passing vehicles which had slowed down and he stopped his car and stepped out to the roadway. As he did so Hair stopped behind his car and faced the applicant.

10 Hair told the jury that the applicant said to him, "What are you looking at?", to which Hair replied, "You shot him". Hair rode on and the applicant walked through the open driveway gate and across the lawn and into his house. He returned using a mobile phone and went through the front gate. Hair returned to the scene and went to Conabere, who was lying on the nature strip. The applicant said to him "He had me by the throat. What did you expect me to do?", to which Hair said he replied, "Not shoot him".

11 A critical witness was Liam Armatolos, a 15 year old student who had ridden his bicycle past the scene where he saw two men having an argument. At the trial it appeared to be common ground that what Armatolos described were events that occurred after the applicant had got up from the ground after being pushed over. The witness can be seen on video riding quite swiftly past, just after the applicant had got back to his feet following the push from Conabere. Armatolos said he saw one man (who must have been Conabere) lunge forward, as though to punch the other man (the applicant). Armatolos then saw the applicant reach into his right-hand pocket and take out a gun, whereupon Armatolos heard two shots fired close together. He said he saw the victim lean over and grab his lower stomach area. The prosecutor invited the jury to conclude that that had happened after the first shot.

12 After Conabere had collapsed passers-by came to the scene, one of whom was Ms Kylie Ann Groen. She saw the applicant walk out from the house with his sister, who was speaking into a mobile phone relaying information about the state of health of Conabere to an emergency service. Groen asked the applicant what was going on. He appeared to her to be "quite agitated" and said, "I shot him, I shot him. What the fuck did you want me to do? It was self-defence. I've got it on video". She agreed with defence counsel that in her statement to police she had said that the applicant looked "very distressed and was very agitated" and agreed that those were her observations.

13 The applicant's sister, Maria Ivanovic, gave evidence that she had been in the house and heard her brother calling for her to call an ambulance and she saw him to be visibly shaken. The applicant's mother met her son at the door of the house and said he appeared to be very frightened. He said "Somebody grabbed me by the throat very hard".

14 An off-duty police officer, Sgt Gary Fischmann, who arrived after Conabere had fallen to the ground, stopped to render assistance and saw the applicant coming out from his house using a mobile telephone. The applicant told him there had been an accident. Fischmann, whose statement and evidence from the previous trial were read to the jury, said in his statement that the applicant "was quite agitated" and had said "Man, he grabbed me around the neck, so I shot him, what else could I do, man?" Under cross examination at the previous trial he agreed to a slightly different version, in which the applicant said, "Well what was I supposed to do. He grabbed me around the throat, man, so I pulled my gun out and shot him".

15 A friend of the applicant, Rocco Arico, came to the scene in response to a telephone call from the applicant. The applicant, so Arico said, looked stunned, and his eyes were wide open. Arico said he had never seen the applicant in that state before. The applicant told Arico that he had been attacked "by the neck", and had been thrown "to the floor". The applicant, according to Arico, added, "He threatened to kill me and then go inside and kill my family". The applicant asked Arico to get him out of there. The applicant had earlier moved his car into the driveway of his property and he and Arico departed the scene in Arico's vehicle. Before they departed Fischmann, who was in plain clothes but identified himself as a police officer, asked them to remain. After departing the scene the applicant hid the gun in a storm water drain. He later showed police where it could be found.

16 Police attended the scene and the applicant said to Sgt Peter Ward that he had shot the man in self-defence. He was arrested and taken to a police station.

17 In his evidence Arico agreed with defence counsel that in the months leading up to this shooting a couple of people whom the applicant knew had been shot. He agreed that the applicant was scared about that.

18 The applicant exercised his right not to participate in an interview or make a statement. He pleaded not guilty and did not give evidence at his trial. The defence conducted the case on the basis that the applicant had acted in self-defence, although counsel for the applicant unsuccessfully asked the judge to also leave the defence of provocation to the jury.

19 The learned trial judge sentenced the applicant to 20 years' imprisonment with a non-parole period of 15 years. The applicant sought leave to appeal against both conviction and sentence.

20 There were 12 grounds of appeal in the application for leave to appeal against conviction. Some may be conveniently taken together.

Grounds 1, 2, 6, 8, 9, 10: Directions concerning self-defence

21 Six of the grounds complained as to the balance and contents of the directions by the learned trial judge concerning self-defence. Those grounds are as follows:

"1. That the Learned Trial Judge's Charge to the Jury was so unbalanced and unfair as to deprive the Applicant of a fair trial.

2. The Learned Trial Judge failed to relate the facts to the law fairly or at all.

6. That the Learned Trial Judge's summing up of the law with respect to self defence was deficient and misleading to the Jury.

8. That the Learned Trial Judge failed to give the Jury any or any adequate direction with respect to the meaning of 'reasonable grounds' in the context of the objective/subjective mixed test with respect to the Applicant's belief.

9. That the Learned Trial Judge's summing up to the Jury by reference to the accused's state of fear constituted an invitation to speculate and detracted from the issue of fact as to whether or not the accused was in fear.

10. That the Learned Trial Judge failed to direct or adequately direct the Jury on the use they could make of the accused's utterances at the scene of the shooting with respect to inferences which may or may not be open from what he said to others.

22 No submissions were made to us with respect to grounds 8, 9 and 10, and ground 6, although not expressly referred to, was at best the subject of only the most general of submissions. Attention was focussed on the matters raised by grounds 1 and 2 and I take it that the other grounds, if not expressly, were effectively abandoned.

23 His Honour provided the jury with a single page summary sheet on which were set out the elements of murder and which isolated the matters which the Crown had to establish if it was to negative self-defence. The directions concerning self-defence occupied many pages of the charge. For the most part no complaint is made as to his Honour's directions as to the law. Complaint is made, however, that the charge was unbalanced both by virtue of specific passages and also in its overall structure. It is necessary to set out the passages about which specific complaint is made.

24 Having stated the legal components of self-defence, his Honour said that there are times, unfortunately, where people are attacked violently and kill in self-defence perfectly legitimately. His Honour continued:

"On the other hand the law is not stupid and the law does not treat as a lawful justification a killing out of all proportion to a threat posed. If someone simply hits you and you got out a pistol and shot them dead, that is not self-defence, and your commonsense tells you the same thing. It is self-defence if you believe, on reasonable grounds, that it is necessary to do what you do."

25 The italicised words in the above passage were the subject of exception at trial, it being said that his Honour applied a dichotomy which would or might appear to the jury to deny the applicant the benefit of the defence in this case. His Honour responded that he used the illustration because counsel had done so himself, and he adopted that illustration in order to emphasise the defence contention that this was not such a case. Counsel at trial acknowledged that he had indeed made that point and this passage was not pressed before us as an instance, in itself, of imbalance but as relevant to the overall assessment of the balance of the charge, which was said to contain instances of inappropriate dichotomies being employed by his Honour.

26 When dealing with the question whether the Crown had proved that there were no reasonable grounds for belief on the part of the applicant that it was necessary to do what he did (which was item (b) in the written guide/sheet he provided to the jury) his Honour continued the direction as follows:

"So, you look at the whole of the circumstances on Item (b). Were there reasonable grounds for the belief? Remember, you are still talking about the belief of the accused, not what he should have believed or not what someone else would have believed; what he did believe. The question then is: Has the prosecution proved beyond reasonable doubt that he had no reasonable grounds for that belief? And you look at the whole of the circumstances. You still take into account his state of mind, because, in considering all the circumstances of whether there were reasonable grounds, you take into account what the accused said later at the scene and his state of mind at the time of the fatal shooting, and you take into account all the surrounding circumstances in this case. Was the action that he took up a dark lane at night, faced with some unknown person, and he had no means of escape, and he was cornered? Or was it on an open, pleasant suburban street in broad daylight on a pleasant summer's evening? You take into account was the accused alone and outnumbered and cornered, or where there other persons there like members of the public available to be called on for help. You take into account what effort, if any, the accused made to find out the extent of the threat. You take into account that the deceased was larger than the accused and was wearing a helmet. You remember at one stage Mr Morgan-Payler said he could have punched him. Well he had a helmet on, so remember that fact.

27 Mr Richter submitted that his Honour employed in the italicised words a dichotomy that was bound to be applied adversely to the applicant. In their written submissions counsel contended that the passage "was calculated to cause the jury to reject out of hand the applicant's defence". When taking exception, at trial, to this and other passages of the charge senior counsel for the applicant expressly eschewed any contention that his Honour had consciously charged the jury in a manner designed to favour the prosecution. His complaint of imbalance, Mr Richter acknowledged, was one of unintended imbalance. The judge rejected the contention that the charge had been unbalanced, at all, or that the illustrations he gave the jury had set up unfair dichotomies.

28 Another instance of imbalance was said to arise in the following passage:

"You take into account that the deceased did not appear to be carrying any weapon. You heard Mr Richter say, "Who knows whether the deceased had a switchblade on him or not". Well, he did not appear to be on the outside. That is a matter for you to decide of course, whether he appeared to be or not. You take into account who walked up to who and the way they did and how far they did. The prosecution says this accused was in the deceased's face, not the other way around."

29 Counsel submitted that in this passage, in particular by the italicised words, the judge intruded his own opinion on the facts, by stating that the deceased did not appear to have a weapon. It was a critical issue whether a person in the position of the accused might have believed that it was necessary for him to act as he did, counsel submitted, and it was for the jury, not the judge, to consider whether the applicant might have believed that Mr Conabere was armed with a weapon. The judge's comment was an instance both of imbalance and also of the judge's intrusion into the task of the jury, so it was said.

30 The above passages occurred within a section of the charge which extended over many pages and which was directed to his Honour's direction that the jury had to consider "the whole of the circumstances" of the case. A very wide range of relevant or potentially relevant considerations were mentioned by the judge, some being matters on which the defence would place reliance and some being matters which the prosecution would want to emphasise.

31 The passage above, at [26], appeared at pages 484-5 of the transcript, and it was at 487 that the next passage appeared, which is said to reflect imbalance, that passage being preceded by discussion where the judge told the jury that they had to assess what belief the applicant might have held when he shot Mr Conabere. His Honour said they should consider what information he might have had in his head at the time, and he reminded the jury of the evidence of Arico about the applicant having learned of people whom he knew being shot. His Honour said that the jury would need to consider what connection there may have been between that information and what happened on this occasion. Having made those points his Honour said:

"And in judging that connection, if there is a connection, who were these people he knew who had got shot? Who shot them? In what circumstances? Was it on a dark night, cornered? What were they doing when they got shot? You do not know any of that. Then when you are asked to connect that with the fear, with what he saw on Cromwell Road, were those two people he knew who got shot confronted by an L-plater, a learner, a motor bike person, as the accused was on a 250 cc motor bike on a public street in broad daylight with members of the public around and room to move?

What is the connection between the fear he had with this event? I make no comment about any of that. You are the judges of the facts, not me. You have to judge the case on the evidence led before you. You have to judge whether this evidence about fear in the accused had any connection at all with what he did in Cornwall Road, and if so, what connection, remembering that the prosecution has to prove the accused had no reasonable grounds for his belief. The defence does not have to prove he had reasonable grounds."

32 The italicised passage was said to have presented a dichotomy which would disadvantage the defence and suggest to the jury that the very factual situation in this case was one where there could have been no threat perceived by the applicant. The illustration was unfair, it was said, because it presented a view of the facts which was predicated on the applicant having seen that there were L plates on the bike or having noticed the size of its engine, when there was no such evidence. Furthermore, it invited the jury to conclude that if the applicant had observed those things it ought to have had a bearing on his assessment of the seriousness of the situation he was in.

33 In the recent decision of Mule v. The Queen[3] the High Court considered the question of balance in directions. Although dealing with s.638 of the Criminal Code of Western Australia, which permitted the judge to make such observations upon the evidence as the judge thought fit, their Honours' observations addressed the common law position also, as follows:

"That provision distinguished between instructions as to the law applicable to the case, which were mandatory, and observations upon the evidence, which were discretionary. The discretion, of course, was to be exercised in accordance with established principles. One of those principles is that observations upon the evidence must be fair and balanced, but a judge is not prohibited from making an observation which is favourable to one side or the other if it is made clear that it is for the jury, and the jury alone, to decide the facts. Trial judges commonly make observations, sometimes forcefully, about the strength or weakness of particular aspects of the evidence in a case, but they should also make it clear that those observations are not intended to bind the jury, that the jury may or may not agree with them, and that the jurors are the sole judges of all factual issues bearing upon the ultimate verdict."

34 A distinction may be drawn between comments on facts which amount to the expression of the judge's opinion of the strengths or weaknesses of the evidence or the arguments of counsel, on the one hand, and the highlighting of the issues in the case by reference to the evidence in the case or by employment of factual analogies for that purpose, on the other hand. As Wilson, Dawson and Toohey, JJ. observed in Zecevic v. Director of Public Prosecutions (Victoria)[4] the trial judge should place the self-defence question in its factual setting "by identifying those considerations which may assist the jury to reach its conclusion". Their Honours counselled caution, so that the jury does not elevate matters of evidence to rules of law, but their Honours said:

"There is no rule which dictates the use which the jury must make of the evidence and the ultimate question is for it alone. The trial judge should also offer any such assistance by way of comment as is called for in the particular case."

35 Although a trial judge is not precluded from seeking to assist the jury by making comments on the facts of the case there are good reasons why a judge should be slow to do so. In RPS v. The Queen[5] Gaudron A-CJ, Gummow, Kirby and Hayne, JJ. observed (emphasis in original text):

"But although a trial judge may comment on the facts, the judge is not bound to do so except to the extent that the judge's other functions require it. Often, perhaps much more often than not, the safer course for a trial judge will be to make no comment on the facts beyond reminding the jury, in the course of identifying the issues before them, of the arguments of counsel."

36 It has long been the practice of trial judges in this State to eschew making comments on the facts lest such comments be taken, whether by the jury or by parties or observers at the trial, as reflecting the judge's opinion as to where the truth lay, thereby appearing to usurp the function of the jury or to unfairly tip the scales towards a particular outcome[6]. For the same reason judges ought be slow to illustrate issues in the trial by way of factual examples which bear close resemblance to disputed facts in the case and which might be taken to invite a conclusion adverse to the accused in that regard. Had I been the trial judge in this case such considerations might have been persuasive for me in deciding not to make some of the comments about which complaint is now made or, at least, not in the terms in which they were made. That conclusion does not, however, mean that the charge was, in fact, unbalanced or unfair but it dictates that close regard be given to the passages in the charge which were highlighted under these grounds of appeal.

37 The passages of the charge which I have highlighted above, in italics, occurred in the course of a direction which invited the jury to consider the whole of the circumstances of the case and in which the judge identified a range of factors to which they might have regard when assessing those circumstances. When he concluded this discussion, which occupied many pages of transcript, the judge said he had "just touched on some points to try and make the law sheet (sic) relevant to the addresses that you have heard, but I will summarise their full addresses . . .", and his Honour did so. As can be seen, within a few sentences of many of the passages highlighted above the learned trial judge expressly told the jury that the facts were for them to decide. Although that was not the case in every instance the jury had received a direction in traditional and strong terms to that effect at the start of the charge. Furthermore, the jury was reminded repeatedly throughout the charge that the facts were for them alone.

38 In my view, even if the jury were to have thought that the judge was expressing an opinion on the facts in any of the criticized passages, rather than merely inviting consideration of relevant topics, there could have been no risk that the jury would have taken any of his Honour's observations on the facts as amounting to directions of law or fact which they were bound to adopt. In this case, any prospect that the comments on the facts might have been misused by the jury was significantly reduced by virtue of the fact that the jury were in as good a position as the judge to observe the video tape. For example, the comment about the applicant not appearing to be carrying a weapon "on the outside", as he approached Mr Conabere, merely invited the jurors to consider that question for themselves, as, indeed, his Honour expressly said was their task, alone.

39 Similarly, the suggested unfair dichotomies which the judge employed were merely instances where the judge was seeking to assist the jury by identifying some of the competing considerations which they might take into account when assessing self-defence. His Honour told the jury, and repeated by way of re-direction, that they had to assess the defence by taking into account the whole of the circumstances of the case, as they found those circumstances to be. In highlighting factors which a jury might take into account in that way a trial judge faces a dilemma. On the one hand, the use by way of illustration of factors that bear no possible relevance or connection to the case can be confusing to a jury. On the other hand, if the judge chose factors which were close to the circumstances of the case complaint might be made that the charge was unbalanced, by inviting critical scrutiny on a topic which the defence would prefer not to receive close or repeated analysis. A complaint of imbalance is not made good simply because the judge, when identifying relevant issues, raised questions which the defence would prefer not highlighted.

40 When a complaint is made of imbalance the charge must be read as a whole, having regard to the strengths of the respective cases[7]. Whether there was a lack of balance is often a matter of impression and appeal judges must have regard to the fact that we consider the matter divorced from the atmosphere of the trial[8]. The complaint of imbalance raised by these grounds was said to be added to by other grounds, in particular grounds 4 and 7. I have, therefore, also considered the complaints made under those grounds (which I later address in this judgment) when considering the present grounds.

41 Having carefully weighed the arguments advanced by counsel for the applicant I have reached a firm conclusion that the complaint of imbalance, whether identified within the highlighted passages or more generally in the charge, is without substance. In my opinion, neither individually nor by force of the cumulative effect of any grounds has error been demonstrated in the directions given as to self-defence. Grounds 1, 2, 6, 8, 9 and 10 have not been made out.

Ground 3: Exclusion of evidence of utterances by the applicant to Mr Arico

42 Ground 3 reads:

"3. That the Learned Trial Judge erred in ruling that utterances by the applicant prior to the day of the shooting with respect to his state of fear were inadmissible as hearsay."

43 As noted earlier, evidence was led from Rocco Arico of statements which he said had been made on the day of the shooting by the applicant. Counsel for the applicant sought to lead additional evidence relating to statements said to have been made by the applicant at a much earlier time. Evidence was led from Arico that the applicant travelled to America "around September 2001" and the prosecutor then objected to a question inviting Arico to give evidence of statements made by the applicant to Arico "before taking off to New York".

44 In the absence of the jury, defence counsel told his Honour that Arico would say that the applicant told him, before he left Australia "that he had been frightened"; "that he believed that people were after him"; "that his life had been threatened"; "that he was afraid for his life"; "that if anything happened to him to look after his family"; that when he came back from the USA "he would install a surveillance security system"; and "that when he came back from the States at about the middle of October that he did indeed install a security system".

45 Counsel submitted that the evidence was relevant to the state of mind of the applicant when he shot Mr Conabere on 8 January 2002. Mr Richter submitted that the evidence was admissible on principles discussed in Walton v. The Queen[9], as being relevant to a fact in issue, the state of mind of the applicant.

46 His Honour ruled that the intended use of the evidence was to prove the truth of the assertions by the applicant and that the evidence was inadmissible being both hearsay and self serving in character.

47 Mr Richter submitted to this Court that the evidence was not sought to be led as to the truth of what had been uttered, but as evidence being relevant to a fact in issue, namely, whether the applicant had been in a state of fear when he shot Mr Conabere. Thus, so it is said, the fact that he said he was in fear five months before this shooting, was evidence which the jury might use when considering whether he was in fear on this occasion.

48 In my opinion, no statement of principle in Walton rendered the proposed evidence admissible in this case. The critical evidence in Walton was relevant to the issue whether the accused had met the victim on the night she was killed. One witness had said the accused told her that he intended to have such a meeting and the disputed evidence related to statements by the victim of her intention to meet the accused that night. The reported statements were made to the witnesses by the victim on the same day she was killed or on the previous day. As Mason, C.J held, the evidence was admissible as evidence of the maker's knowledge or state of mind, "when he made the statement in a case where such knowledge or state of mind is a fact in issue or a fact relevant to a fact in issue"[10]. It was original evidence "because the making of the statement has independent evidentiary value in proving the author's intentions, those intentions being a fact in issue or a fact relevant to a fact in issue"[11]. The evidence of statements made by the suggested participants that a meeting was intended bears upon the probability that such a meeting took place[12].

49 Wilson, Dawson and Toohey, JJ. held[13] that when a person's state of mind is relevant then evidence tending to prove that fact is admissible. Their Honours drew a distinction between, on the one hand, evidence of conduct, including statements made, which is tendered as a relevant fact or a fact relevant to a fact in issue and, on the other hand, "evidence of conduct which has no probative value other than as an assertion and is therefore not admissible". In the first category fell statements of what a person had said which were led "for the purpose of founding an inference concerning that person's state of mind". The reliability of such statements, their Honours held, derives ordinarily from the fact that they are reactive and made in a context that makes their reliability more probable.

50 The disputed evidence in this case, however, was incapable of being used as tending to prove a fact in issue. The fact that the applicant made such assertions to Arico five months earlier concerning a potential threat from an unidentified person, for reasons which were also unidentified, was simply incapable of bearing on the probabilities that the applicant's state of mind when confronted by Conabere was one of fear. No statement had been made by the applicant that any fear which he expressed to Arico five months earlier was in any way relevant to his state of mind when he was confronted by Conabere. Indeed, he made no statement to anyone that he was fearful when he shot Conabere[14]. The connection sought to be made by counsel between the statements to Arico five months earlier and the events at Cornwall Street was mere speculation.

51 In my opinion, his Honour's ruling was correct and this ground fails.

Ground 4: Speculation by prosecutor

52 This ground reads:

"4. That the Learned Trial Judge was in error in refusing to stop the Crown Prosecutor from encouraging speculation by the Jury."

53 The complaint here related to the prosecutor's submission in his final address that "it was very much on the cards" that the reason Mr Conabere pushed the applicant was that at the last minute he "became well aware that the man in the sports car that he was confronting was armed with a pistol" or "suddenly got a hell of a fright and sees the need for some pretty urgent action". These submissions were said to be no more than impermissible speculation, because there was no evidentiary basis for the assertion.

54 The prosecutor was inviting the jury to draw an inference from evidence which, he contended, demonstrated the improbability that Mr Conabere would have reacted as he did unless he was alarmed and saw himself in peril. In my opinion, that inference was plainly open if the jury chose to interpret the evidence in the way the prosecutor suggested. The proposition, if accepted, was not based on mere speculation but would be an inference open to be drawn from the evidence to which the prosecutor directed attention and as to which he invited the jury to make findings of fact that were open to be made. It is unnecessary to set that evidence out in detail. In my opinion, the jury were in as good a position as the prosecutor to consider what weight to attach to the proposition he advanced. No direction was required, and this ground fails.

Ground 5: Withdrawal of provocation from the jury

55 Ground 5 reads:

"5. That the Learned Trial Judge was in error in withdrawing the issue of provocation from the Jury."

56 At the outset of the charge the judge handed the members of the jury a single page document which listed the elements of the offence of murder. The judge had ruled that the defence of provocation was not open, rejecting the submissions made by counsel for the applicant, but he retained in the written document, as one of the elements which had to be proved by the Crown, a statement that one element was that the killing was "without lawful excuse (not under provocation)". Mr Richter submitted to his Honour that that element should be omitted entirely, given the ruling, but his Honour declined to do so. When his Honour came to that item in his directions on the elements of murder the judge said of provocation "You have probably heard of the word 'provocation', ladies and gentlemen. There is no issue in this case about element number 5, so you need not be troubled about that any further."

57 In the afternoon of the first day of the judge's charge (having commenced in the morning) the jury delivered a question to the judge which read:

"Murder is committed when a person, item 5, without lawful excuse (not under provocation). Could his Honour re-state why this item is not in dispute?"

58 After discussing the question with counsel the judge directed the jury that the legal concept of provocation was quite distinct from, and had nothing to do with, the legal concept of self-defence. He directed that it was his job to decide whether as a matter of law provocation arose, and he had ruled that it did not. The reason he so ruled, he said, was that provocation was quite a limited technical concept and did not mean the same in law as it might in ordinary usage, and provocation, he said, did not arise in this case.

59 On appeal, counsel submitted that provocation ought to have been left to the jury and the jury question, so it was said, highlighted that the facts in the case did give rise to the defence.

60 In rejecting the application to leave provocation the judge ruled that there was no admissible evidence that would support findings by the jury in favour of the accused either as to the subjective component or the objective component relevant to the defence. As to the subjective question, the judge ruled that the evidence did not support the proposition that the applicant had lost self-control. He held that the evidence, if anything, tended to prove the contrary. His Honour held, too, that there was no basis on which the objective component of the test for provocation could arise.

61 In reaching his conclusion that the defence could not arise on the evidence his Honour said that he decided that question by taking the most favourable view of the evidence for the accused and had regard to the burden of proof being on the prosecution. Counsel submitted that his Honour had not in fact taken the evidence at its highest in favour of the accused, but had based his assessment on his own subjective interpretation of the evidence on the video tape, not allowing for the fact that the jury might reasonably have interpreted that evidence and the oral evidence in a more favourable light. Mr Croucher, who argued this question before us, appropriately cautioned the court not to make the same error which he said the judge had made, of deciding the question by reference to a subjective and debatable interpretation of what the video tape showed.

62 In the joint judgment in Masciantonio v. The Queen[15] the subjective component of the provocation defence was stated in these terms:

"The provocation must actually cause the accused to lose self-control and the accused must act while deprived of self-control before he has had the opportunity to regain his composure".

63 As an examination of the case law concerning the defence of provocation indicates, more often than not the debate about whether there was material to justify the defence being left to the jury revolved around the objective component of the test, not the subjective factor discussed above. Very often the violence of the fatal act performed by the accused in itself provided some evidence that he had in fact lost self-control when the death occurred. In the present case the judge very confidently concluded that it was not open to the jury, on the evidence, to entertain a reasonable doubt whether the applicant, in forming the intention to kill or to do really serious injury to Mr Conabere and acting upon that intention, acted while deprived of self-control.

64 The factors highlighted by the judge on this question were "the cool and deliberate conduct of the accused (including picking up an object from the roadway immediately after the second shot), his measured driving (reversing) from the scene, and his statements to persons after the shooting." His Honour also noted that the applicant had made no statement to police at the scene, nor had he given evidence, to the effect that he had lost self control.

65 Mr Croucher submitted that those factors might well have been viewed differently by the jury. The learned judge, counsel submitted, had determined the question by virtue of his own analysis of the evidence rather than by addressing whether there was another view of that evidence, taken at its highest in favour of the applicant, that was capable of supporting the conclusion that the applicant had lost self-control.

66 Mr Croucher submitted that the dangers of the judge unconsciously usurping the role of the jury as fact finder and of reaching concluded views of the evidence, rather than considering what view it was open to a jury to take of that evidence, were increased, not lessened by virtue of the existence of the video tape. What was a mere subjective interpretation of what was on the video tape might be treated as incontrovertible evidence that the applicant had retained self-control.

67 I have regard to those cautionary warnings. As I have earlier noted, there was some evidence from observers at the scene to the effect that the applicant appeared agitated or distressed after the shooting. There was also some evidence that he had responded to a threat to kill himself and his family. Provocation may arise due to a sudden and temporary loss of self control by virtue of emotions of fear or panic, rather than of anger or resentment[16]. It is not essential that the accused had at some time stated that he had lost self-control[17]. Indeed, where the evidence permitted the inference to be drawn, the jury could conclude that there had been a loss of self control even though the accused denied that he had lost his temper[18].

68 I keep in mind, too, that the video tape is in black and white, does not record sound and does not present a close-up of the faces of the protagonists. Additionally, the view of the confrontation was partially obstructed by a 1.54 metre timber front fence between the camera and the footpath and by garden foliage. Furthermore, the back of Conabere partially blocked the view of the applicant just at the moment of the shots and, finally, the camera was about 12-15 metres from the two men. Allowing for all those matters, however, the fact remains that the video tape provides very powerful evidence that the applicant had not lost self control.

69 The seductive capacity of the video tape to convert what is a subjective assessment into an undeniable objective finding is very real. A viewing suggests that the following matters are beyond doubt: that it was the applicant who first advanced towards the deceased; that as he did so he had his hand in a position where he had his gun (whether hidden from view or not being fully hidden is a matter capable of dispute); that after the shootings he stooped to pick up something from the ground (the jury might well have concluded that he had retrieved an ejected casing). Mr Richter conceded that the applicant must have removed the safety catch either before he got out of the car or as he was walking over to Mr Conabere. Additionally, the movements of the applicant after the shooting appear to be very calm. He walked back to his car, reversed it, then walked to his house, calmly used a mobile phone, moved his car into the property, and walked back and forward between his house and the footpath, before departing with Arico (and having the presence of mind to hide his gun).

70 Those conclusions seem irresistible, but whether they were or were not they had to be weighed against the additional evidence that he appeared to have been agitated immediately after the shooting. In any event, the life experience of individual jurors might well lead them to conclude that the behaviour shown on video tape was not inconsistent with a person who had lost self-control. The risk of judges usurping the role of a jury is ever present in such cases, and part of that risk is an unconscious assumption that the judge's understanding as to how a person might look and act when he is or had been out of control would be bound to be shared by all jurors.

71 In my opinion, on the most favourable view of the evidence for the applicant it was open to the jury to have concluded that the applicant had lost self-control when he fired the shots, notwithstanding the appearance on the video tape that he was quite calm and in control at all times. The fact that he had been pushed over with some force, while outside his own home, and after being apparently followed and then abused for some deficiency in his driving performance might have been regarded by a jury as rendering it more likely that the applicant did lose his self control, and they might have concluded that notwithstanding his behaviour immediately after the shooting, there was a reasonable doubt as to the contention that he had not lost self-control at the time of the shooting.

72 In my opinion, therefore, his Honour was in error to have concluded that it was not open to the jury to have been satisfied with respect to the subjective component of provocation. That then leads us to the objective test.

73 As stated in Masciantonio:

"[T]he question is whether the provocation, measured in gravity by reference to the personal situation of the accused, could have caused an ordinary person to form an intention to kill or do grievous bodily harm and to act upon that intention, as the accused did, so as to give effect to it".[19]

74 The test for the trial judge, in turn, as stated by Brooking, J.A. in R. v. Parsons[20] is as follows:

"Provocation should be withdrawn from the jury where no reasonable jury, properly instructed and having regard to the version of events most favourable to the accused which is suggested by material in the evidence, could have failed to be satisfied beyond reasonable doubt that the killing was unprovoked in the relevant sense".

75 The test for the appeal court has been stated in slightly different language, but to the same effect. In Parker v. The Queen[21] Dixon, C.J. said the question for the appeal court was "whether by any possibility the jury might not unreasonably discover in the material before them enough to enable them to find a case of provocation". The Chief Justice added: "The selection and evaluation of the facts and factors upon which that conclusion would be based would be for the jury and it would not matter what qualifying or opposing considerations the Court might see: they would not matter because the question was, ex hypothesi, one for the jury and not for the Court". In Moffa v. The Queen[22] Mason J. after posing a similar test answered the question in these terms: "I am not prepared to say that no reasonable man could conclude that an ordinary man would be so deprived of his power of self-control by what occurred as to form an intention to kill or do grievous bodily harm to his wife".

76 Once again, the evidence must be taken at its highest in favour of the applicant. If the provocation was taken to be merely that the applicant was subjected to abuse about his driving and was then sat on his back by a shove from Mr Conabere then it could not possibly be that an ordinary person might have responded to that provocation by forming a murderous intention and shooting dead the provoker. The evidence for provocation must be taken to be more substantial, however, if full weight is to be given to it in the applicant's favour, as the judge was obliged to have allowed.

77 Thus, taken at its highest the evidence could support the conclusion that the deceased was in the company (albeit, not very proximate) of another motorbike rider; that he abused the applicant; he gesticulated towards him in a manner which might have been consistent with "calling him out"; that he was protected and masked by a helmet, and was physically taller than the applicant; that he threatened to kill the applicant and his family, as the applicant approached; that he violently shoved the applicant to the ground; and once more he moved towards the applicant as though to assault him further when the applicant had just regained his feet.

78 The gravity of the provocative conduct must be assessed by reference to and in the context of the applicant's history, characteristics and attributes, including his age, ethnicity, gender, physical characteristics[23]. The seriousness of the provocation to him must be judged in the context that these events occurred outside his home, and in public view. Although a different conclusion as to this may seem far more consistent with the evidence, it must also be allowed, in my opinion, that notwithstanding that he was armed the applicant may have been fearful of the deceased man.

79 Confronted with provocation aggravated to that extent, might the ordinary person in the position of the applicant have lost self control to such a degree as to form the relevant murderous intention and to have acted on it as he did? In considering that question I keep to the forefront the observation of McHugh, J. in Masciantonio[24] that, "Once there is evidence of provocative conduct, the evaluation of that conduct and its effect on an ordinary person is almost invariably a question for the jury. A judge who takes the issue away from the jury assumes a grave responsibility". The function of the appeal court, however, is somewhat different. As Brennan, Deane, Dawson and Gaudron, JJ. observed in Masciantonio:[25]

"The question is the same when a trial judge is considering whether or not to leave provocation to the jury as it is when an appellate court is considering whether it ought to have been left, but as a matter of practicality a trial judge is likely to lean towards leaving provocation if he or she can. As was observed by the Privy Council in Lee Chun-Chuen v. The Queen [1963] AC 220 at 230; see also Moffa v. The Queen [1977] HCA 14; (1977) 138 CLR 601 at 617 'there is a practical difference between the approach of a trial judge and that of an appellate court. A judge is naturally very reluctant to withdraw from a jury any issue that should properly be left to them and he is therefore likely to tilt the balance in favour of the defence. An appellate court must apply the test with as much exactitude as the circumstances permit.'"

80 Even giving the provocation the full force and scope that I have discussed above, I do not consider that an ordinary person of the applicant's age could have so reacted to the provocation as to form the intention to kill or cause really serious bodily injury and to act on that intention by firing a gun twice into the torso at point blank range. That is so whether it was the first or the second shot that was fatal, and it remains my conclusion notwithstanding that it is taken, as it must be, that the deceased actually did utter the threats to kill the applicant and his family, about which the applicant chose only to confide in Mr Arico.

81 Whilst it is the formation of the murderous intention and the carrying out of that intention that are the important considerations for the test, rather than the question whether an ordinary person might adopt the precise means adopted by the applicant to carry out his intention[26] the use of a gun remains relevant to the application of the objective test, in my opinion. As held by Barwick, C.J. in Johnson v. The Queen[27] it is not a separate requirement or element of the defence that the act of the accused in response be proportionate to the provocation. Nonetheless, the Chief Justice accepted that it remained relevant to take into account "the mode and extent of retaliation" when determining whether an ordinary person, subject to like acts of provocation in all the circumstances in which the applicant then stood, would have lost self-control to doing something akin to what he did.

82 In my opinion, when regard is had to the objective component of the test for provocation the judge was right not to leave provocation to the jury.

Ground 7: Directions as to the fatal shot

83 This ground reads:

"7. That the Learned Trial Judge erred in refusing to give judicial imprimatur to the propositions put to the Jury by the defence with respect to the manner in which they should regard the firing of the first shot."

84 The prosecutor took the jury, frame by frame, through the video tape and submitted to them that it demonstrated that the angle at which the applicant was holding his arm and the respective movements of the two men supported the conclusion that the fatal shot, which had been fired substantially higher on the body of the deceased, was the second shot. On that basis he constructed an argument that the applicant must have known that he did not have to act in self-defence when he fired the fatal shot "into the body of an already injured and disabled man". Mr Richter contended that it was not open on the evidence for the jury to have so concluded, and the judge ought, therefore, to have directed them, that given that there must be reasonable doubt as to which was the fatal shot they must take it as being the case that it was the first shot that was fatal.

85 The unique advantage the jury had of the video tape of the shooting meant that the competing arguments were no more than counsels' respective interpretation of the very images that the jury also saw. I am not persuaded that it was not open to a jury to have reached the conclusion beyond reasonable doubt for which the prosecutor contended and that, in my opinion, is the end of this ground of appeal. These were matters of mere argument on which the jury members could reach their own conclusions.

86 The prosecutor advanced the theory as to the second shot being the fatal one because, as he said, that finding would mean that the issues of self-defence could not even be an issue for debate. It was clear, however, that he was not conceding that were they to have a reasonable doubt as to which shot was the fatal one then self-defence had not been negatived. Mr Richter submitted that the order in which the fatal shot was fired was a fact so critical to the verdict in the case that the jury had to receive discrete directions as to either possibility. If the fatal shot may have been the first then they should have been directed, he submitted, that the issues relevant to self-defence were to be judged by the events up to that shot, and not by reference to what occurred when he fired the second shot. In the circumstances of this case, however, and in particular having regard to the fact of the discharge of the two bullets occurring within such a short time frame, I do not consider that the sequence in which the fatal shot was fired required that the jury be directed to approach their analysis upon different bases depending on which shot they held to be the fatal one[28]. In any event, the complaint under this ground concerns the appropriateness of the submission made by the prosecutor and I am not persuaded that his submission was inappropriate.

87 This ground fails.

Other grounds

88 The remaining grounds were as follows:

"11. That the Learned Trial Judge should have directed the Jury that there was no evidence of consciousness of guilt of murder upon which they could act.

12. The verdict of the Jury was unsafe and unsatisfactory."

89 Ground 11 was abandoned and ground 12 was relied on only by way of complaint that even if the individual grounds did not of themselves justify the overturning of the conviction then the totality of the errors about which complaint was made under those grounds rendered the verdict unsafe and unsatisfactory. For the reasons given, none of the grounds has succeeded, in my opinion, and the verdict is not unsafe and unsatisfactory.

Application for leave to appeal against sentence

90 As to the application for leave to appeal against the sentence of 20 years imprisonment with a non-parole period of 15 years, Ground 4 asserted that the judge penalized the applicant for the conduct of his defence.

91 In his sentencing remarks the judge said that the applicant had made false statements to persons at the scene that he had been attacked by the deceased and had acted in self-defence. His Honour added that, "At trial you sought to perpetrate another falsity: that you were in fear for other reasons of the deceased, the L-plater on his 250 cc motorbike". Additionally, the judge noted that the applicant had said nothing to police at the scene about being in fear of the deceased. Mr Croucher submitted that those statements raised irrelevant matters and penalised the applicant for asserting, through counsel, that he had been in fear at the time.

92 In my opinion, no sentencing error is disclosed in those passages. His Honour expressly said that he was not penalising the applicant for exercising his right not to make a statement to police. Read in context, in these passages his Honour was simply concluding that there was no basis for the suggestion that the shooting had occurred when the applicant was in a state of fear. That was a finding as to the effect of the verdict which was open to the judge. He was entitled to have regard to that matter, in my opinion.

93 Grounds 2 and 3 complained as to the facts on which his Honour based his sentence. Once again, the phrase "sought to perpetrate another falsity: that you were in fear for other reasons of the deceased" was highlighted. It was said that it was not open to find that the applicant was not in fear. In my view, whilst there was some limited evidence that the applicant had been fearful at the time of the shooting of his acquaintances, and thereafter, it was perfectly open to his Honour to conclude that the applicant had not acted on this day by virtue of any fear arising from those earlier events. No error is disclosed in that finding.

94 It was also said that his Honour failed to properly weigh the contribution of the deceased to his own death. His Honour held that "all the deceased did was remonstrate with you and push you over. There was no threat whatsoever to your life or the safety of your person". Mr Croucher submitted that it was the deceased who had initiated the confrontation, not the applicant. In my view, it was open to his Honour to reject Arico's evidence and to conclude that no threat had in fact been made by the deceased. The evidence of Arico, at best, constituted self-serving statements by the applicant, said to Arico alone. Furthermore, Arico when giving evidence in chief did not mention being told of the threats by the applicant. He was cross-examined by Mr Richter who read to him his evidence at the first trial, which defence counsel suggested the witness had apparently forgotten. Arico then adopted his earlier evidence that the applicant had said that the deceased man had threatened to kill him and then "go inside and kill my family". It was highly improbable evidence and the judge was not bound to accept its truth for sentencing purposes. The role of the applicant was not unduly elevated nor that of the deceased unduly diminished by the judge, in my view.

95 The final ground complained that the sentence was manifestly excessive. It was submitted that the shooting was spontaneous; the applicant was a young man aged 26 at date of the offence; and he had no prior convictions for violence. The report of a psychologist placed the applicant's IQ at 78, placing him at the top end of borderline range. Mr Watson-Munro opined that he had difficulty in critically evaluating problem situations when emotional. It was said that he came from a family in which there was an aggressive, occasionally violent, alcoholic father. He had been diagnosed as suffering long-term depression and low self-esteem.

96 His Honour took the applicant's low IQ into account but did not mention those other mitigatory matters or make a finding as to the report of Mr Watson-Munro. Mr Croucher submitted that the judge failed to give any weight to the fact that the applicant had advised prosecution authorities that he was willing to plead guilty to manslaughter. I agree with Mr Hillman that that is not a matter carrying weight. The fact is he was convicted of murder, and it has not been shown that his willingness to plead to a lesser charge ought to have been regarded as a sign of remorse justifying a lesser sentence.

97 His Honour gave particular weight to factors of general and specific deterrence, to the fact that the victim was an innocent man and that his death had had a profound effect on his family. The applicant had 16 convictions arising out of six prior court appearances for driving offences. They included two sentences of imprisonment but suspended on both occasions. Those convictions were not given prominence by his Honour.

98 I am not persuaded that the learned sentencing judge gave undue weight to the identified mitigatory factors. The fact that the applicant was armed with a concealed, unlicensed gun, and walked to a confrontation knowing that the safety catch had been released, with it cocked and ready to fire, when in a quiet suburban street, was a particularly serious feature of the offence. Such conduct must be strongly discouraged.

99 Notwithstanding the matters raised in support of this ground by counsel the sentence has not been shown to be manifestly excessive, in my opinion.

Conclusion

100 In my opinion, the applications for leave to appeal against conviction and sentence should be dismissed.

101 I have had the considerable advantage of reading in draft the reasons for judgment of my brother Eames. With respect, I agree with his Honour for the reasons that he gives that the applications for leave to appeal should be dismissed.

102 In deference to the quality of the submissions made by counsel on both sides, I wish to add some brief observations with respect to Grounds 3 and 5 of the application for leave to appeal against conviction.

Ground 3: Exclusion of evidence of utterances by the applicant to Mr Arico

103 Evidence of a person's statement as to his or her contemporaneous state of mind or emotion may be admissible as evidence of the person's state of mind.[29] Despite the apparent hearsay character of the evidence, it is treated as original evidence;[30] most probably because of the close resemblance which it bears to evidence of natural expression of physical sensation or feeling (something long regarded as original evidence).[31] But evidence of a statement of state of mind or emotion is only admissible as to the maker's state of mind or emotion as it were at or about the time of the statement. Consequently, while there is some scope for

evidence of feelings extending some way beyond those experienced at the exact moment of utterance, there must be a " ... sufficient degree of closeness in time between fact and statement" before the statement may be admitted.[32]

104 Consistently with those principles, any statement of state of mind or emotion which the applicant may have made to Mr Arico some five months before the applicant killed the deceased could have been admissible only if the appellant's state of mind or emotion some five months before the killing had been a fact in issue or sufficiently relevant to a fact in issue. In my judgment it was not.

105 Admittedly, in strict logic the applicant's state of mind or emotion five months before the killing might have been pertinent to his state of mind or emotion at the time of the killing. But when it comes to the admissibility of evidence, strict logic is not enough. Logic is the test of relevance. But not all evidence which is logically relevant is legally admissible. As the Full Court explained in R. v. Stephenson,[33] the logical connection between a fact and the issue to be determined may be so slight that the fact is treated as too remote and evidence of it is inadmissible. In such cases, the evidence may be described as being "irrelevant", which is an expression taken to indicate that its weight is so minimal that it does not serve to add to or detract from the probability of the principal issue being established, or more accurately as insufficiently relevant or too remote.[34]

106 Either way, as Eames, J.A. demonstrates, the learned trial judge in this case was right to exclude the evidence of the statements made to Mr Arico. In the circumstances which Eames, J.A. has adumbrated, evidence of the appellant's state of mind or emotion five months before the killing was just too remote.

Ground 5: Withdrawal of provocation from the jury

107 Turning then to the question of provocation, authority suggests that there will be few cases in which the question of provocation arises where the judge will able to exclude the possibility of the jury not being satisfied beyond reasonable doubt that the accused did not lose self control.[35] One kind of case in which the possibility clearly could be excluded would be a contract killing executed by a professional by gun shot fired from a distance. But more usually, where an apparently spontaneous killing has been preceded by verbal exchange or physical interaction between accused and deceased, it will be difficult to exclude the possibility of the jury not being satisfied beyond reasonable doubt that the accused did not lose self control. In such a case, the very fact of the killing appearing to be the accused's immediate response to the exchange or interaction is likely to be something which of itself a jury could regard as creating a reasonable doubt whether the accused retained self control.

108 With great respect to the learned trial judge, who it must be acknowledged had the inestimable advantage of hearing all of the evidence and therefore whose perception of it may well have been different to that which is derived from transcript only, I consider that this was a case where the possibility of subjective loss of self control could not be excluded. I agree with Eames, J.A. that, on the view of the evidence most favourable to the applicant, it was open to the jury to have concluded that the applicant had lost self control when he shot the deceased.

109 It is different when it comes to the objective aspect of provocation. The ultimate question for the jury in relation to the objective test would have been whether they were persuaded beyond reasonable doubt that the relevant words and conduct of the deceased were not of such a nature that they could or might have caused an ordinary twenty six year old man, with powers of control within the range

or limits of what is ordinary for a person of that age, to do what the applicant did.[36] Consequently, the question for this court is whether the jury, if they accepted the view of the gravity and implications of the words and conduct most favourable to the applicant, could have entertained a reasonable doubt that the relevant words and conduct were of such a nature that they could or might have caused an ordinary twenty six year old man, with powers of control within the range or limits of what is ordinary for a person of that age, to do what the applicant did.[37]

110 Like Eames, J.A., I am clear that the jury could not have entertained such a reasonable doubt and thus, like his Honour, I consider that the leaned trial judge was plainly right not to leave provocation to the jury.

111 I agree that the applications for leave to appeal against conviction and sentence should be dismissed, for the reasons put forward by Eames, J.A.

[1] He appeared to raise the Perspex face cover of the helmet towards the top of the helmet, soon after he stopped.

[2] The jury also had the benefit of a view of the scene conducted during the trial.

[3] [2005] HCA 49, at [6].

[4] [1987] HCA 26; (1987) 162 C.L.R. 645, at 662.

[5] [2000] HCA 3; (2000) 199 C.L.R. 620, at 637 [42].

[6] See R. v. Mathe [2003] VSCA 165, at [75]; R. v. Soldo [2005] VSCA 136, at [78]-[86].

[7] R. v. Kotzmann [1999] VSCA 27; [1999] 2 V.R. 123, at 153, per Batt, J.A.

[8] See R. v. Cummins [2004] VSCA 164; (2004) 147 A.Crim.R. 585, at 599-600, per Ormiston, J.A.

[9] [1989] HCA 9; (1988) 166 C.L.R. 283.

[10] At 288.

[11] At 289.

[12] At 291.

[13] At 300-301.

[14] He did say to some people at the scene that he had acted in self-defence.

[15] [1995] HCA 67; (1995) 183 C.L.R. 58, at 66.

[16] Van Den Hoek v. The Queen [1986] HCA 76; (1986) 161 C.L.R. 158, at 168.

[17] Van Den Hoek at 161-2, 169.

[18] Van Den Hoek, at 169.

[19] Masciantonio, at 69.

[20] [2000] VSCA 15; (2000) 1 V.R. 161, at 164 [11]

[21] [1963] HCA 14; (1963) 111 C.L.R. 610, at 616

[22] [1977] HCA 14; (1977) 138 C.L.R. 601, at 622.

[23] Masciantonio, at 67.

[24] Masciantonio, at 70.

[25] At 68.

[26] See Masciantonio, at 69-70; R v. Thorpe (No.2) [1999] VSCA 172; [1999] 2 V.R. 719, at 724 [16]; R v. Conway (2004) A.Crim.R. 206, at fn 3

[27] [1976] HCA 44; (1976) 136 C.L.R 619, at 639, cited in Masciantonio, at 67.

[28] Compare this situation with the "two stage" situations discussed in Masciantonio, at 64-65 and in R. v. Conlon (1993) 69 A.Crim.R. 92.

[29] Reg. Blastland [1986] A.C. 41 at 54; Walton v. The Queen [1989] HCA 9; (1989) 166 C.L.R. 283 at 288.

[30] Lloyd v. Powell Duffryn Steam Coal Co. Ltd [1914] A.C. 733 at 752; Ratten v. R. [1972] A.C. 378 at 387 (PC); Walton v. The Queen [1989] HCA 9; (1989) 166 C.L.R. 283 at 288-9.

[31] R. v. Nicholas [1846] EngR 525; (1846) 2 Car & K 246 at 248; [1846] EngR 525; 175 E.R. 102 at 102, per Pollock, C.B.; Gilbey v. Great Western Railway Co. (1910) 102 L.T. 202 at 203, per Cozens-Hardy, M.R.

[32] Batista v. Citra Constructions Pty Ltd (1986) 5 N.S.W.L.R. 351 at 355-357; Cross on Evidence, Aust. Ed. at [37,135].

[33] [1976] VicRp 34; [1976] V.R. 376 at 380.

[34] ibid. at 380.

[35] See, for example, Parker v. The Queen [1963] HCA 14; (1963) 111 C.L.R. 610 at 616; Moffa v. The Queen [1977] HCA 14; (1977) 138 C.L.R. 601 at 622; Stingel v. The Queen [1990] HCA 61; (1990) 171 C.L.R. 312 at 334; Masciantonio v. The Queen [1995] HCA 67; (1995) 183 C.L.R. 58 at 68.

[36] Stingel v. The Queen [1990] HCA 61; (1990) 171 C.L.R. 312 at 335.

[37] ibid. at 336.