R v Kumar [2002] VSCA 139

Court of Appeal (Vic)|2002-09-10|Before: BATT and EAMES, JJ.A. and O'BRYAN, A.J.A.

CRIMINAL LAW - Murder - Provocation - Whether conduct amounted to "mere words" - Whether "mere words" capable of constituting provocation - Function of judge and jury - Objective test - Accused 20 years of age - Whether defence properly withdrawn from jury - Sentence of 20 years with 16 years non-parole period - Whether manifestly excessive.

I have had the considerable benefit of reading the thorough and, if I may respectfully say so, insightful reasons for judgment of Eames, J.A. In the end, however, I am not persuaded that the trial judge erred in refusing to leave the issue of provocation to the jury on the ground that no reasonable jury, properly instructed, could fail to be satisfied beyond reasonable doubt, on the words and conduct attributed to the deceased, that the applicant's reaction fell far below the minimum limits of the range of powers of self-control to be attributed to the hypothetical ordinary person of 20 years of age. I find it unnecessary to consider whether "mere words" may constitute provocation and, if so, what character they must have. Subject to that, I agree with the reasons of O'Bryan, A.J.A. (which I have also had the benefit of reading) on the application touching conviction.

As regards the application touching sentence, I agree with the reasons and conclusion of O'Bryan, A.J.A. I regard the head sentence as stern in light of the applicant's age but, taking into account the objective circumstances of the offending and the other aggravating factors relied on by the sentencing judge, I do not regard either the head sentence or the non-parole period as outside the range of sentences open to his Honour in the exercise of a sound discretionary judgment.

Accordingly, I would dismiss both applications.

This is an application for leave to appeal against conviction and sentence on a count of murder.

At approximately 9.40 a.m. on Sunday 7 February 1999 Ms Raj Mani was killed in a unit which she leased in Thomastown. The deceased had moved to Melbourne from Queensland in November 1998 thereby terminating a relationship she had with the applicant. The applicant had not known that the deceased was

intending to leave Queensland nor was he advised of her address in Melbourne. Upon learning that the deceased had departed the State the applicant made enquiries in an endeavour to locate her and eventually discovered that she was living in Thomastown. It was not clear how the applicant gained that information but shortly before Christmas the deceased had sent him a letter which was postmarked Thomastown and which the applicant had in his possession at the time of the death. The applicant told the police that the deceased had in fact given him her address in one of a number of telephone calls she had made to him after their separation.

At the time of her death the deceased was 36 years of age and the applicant was 20 years of age. The deceased was born in Fiji and had married there in 1982. There were two children of the marriage, which ended in divorce in 1994. Ms Mani visited Australia from time to time and married an Australian citizen in 1996, thereafter living in Ipswich, Queensland. Whilst working with a company in Ipswich the deceased formed a relationship with the applicant, who was a fellow employee. The applicant, who had also been born in Fiji, had migrated to Australia with his parents in March 1996. At the time of commencing the relationship with the deceased the applicant was aged 18 years. Apart from one brief relationship with a woman of his own approximate age he was a relatively immature youth when he met the deceased. As a result of her relationship with the applicant the deceased's second marriage failed and in June 1997 the applicant and the deceased began living together in Goodna, a suburb of Ipswich. The relationship was a stormy one (violence emanating solely from the applicant, however) and was a cause of displeasure both to the family of the applicant and to the family of the deceased, the disparity in age of the couple being an important factor in family concern. Both families followed the Hindu religion. The deceased separated from the applicant on at least two occasions prior to her departure from Queensland. On the two prior occasions the parties had reconciled and recommenced their relationship.

The deceased complained to her family on occasions of having been assaulted by the applicant and evidence was led of such incidents. In August 1997 the applicant struck the deceased to the face, during an argument which developed at a party. The applicant was jealous of the deceased speaking to other men at the party. On 4 June 1998 police attended the premises at which the couple had resided and the deceased complained that she had been assaulted. This led to Ms Mani seeking and obtaining a protection order under Queensland legislation, of two years' duration, which was issued on 25 June 1998. The order prohibited the applicant from inflicting violence on the deceased but otherwise permitted there to be contact between them. Assault proceedings were commenced by the police arising out of this incident and on 2 July 1998 the applicant was convicted of assault and fined. At the hearing the deceased told the magistrate that it was her fault that she was assaulted. She said that she had sworn at the applicant and had insulted his parents.

After separating in September 1998 the applicant lived with his sister, Ms Sbeghen, for a few weeks, but Ms Mani frequently rang him, and the applicant later resumed cohabitation with Ms Mani in premises in Goodna, Ipswich.

Ms Mani moved from Queensland in November 1998, with the intention of putting an end to her relationship with the applicant. The circumstances of the final separation, as told by the applicant to his sister, were that there had been an argument between the couple about the fact that the applicant had been late returning from his parents' house. Ms Mani abused him and the family, calling his sister, Ms Sbeghen, and his other sisters and family members bitches and dogs, and he had then struck Ms Mani.

In December 1998 the deceased returned to Fiji for a family wedding and while she was there the applicant phoned her family in Fiji and told the deceased's sister that wherever they were hiding Ms Mani he was going to come and kill her. He also threatened to kill the sisters, who had disapproved of the relationship, but the sister to whom those threats were made in the telephone call told the jury she did not take them seriously.

The applicant travelled to Melbourne at some time after 30 December 1998, with the intention of locating Ms Mani. He returned briefly for a hearing at Ipswich Court on 3 February 1999

Shortly before Christmas, and before departing Queensland in 1998, the applicant received a letter posted by the deceased from Melbourne and addressed "to my sweetheart", and couched in generally loving terms. In the letter the deceased wrote "I cry for my love. I want my love back." That suggestion, however, was qualified by expressions of concern about the behaviour of the applicant. Ms Mani observed "You know how you treated me first like I was nothing to you". She wrote that the applicant had been given many chances and had not kept his promise to her. She wrote that she had been told by someone that the applicant would take revenge on her and would kill her. However, despite such negative (and prophetic) comments the full terms of the letter (which I will not quote), overall, were capable of being regarded by a jury as conveying to a 20-year-old, immature, youth that the deceased wanted the relationship to resume, albeit on terms as to modification of the future conduct of the applicant. The jury might well have considered that the applicant either disregarded or did not appreciate that Ms Mani (if she was offering any hope, at all, of a resumption of the relationship) was making that important qualification.

Having arrived in Melbourne the applicant lived in his car for some days, and searched the streets in Thomastown for Ms Mani. He visited Ms Mani's uncle and asked her whereabouts, but the uncle declined to say. The applicant told the uncle that Ms Mani had run away from him, but had kept phoning him in Queensland. In early January 1999 the deceased observed the applicant's vehicle parked near the house of her uncle, whom she was visiting, and she became upset and asked another friend, Ms Magla Chasapis, to speak to the applicant and ask him to return to Queensland. Chasapis invited the applicant to stay at her premises until he was ready to return to Queensland, and he remained with her for some weeks. During those weeks the applicant and the deceased came into contact from time to time.

On the occasions of contact between them sometimes the deceased appeared fearful of the applicant but, on other occasions they met in more friendly circumstances. On one occasion, when she was a passenger in a friend's car, Ms Mani saw the applicant and tried to hide herself in the car. She was scared. On 19 January 1999, when the deceased was a passenger in another friend's vehicle, they were followed and harassed by the applicant, who having followed them into a service station and argued with Ms Mani only left when they threatened to call police. The deceased told him to go away; she was upset.

Notwithstanding the occasions when the deceased showed fear of the applicant there were also instances of more friendly contact, including sexual relations on some occasions at the home of Ms Chasapis. The second occasion when they spent the night together at the Chasapis' house was 10 January 1999.

The applicant had discovered the address of the unit in which the deceased lived. He was observed to be standing near the unit on several occasions in the weeks prior to 7 February 1999. The applicant told police that he stayed overnight at Ms Mani's flat on a couple of occasions, and they had sexual relations on those occasions. She did not, however, invite him to move in with her, and he continued to reside with Ms Chasapis. He told police that he queried Ms Mani why she would not let him reside with her and Ms Mani said it was because their families would be upset, but he suspected that she might have another lover, although she never said to him that she did have another man. The applicant told police that there had been occasions when Ms Mani threatened to take another lover, and to have sex with the new lover in front of the applicant. At the same time, however, he told police that that there were no arguments or fights between them while he was living at Ms Chasapis' house.

The applicant said that he had talked to Ms Mani about getting married. He said they had discussed buying a house together. Ms Mani would not, however, commit herself to marriage. Although the applicant made it clear to the deceased that he wanted a reconciliation, the deceased did not agree, and did not invite him to reside with her.

In early February 1999 the applicant returned to Queensland with the intention of collecting his belongings for a permanent move to Melbourne. He obtained work in Melbourne a few days before he had to return to Queensland for the court case. The jury learned that a "domestic violence case" against the applicant was listed for hearing at Ipswich Magistrates' Court on 3 February 1999. The applicant attended the hearing but Ms Mani did not attend. The applicant told his sister that Ms Mani sent a message to the court advising that she consented to the case being "withdrawn". This information about the court case was unexpectedly given in court by the applicant's sister and the jury did not learn the circumstances of the hearing at Ipswich. In fact, on 23 September 1998 police had once again attended the premises, following a phone call, whereupon the deceased complained that the applicant had breached the order. It was a prosecution for breach of the order which had been adjourned to 3 February 1999, and those proceedings were dismissed when Ms Mani did not attend the hearing. The complaint of breach of the order was not, therefore, proved against the applicant[1].

After the court case the applicant drove at once to Melbourne, departing on the Thursday evening and arriving in Melbourne on the Saturday morning. Before departing on that final occasion he told his sister, Mamta Sbeghen, that he was going to Melbourne to resume living with Ms Mani, and that they were having "a real happy time" together in Melbourne.

Although the evidence points to the fact that Ms Mani had not invited the applicant to resume co-habitation with her there was evidence to the contrary which was open to the jury to accept. In particular, the applicant told police that the deceased had telephoned him in Queensland to invite him to join her in the flat in Melbourne. On 1 February, however, the deceased had told a friend that she had slept with the applicant but did not want to live with him and felt it was safer not to do so. On 6 February she told Chasapis that she was scared.

Taken at its highest, however, in favour of the applicant (which is the approach the Court must adopt in determining whether there was evidence of provocation capable of supporting the defence[2]) there was some evidence that the applicant had been led to believe that his relationship with Ms Mani would once again resume. Upon his return to Melbourne on 6 February 1999, after a long drive - which concluded with an accident which severely damaged his car - the applicant parked his car at a block of units in Thomastown, not far from the deceased's unit. He slept in the car overnight and the following morning, at 8.30 a.m., walked a short distance to the deceased's unit.

He went to the flat that morning in the expectation, so he told the police, that he would receive a friendly welcome. That, of course, is a suggestion which a jury might well have rejected. A jury might well have concluded that he knew the relationship was over and that his arrival at the unit would cause fear in Ms Mani, or at least that he had no reason to believe that he would be welcome. In determining the question whether the defence should have been left to the jury the Court must, however, assess the situation most favourably viewed from the standpoint of the accused[3].

At the flat he spoke to Ms Mani, who refused to open the door. He asked for food and the deceased told him that she was cooking breakfast, but did not offer food to him. The applicant left the unit, but then returned, and again sought entry after knocking on the door. Ms Mani had opened the inner door and spoke to him through the locked fly screen door (whether she adopted this approach each time is unclear), but then closed the inner door. At 8.36 a.m., she telephoned the police, requesting assistance, saying "My ex-boyfriend is hassling me please". The Intergraph operator asked if there were threats of violence, to which the deceased said "Yeah he's outside, yeah. I don't know where he got the keys from [sic] the screen door. He opened the screen door." She said, "He's just hassling me. He wants to get inside the house and I want a restriction order on him."

At 8.50 a.m. police attended the scene but the applicant had departed. The deceased told the police that the applicant had been banging on her door and requesting that she let him in and provide breakfast. She told him he could not come in. She told police that the applicant had departed but then returned and had managed to open the flyscreen door. The deceased said she had then closed the main front door and had telephoned the police. The police gave her advice about the procedure for obtaining an intervention order and told her to again contact the police if he returned.

About a half hour later the applicant once again returned to the unit and knocked on the front door but, getting no response, departed and walked 160 metres to a local primary school where he picked up a piece of pipe, about a metre long. He was observed walking in the street by a resident, and had a casual conversation with the resident about the weather. The applicant then walked to his vehicle and got a folding knife from his car. He returned to the unit and upon arriving smashed the front bedroom window and climbed into the house. He took the knife from his pocket, unfolded it, approached the deceased and stabbed her a number of times in the back. Neighbours heard fighting, those sounds commencing about a minute after the window was smashed.

The deceased suffered two sets of injuries. The first were stab wounds, consistent with the knife, and the second were chopping injuries, consistent with a meat cleaver which was found in the house. There was one stab wound to the abdomen which went through the spleen and kidney on the left side. There were two stab wounds to the front of the chest, one of which penetrated to the lungs. There were six to ten stab wounds to the back, one of which penetrated the chest and another penetrated the lower part of the spinal canal. In all, there were between nine and thirteen stab wounds to the body. The chopping injuries were to the head of the deceased. There were eight chopping injuries to the head and neck and an additional two chopping injuries to the left side and front of the scalp and a further injury to the right side of the face. In all, there were eleven injuries from a chopping implement. Additionally, there were nine defence injuries to the forearms of the deceased. The injuries to the deceased suggested an attack of great ferocity had taken place.

The applicant was apprehended by the police a short time after the killing. Later he spoke to his sister, by telephone, and said that he had broken into the deceased's unit in order to obtain food and a fight had arisen between them, with the deceased arming herself with a knife, whereupon he used a chopper to protect himself, and they both struck each other. There were no injuries of any significance to the applicant consistent with such a fight. Additionally, the applicant told his sister that he had discovered that the deceased had had a relationship with another man, a "Punjabi man". No suggestion that he had acted in self defence was raised at the trial, nor did he say during his record of interview that he had been acting in self defence. No mention was made to police in the interview about a relationship which Ms Mani had with a Punjabi man, although he told police that Ms Mani had said during the argument that she would take another lover and have sex in front of the applicant. The applicant said that she had said such things before and he did not really believe her when she said it on this occasion. It was not a big insult, he said, and did not make him angry when she said it.

The sole ground of appeal against conviction complains of the ruling of the trial judge not to leave the defence of provocation to the jury. His Honour said that he accepted that there was sufficient evidence upon which the jury could act as to the "subjective" requirement for the defence of provocation but as to the objective element for the defence he concluded that no reasonable jury properly instructed could entertain a reasonable doubt whether an ordinary person in the position of the applicant could have acted under the suggested provocation so as to form the intention to kill or to cause really serious bodily harm.

On behalf of the applicant it was submitted that, taken at its highest, there was evidence that both by words and actions the deceased had provoked the applicant to such an extent that he had lost his self-control and killed Ms Mani, and it was submitted that an ordinary person placed in the situation of the applicant might have lost self-control so as to form the murderous intention to kill, and have killed. The evidence of suggested provocation came almost entirely from the record of interview. The applicant did not give evidence in the trial. Various passages of the interview were pointed to -

"Q 885 Alright. And when she opened the door, what did you say to her? A Me? I said - I said `Hi, you know, how are you?' and I got nothing, so `What's going to happen now? I've been trying to contact you and Magla said that you would be down there. Why are you lying with me and this and that - and that's where she started saying this and that. Q 886 What did she actually say? A At first she started swearing at me, sweared at mum and dad - - - Q 887 Just tell me what she said? A That I'm a bastard. Q 888 Mm? A And I said, `Why are you saying that?' and then she started, `I've gonna take a ... another man in front of you.' You know, and he's sleeping with her. She said, "... sleeping with him and I'm gonna get in front - what are you doing that? And why are you calling me? What for?' Q 889 What did you say? A And that's what I was saying - that's what I was saying, and I asked if she had cooked anything and said is it still cooking and then she started to get - kept swearing at me. Q 890 Sorry, you asked her if she was cooking, did you say? A Yeah. If she had something, you know, to eat because I didn't have anything since two days. Q 891 This is after she's told you that she - that you're a bastard and that - - -? A Yeah. Q 892 You don't want to - she wants to take another man in front of you - - -? A Yeah. Q 893 You've asked her if she could give you something to eat? A Yeah."

The applicant said that when he asked for something to eat the deceased said to him "I'm cooking" but she kept swearing at him saying that he was a dog and that she had another man "just to make me jealous". He said the deceased was screaming, but he was not. He said (Q907) "And she just keep on doing [sic] and making me mad. She said I'm going to call the police. I said `thanks for nothing'." I just went - I just went and sit down on the - they're got a stone in front there, for a while, and just . . .".

The applicant said he sat on a stone arrangement near the front of the units and waited there about ten minutes. Then he returned to the unit to talk to the deceased again. The record of interview continued:

"Q 927 Okay. And what happened next? A And after that I went to talk with her again and she made me so mad that - I was going back to my car and just couldn't control my temper and I came and broke the glass and went inside now and stab her. Q 928 Alright. Let's slow down a little bit - you're sitting at the letterbox? A Yep. Q 929 And you sat there for 10 minutes? A Yep. Q 930 Where did you go from the letterbox? A I just went back to her door to talk with her again. Q 931 Back to the unit? A Yeah. And she was still saying that thing. Q 932 What did you do when you got back to your unit, did you knock on the door again or what did you do? A I just had one knock and she was there - she was start swearing swearing again. Q 933 What was she saying this time? A And they were saying - because actually she was swearing my mum and dad pretty badly. Q 934 What was she saying about your parents? A My - that my parents are - you know, low caste this and that and - you know, she was swearing my sister. Q 935 When you say low caste, what does that mean? A That means my family's are untouchables - they're bastards. Q 936 Alright. This is a religious - - -? A Yeah, it's a religious way of saying it and no body would like it in a religious way. Q 937 Alright. Which religion is this? A Hindu. Q 938 Okay. And how did she - how did she phrase that, when she's calling your parents a low caste, how did she say it? What words did she use? A Well, she - actually - it's pretty hard to explain she was saying in Hindi. Q 939 Right. Well, just as best you can in the translation of that - the sort of things she's saying? A It's pretty hard - kept on saying that we are low caste and my families are - my mum and dad both are bastards. Q 940 Alright. What sort of effect did that have on you? A That just made me mad because, if she wants, she can swear at me, but why's she swearing my mum and dad like that? Q 941 Right? A They've never done anything wrong with her. Q 942 Did she accuse you of being a low caste? A Yes, she did. Q 943 What did she about you? A That I'm a son of a bastard. My mum and my dad are both bastards. And this and that - I can't explain it, you know. It's very hard to translate. Q 944 Okay. Are you a religious type of person? A Yeah, we are, but not that common, but we're still religious."

The applicant told police that the first argument which took place at the unit occupied approximately half an hour. During that argument the deceased told him (apparently through the wire screen door) that she was going to call the police and she shut the main door. After the applicant had left the unit and sat on the stone near the letterboxes at the front of the units he was crying, he told police. The questioning continued:

"Q 986 Why were you crying? A I was just thinking what's happening with me. Q 987 What things were going through your mind? A I was - I was so mad that I couldn't think anything. I was thinking that I lost everything, how my car and everything, which I think - which I will - paying for it. Q 988 So the car's under finance, is it? A Yeah, it is. Q 989 Who's that with? A AGC. Q 990 How much do you owe on the car? A About seven or eight grand. Q 991 And you think it's only worth about 10? A Yes. Q 992 Alright. So you've lost the car - what else was going through your mind? A I didn't think ... I'm away from my parents now and somebody's just you know playing with me. After two years ... I was so mad. Q 993 Who were you mad at? A All these things I was thinking. Just going through my mind. Q 994 Were you getting mad about your position or were you mad at yourself or were you mad at Raj - who were you mad at? A Actually, I wasn't that mad on Raj and that ... I was mad on myself, but I - what I have done. You know - I think, you know, I'll just jump in well for nothing. And after that - then I thought all the cause is Raj. And that way I just - I just continued to be ... 995 Alright. So at first you were mad at yourself ... A Yep. Q 996 For the position that you were put in and then you felt mad at Raj? A Mm. Q 997 What did you do then? A I just went down there and looked down where the school is and I found an iron bar there. I just couldn't think of anything. Had a - had a pen knife in my car - just took that knife out went in, smashed the glass, went inside and stabbed her."

Questioning later returned to the events before he broke into the flat. He told the police that after sitting by the letterboxes he had got up and returned to the unit and another argument had taken place during which he was again sworn at in Hindi. This went on for a couple of minutes. Ms Mani, he said, was again insulting his father and mother. She told him that she was going to call the police and take out a restraining order. He said that when he returned the second time and had a further argument he did not then have any intention of killing her, but just went there to sort things out. After this second altercation he had walked away and that is when he saw the iron bar. He said "I was crying and I was so mad". When he found the iron bar "something tell me - came to mind to break the glass and get in the house."

The knife, which he called a "pen knife", had a folding blade which was about four inches long. It was kept in the car because he had used it in his work, he said. After climbing in the window (at which point he agreed he might have got some cuts to his hand; he said he did not think about the glass, "I was so mad"), he unfolded the knife, walked in and when he saw Raj he just stabbed her. He first stabbed her in the back and then when she turned around he could not remember what else happened. He said there was "a tussle" between them. In the course of his attack he lost his knife and then he picked up the meat cleaver which had been in the kitchen. He said Raj had picked that up before he did (after he had attacked her) but then she had lost her grip on it and it fell on the floor, from where he picked it up. She had tried to strike him with the meat cleaver but could not, because he was holding on to her. When he got the meat cleaver he struck her to the head several times with it.

Asked again about the words which the deceased had used the applicant said they were in Hindi and the translator who was present for the interview interpreted the words to have been as follows (speaking of the mother of the applicant):

"She is a prostitute. She works for money. Your father is not a man. He doesn't have ... weapon. He didn't look after your mother. She earns and feeds you. Your mother is a bitch and prostitute. Your brother and sister mix with Muslim and sleep with them. You are a dog. Your brother's wife sleeps with other man in Fiji. This and that."

The applicant said much the same things were said in both of the conversations or arguments which he had with the deceased at the door of the unit. He said the deceased had told him that "my dad to be a poofter and my mum's is a slut and, you know, she just keep going". Also "she said that my dad doesn't deserve to be a man".

The applicant told police that the deceased had abused his parents once or twice before, but never so badly. The questioning then continued:

"Q 1732 So why did you take it so personally this time? A She went a bit too deep and I just couldn't tolerate it. Q 1733 Right. Why didn't you do something straight away, when the insults were happening? Why did you go away? A Actually I didn't tell her anything - I didn't have anything in mind to do anything. When I went out and still it was stuck in my mind. Q 1734 Sorry, when you went - - -? A Went away, the same words were just stuck in my mind. And they just made me mad. Q 1735 So you didn't get mad straight away? You thought about it for a while - - -? A I start crying and went out and then it made me mad after a while - - - Q 1736 So after how long do you think that you started to - A I just went - I was just walking and I was just crying. And I went past and saw that iron bar. And it made me very mad to do something. Q 1737 So did you have it in your mind to hurt her severely? A No."

He said that although he returned to the flat with the iron bar and the knife he did not have it in his mind to murder Raj or to kill her but as soon as he got in the flat he stabbed her. He was asked (Q1743): "She didn't provoke it in any way?" to which he replied, "No". He was asked what made him so angry, whether it was the words she had spoken about his parents, and he answered:

"A 1747 Like, all the things just came in my mind, she had been accusing my parents and on the other hand I'd lost everything, and she had called me from there to here for nothing and ... Q 1748 You had your car accident yesterday. A Yeah. And everything just came in my mind and I was mad to do something wrong."

He said that as to the first occasion when he went to the unit, and was told that she was still cooking breakfast, at that time things were all right. It was after that that she started saying all the other things. He was asked whether he was angry because she would not provide him with food and he said, "Angry. Like, my hunger was not that big. I was a bit more angry." He agreed that he blamed Raj for his motor vehicle accident and for the fact that she had made him drive all the way back for nothing (although whether he blamed her at the time, or in hindsight, and whether he expressed such blame to Ms Mani, was not made clear by the questioners). In response to leading questions, he agreed that it had come into his mind that he had driven down for her and she was not there for him when he arrived. It was not just the insults which he received which upset him, but, he said, "that was a pretty bad part of it, I'd say". He told the police that she had called him in Queensland and asked him to come down. Having come to Melbourne he had the accident. He continued:

"A 1795 Accident and everything and when I rang her up she didn't took it - you know, calmly. She was in place abusing me pretty badly - and that's what happened. Everything just came in my mind and I just couldn't tolerate anything more. Q 1796 So it's a combination of everything. A Yep. Q. 1797 Not just the insults? A Well, but that was - like I said, that was a very bad part of it."

The applicant told police that when he saw the iron bar it came into his head to break the window but then he changed his mind and went back to his car to get the knife. He was asked what was in his mind when he saw the iron bar and said (Q1814) that "it made me mad to see something which I can use to take revenge or something". He said that when he got his knife it did not enter his mind to kill Raj Mani. He said "Its pretty hard for myself to think why I went and picked it up. Because I didn't have any intention of killing her". He said maybe the thought of scaring her came into his mind. He was asked about the likely impact of the words on another Hindu person and he said that the words would be taken very seriously, and the effect on another Hindu person would be the same as for him. He said that the response depends on "where your mind is". Asked how another Hindu person would have reacted he said, "Well, it goes without saying if somebody was in my place where I've lost everything would have done the same thing".

The Hindi interpreter, a woman who had attended the police interview, was called to give evidence in the trial by the prosecution, but when asked by counsel for the applicant agreed that family was extremely important in the Hindu religion and that to persons of that religion the words used, as she had interpreted them, would be deeply hurtful and insulting. The witness said she regarded the words as "pretty bad" for her, and she could not think of anything worse.

In making his submission that provocation be left to the jury counsel who then appeared for the applicant submitted to the trial judge that there was evidence of words being spoken by the deceased which, if believed, were capable of constituting provocation as a matter of law. The only provocative "conduct" which counsel for the applicant identified to the trial judge comprised the refusal to provide food to the applicant and the maintenance of a locked door, denying entry.

His Honour said as to the suggested provocative conduct of the deceased of retaining a locked door to her own home that it was "oxymoronic" to suggest "(that her) actions of maintaining that safety can be legally transformed into provocation sufficient to excuse her being slaughtered".

In R. v. Parsons[4] Brooking, J.A. conveniently summarised the law on provocation, as propounded by the High Court in Masciantonio v. The Queen[5], 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. As regards the relevant sense, the question is whether the suggested provocation could have led an ordinary person to lose self-control and 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. The suggested provocation is to be measured in gravity by reference to the personal situation of the accused. It is the nature and extent - the kind and degree - of the reaction which could be caused in an ordinary person by the provocation which is significant, rather than the duration or precise physical form of the reaction. In considering that matter, the question whether an ordinary person could form an intention to kill or do grievous bodily harm is of greater significance than the question whether an ordinary person could adopt the means actually adopted to carry out the intention."

In the case before us the trial judge held that he was satisfied there was sufficient evidence for a reasonable jury to conclude that the subjective test had been met. He held that no reasonable jury could have a reasonable doubt as to whether the objective test was met. In R. v. Thorpe (No.2)[6] the Court of Appeal conveniently identified the difference between the two tests by reference to a passage in the joint judgment in Masciantonio. In that passage of the joint judgment their Honours held[7]:

"Homicide, which would otherwise be murder, is reduced to manslaughter if the accused causes death whilst acting under provocation. The provocation must be such that it is capable of causing an ordinary person to lose self-control and to act in the way in which the accused did. 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." (My emphasis.)

The sentence which I have highlighted states the subjective test. The sentence preceding it states the objective test. His Honour must therefore have concluded that it was open to the jury to conclude that the applicant acted while deprived of self-control and before he had a chance to regain his composure. His Honour noted more than once that there was a gap of half an hour between the last provocative words of the Ms Mani and the break-in to her flat. In that period the applicant had an apparently calm conversation with a person whom he passed in the street. His Honour must have concluded that it was open to the jury to find that despite appearances to the contrary the half hour delay was not sufficient time to provide the opportunity for the applicant to regain his composure. That is a favourable conclusion for the applicant as to the subjective test but having regard to the ferocity of the attack I agree with his Honour that it was open to a jury to so conclude. The mere fact of a time delay of such a period, or longer, is not of itself sufficient to deny a reasonable doubt as to whether the subjective test has been met[8].

As to the objective test, His Honour held that the words and actions identified as provocative fell "markedly short" of being sufficient to constitute provocative conduct which a reasonable jury could conclude met the objective test for provocation. In so concluding his Honour mirrored the words and approach stated by the High Court in Stingel v. The Queen[9], where with respect to the 19-year-old accused in that case, the Court held:

"No jury, acting reasonably, could fail to be satisfied beyond reasonable doubt that the appellant's reaction to the conduct of the deceased fell far below the minimum limits of the range of powers of self-control which must be attributed to any hypothetical ordinary 19-year-old."

On appeal, Mr Gyorffy, for the respondent, submitted that the provocation which was said to have occurred here amounted to "mere words", and thus could not constitute provocation, as a matter of law. If, however, the Court concluded that words alone were capable of constituting provocation then, he submitted, the words had to be of a violently provocative character, in the sense that they had to constitute a threat of violence or at least be used in circumstances which were of a most extreme and exceptional character. It was not sufficient that they were merely insulting or offensive.

Mr Gyorrfy submitted that the common law in Australia on the question of mere words remained that stated by Viscount Simon for the House of Lords in Holmes v. Director of Public Prosecutions[10] wherein his Lordship held that a sudden confession of adultery could never constitute provocation and that:

"... in no case could words alone, save in circumstances of a most extreme and exceptional character, so reduce the crime. When words alone are relied upon in extenuation, the duty rests on the judge to consider whether they are of this violently provocative character ...".

In England the effect of Holmes was removed by legislation which permitted words to be relied on as provocation. In Director of Public Prosecutions v. Camplin[11] the House of Lords considered the effect of the new legislation and in so doing the history of provocation was considered by Lord Diplock[12] who said:

"... The human infirmity upon which the law first took compassion in a violent age when men bore weapons for their own protection when going about their business appears to have been chance medley or a sudden falling out at which both parties have recourse to their weapons and fight on equal terms. Chance medley as a ground of provocation was extended to assault and battery committed by the deceased upon the accused in other circumstances than a sudden falling out; but with two exceptions actual violence offered by the deceased to the accused remained the badge of provocation right up to the passing of the Act of 1957. The two exceptions were the discovery by a husband of his wife in the act of committing adultery and the discovery by a father of someone committing sodomy on his son; but these apart, insulting words or gestures unaccompanied by physical attack did not in law amount to provocation."

Mr Gyorrfy submitted that this remained the law in Victoria where, unlike New South Wales, the Parliament had not passed similar legislation to that in England to declare that mere words were capable of constituting provocation.

I did not understand Mr Gyorrfy to challenge his Honour's conclusion that the jury could reasonably conclude that the words allegedly used by Ms Mani (even if the case was characterised as being one involving "mere words") did in fact provoke the applicant. The requirement that the case could meet the subjective limb of the test for provocation was not an obstacle to the defence being left to the jury. It was plainly arguable that what was said and done by the deceased did in fact cause him to so lose self-control as to form the intention to kill or cause really serious injury. Mr Gyorffy submitted, however, that mere words were incapable of meeting the requirements of the objective test. Alternatively, even if words might be capable of constituting provocation they had to be words of a special character, and these words did not have that character.

The question whether words alone may suffice for provocation, and, if so, words of what character, can not be regarded as having been definitively resolved in Victoria[13]. The weight of authority, however, supports the conclusion that "mere words" are capable of constituting provocation if they are "violently provocative". Furthermore, and despite the use of the adverb "violently", that requirement does not necessitate there be a threat of violence to the accused person, but requires that the words, in all the circumstances in which they were used, be offensive or insulting in character to a significant degree.

In Stingel the Court was concerned with the Tasmanian Code, which provided that a "wrongful act or insult", of defined seriousness, was capable of constituting provocation. The Court considered that those words represented a departure from the common law position which did not allow that "mere words" could constitute provocation. The kind of "insult" which might amount to provocation under the Code was not therefore confined, as their Honours said it would have been confined by "earlier common law doctrine", and could include an insult which was neither accompanied by nor in the context of physical violence or the conveyance of information."[14] The most recent authority cited by the Court were the decisions of Camplin[15] and Moffa[16]. I will refer to those cases later, by way of elaboration of the principle, but the statement of the common law position in Stingel , as will be seen, would not preclude reliance on the words in this case as constituting provocation.

In the High Court decision in Parker v. The Queen[17] Taylor and Owen J.J. observed that at common law mere words were not sufficient to constitute provocation. Menzies, J. held likewise[18]. Windeyer, J. said that after Holmes it was "perhaps" still the common law rule that it was only in exceptional cases, if at all, that mere words could constitute provocation[19], but his Honour noted that attitudes have changed from one generation to another as to what weight and character might be attributed to things which were said to constitute provocation. In my view, it is consistent with that change in attitude that what might constitute "violently provocative" words has been liberally interpreted.

The reference to the violence of language, as discussed by Viscount Simon and Lord Diplock, related to the historical origins of provocation. The continuing relevance of such origins of the defence was expressly discounted by Dixon C.J. in Parker v. The Queen[20] (as noted by Mason, J. in Moffa[21]). Dixon, C.J. said that the criteria for provocation should no longer be expressed in terms directed to duels and armed antagonists, nor to "violence produced by violence"[22].

In one age it was discovery of a wife in the act of adultery, or of a son being sodomised, which the male judges agreed would constitute provocation. In today's multi-cultural society, however, such events may be less likely to cause an ordinary person to lose self-control and kill than might a racist taunt, and the law, in my view, now reflects that understanding.

In The Queen v. Dutton[23] the Court of Criminal Appeal in South Australia concluded that the common law in Australia had developed so that "words alone" were capable of constituting provocation. King C.J. held that that conclusion followed from Moffa v. The Queen[24], and cited the judgment of Mason, J. Sangster, J. agreed,[25] observing that the change in the law to allow words to constitute provocation, which had been effected by legislation in England (and which was discussed in Director of Public Prosecutions v. Camplin), had been achieved by the judges in Moffa.

The confidence of the Court in Dutton as to the status of "words alone" has not been shared elsewhere. In Green v. The Queen[26] Gummow J. concluded that "the apparent common law position" had been that only in exceptional circumstances, if at all, would mere words constitute provocation. His Honour contrasted the statutory position in New South Wales, which recognised that "grossly insulting words or gestures" were capable of constituting provocation, with what his Honour said was to be regarded as the Australian statement of the common law, in Moffa, namely, that words had to be of a "violently provocative" or "exceptional" character to constitute provocation. The necessity that "mere words" be either "violently provocative" or be exceptional in character (or be used in exceptional circumstances) does appear to be a continuing requirement, but it is instructive to examine the facts in Moffa when considering what words might meet those descriptions. It emerges from Moffa, and other cases to which I will refer, that "violently provocative" does not mean "threatening violence".

In Moffa the wife of the accused was said to have announced that the marriage was at an end and to have scornfully rejected his advances, and to have also boasted of having sexual relations with men in the neighbourhood. In the course of the argument she threw a telephone at him (not striking him) and flung at him photos of herself naked (some of which he admitted he had taken). She called him a "black bastard" and threatened to scratch his eyes out if he came near. Barwick, C.J. said that this conduct amounted to more than mere words of a not violently provocative character. The expression of her pleasure in having sexual relations with others might, his Honour said, have implied that the accused man was sexually inadequate. The Chief Justice concluded that a jury might reasonably conclude that an ordinary person in the position of the accused could so lose self-control as to do what he did[27], namely, kill his wife.

Gibbs, J. who dissented, held that while the words in Moffa were calculated to disturb or enrage, they were not of such a violently provocative character as to meet the exception accepted in Holmes, whereby mere words might constitute provocation. Gibbs J observed that words which had such character would be found only in an extreme and exceptional case[28].

Stephen, J., held[29] that the words used were of slight seriousness, and amounted to meaningless obscenity. Stephen, J. held, following Holmes, that mere words, even if obscene or insulting, or which constituted the recounting of a necessarily provocative event, would not suffice unless they involved "circumstances of a most extreme and exceptional character". His Honour held, however, that the words in that case could be regarded by the jury as having that character, and concluded that the issue was properly left to the jury. Stephen, J. said that the words in that case were not simply admissions of adultery but boasts of wholesale promiscuity with people in the street where they lived, which words were combined with lack of remorse and accompanied by "some violence" in the throwing of the phone, and came after avowals of devotion by the accused. Whilst stating that claims of provocation by mere words required careful scrutiny of the words, his Honour held that there was no absolute prohibition against words founding a case for provocation[30].

Mason, J. held[31] in Moffa that:

"There is no absolute rule against words founding a case of provocation. The existence of such an absolute rule would draw an arbitrary distinction between words and conduct which is insupportable in logic. No doubt provocative acts justifying the reduction of murder to manslaughter are more readily imagined and more frequently encountered than provocative words which justify the same result. Violent acts, rather than violent words, are more likely to induce an ordinary person to lose his self-control. And a case of provocation by words may be more easily invented than a case of provocation by conduct, particularly when the victim was the wife of the accused. There is, therefore, an element of public policy as well as common sense in requiring the close scrutiny of claims of provocation founded in words rather than conduct."

Mason, J. concluded that the words used by the victim in Moffa went beyond a mere confession of adultery, and constituted words of a violently provocative character which were capable of causing an ordinary person to so lose self-control as to do what the accused did.

Murphy, J., alone, argued in Moffa for a wholly subjective test to be applied.

It may be seen, therefore, that the concept of words being "violently provocative" was not regarded by the judges in Moffa as requiring that there be a threat of violence. Indeed, Mason, J. expressly said that the words did amount to being "violently provocative in character"[32]. That case offers no support, in my view, for the narrow notion of "violently provocative" for which Mr Gyorffy contended.

The argument advanced by Mr Gyorffy as to "mere words" is the same as that advanced by him in R. v. Tuncay[33]. In that case the question whether mere words could constitute provocation was not resolved since, as was made clear in the leading judgment of Hedigan, A.J.A., on any view the words employed in that case were incapable of causing an ordinary person to so lose self-control as to do what the accused did. Ormiston, J.A., with whose reasons Phillips, C.J. agreed, expressly noted that the reasons of Hedigan A.J.A. did not assert that "mere words" were incapable of constituting provocation.

Ormiston, J.A. expressed the view, obiter, that the limitation as to mere words arose at a time when it was judges, not juries, who were charged with determining what constituted provocation. His Honour concluded that the question should now be left to the jury to determine what the ordinary person's reaction would be to the suggested provocative words, subject to the power of the trial judge to take the issue away from the jury where the claimed provocation "could in no circumstances properly lead to a verdict of manslaughter".

In R. v. Parsons[34] the trial judge refused to leave the defence to the jury. The Court of Appeal held that the decision of the trial judge was correct. Brooking, J.A. (with whom Phillips, C.J. and Hampel, A.J.A. agreed), described it as "an open and shut case" of murder. Brooking, J.A., without deciding the question, queried whether mere words were sufficient to constitute provocation. In that case the killing occurred near the Family Court during the adjournment of a hearing in a bitter custody and maintenance dispute. The accused stabbed his wife 48 times after she smiled and laughed at him, said "we have got you now you bastard", and added that she could do what she liked with the children. Brooking, J.A. expressed some doubt that mere words might be capable of constituting provocation. His Honour observed:

"Not so many years ago the suggested provocation in this case might have been dismissed as `mere words' which were not `of a violently provocative nature': compare what was said by the Court in Moffa v. R.[35]. It was perhaps concern about the older authorities on the subject of `mere words' which led Mr Holdenson to assert in passing, as he did more than once, that the trial judge had accepted `that there was provocation' and that the only question was the correctness of his view on the result of applying the `ordinary person' test. The Crown has said nothing about the authorities dealing with `mere words' and seems to me to have proceeded as Ormiston, J.A. suggested was appropriate in R. v. Tuncay[36]. I doubt very much whether the words - and smile and laugh - attributed by the applicant to the victim in paragraph (w) could be viewed as `provocation' and so I doubt very much whether one is required to consider the possible response of the ordinary person. I am content, however, to deal with the case by simply asking whether the `provocation' alleged to have been offered by the victim just before she was killed could in the view of a reasonable jury have met the ordinary person test. I have no doubt that the answer is that it could not."[37]

In R. v. Leonboyer[38], the accused and his victim had commenced a relationship when she was sixteen, and had lived together from the time when she was 18 years old. He was four or five years older than his victim. The accused was born in Chile, his partner also from South America. He was jealous. They separated once after she had used insulting language to his family, but later reunited, although the deceased remained ambivalent about the relationship. The accused gave evidence that the deceased had announced that she did not love him, and was seeing someone else, and announced angrily, and with obscenities, that she would have sex with whoever she liked, and that her lover was better than the accused. The accused said he lost control and the deceased was killed, although he claimed to have been acting in a dissociated state. The Court held that the trial judge was correct to have withdrawn provocation from the jury. Charles J.A. made an extensive review of the authorities and addressed an argument that it was a case of "mere words". Charles, J.A. held:

"I do not approach the question of provocation on the basis of any principle that `mere words' can never amount to provocation such as would reduce the charge of murder to manslaughter. Having regard rather to the statements of principle in Masciantonio, the trial judge was, I think, correct to conclude that the issue of provocation should not be left to the jury on the circumstances of this case. Hurtful and humiliating though the words used by the deceased may have been to the applicant, no reasonable jury, taking the case at its highest in terms of the evidence relied on to support provocation, could have concluded that the words used by the deceased could have caused an ordinary person to form an intention to inflict serious bodily harm or death."

Ms Dixon, for the applicant, submitted that mere words, if of a sufficiently provocative character, could constitute provocation so as to require the issue to be left to the jury, but she submitted that, in any event, the provocation here did not solely consist of words but included provocative conduct on the part of the deceased. Ms Dixon maintained that the "conduct" was both the refusal to provide food and the retaining of the locked door. Counsel submitted, however, that the behaviour of the deceased might more appropriately be regarded as manifestations of a broader conduct, namely, the rejection of the applicant in his time of need and the dashing of his anticipation that they would resume their relationship.

Mr Gyorrfy submitted that the lawful acts of the deceased in maintaining her locked door and in refusing to permit entry to the applicant for the purpose of him being fed, were not acts capable of being identified as provocative acts. Not only was it lawful, it was entirely understandable, Mr Gyorrfy submitted, that Ms Mani would have kept her door locked against a man who was no doubt angry and had previously used violence towards her.

Whilst recognising that the evidence must be taken at its highest in favour of the applicant, and that it is for the jury, not the trial judge, to determine disputed facts, it seems to me that Mr Gyorrfy is correct in his analysis of the suggested provocative acts. Those factors - the locked door and the denial of food - could not be regarded, in themselves, and in isolation, as being provocative acts. They would, however, be appropriately taken into account for purposes of the subjective test, because the gravity of the provocative conduct is judged by reference to the situation of the accused and the history of the relationship.[39] Thus, the rejection of a relationship, expressed by words of abuse, might well have stung even more fiercely by virtue of the emphasis provided by the locked door and denial of food.

Furthermore, even when applying the objective test the factors of the locked door and the denial of food are not matters of irrelevance on the question of provocation. In Moffa Barwick, C.J. held[40] that the objective test required examination of the totality of the deceased's conduct, and the jury had to view the situation in its entirety. Gibbs, J. held that "acts and words which considered separately could not amount to provocation may in combination, or cumulatively, be enough to cause a reasonable person to lose his self-control and resort to the kind of violence which caused the death"[41]. Gibbs J held that "everything the deceased said and did" on the day of her death had to be considered in determining whether there was provocation. Those observations were accepted by the High Court in Stingel[42].

For the purpose of the objective test, in this case, it is the words and the fact of rejection which constitutes the provocation against which the self-control of the ordinary person is to be judged, set against the backdrop of all of the events of the day, including the request and denial of food, and the maintenance of the locked door. However, for reasons which I will develop, in my view, even if the provocative conduct, or some of it, was to be regarded as constituted by words alone, it was open to conclude that they were words which, as a matter of law, could be regarded by the jury, in the circumstances, as constituting provocation by virtue of them being of a "violently provocative character".

Although his Honour concluded that the subjective test might be answered in favour of the applicant, this Court must make its own determination of that question as the consideration of the objective test cannot be divorced from the evaluation just made for the subjective test.

If provocation is left to the jury they must first, by way of preliminary to applying the objective test, assess the gravity of the provocation by reference to the personal characteristics and situation of the accused, including age, sex, race, ethnicity, physical features, personal attributes, personal relationships and past history[43].

Ms Dixon submitted that in evaluating the seriousness of the provocative conduct, as it impacted upon the applicant, regard had to be paid not only to his youth but also to his race and religious upbringing. The conduct in failing to provide food to the applicant was said to be particularly offensive to members of the Hindu community. In addition, so it was said, within the Hindu community such importance is placed on the role of the family, and respect for parents, that the language used was of far greater import than might be the case for people from other ethnic communities.

There was evidence before the jury, from the father and sister of the applicant, among others, as to the cultural significance of the suggested conduct of the deceased and as to the inappropriateness of the relationship as perceived by family members, and conveyed to the applicant. The applicant's father said that it was a "very big shame" in his religion, for his son to live with a woman who had already lived with two men. He said that the disgrace of one member of the family shamed all. He said that his son had ceased attendance at prayer meetings after starting the relationship. The applicant's father said that the words attributed to the deceased would be very insulting to a Hindu person. As noted earlier, the Hindi interpreter said that the words used would be deeply hurtful and insulting to Hindu people.

The applicant's sister, Mamta Sbeghan, said it was a very shameful thing for a Hindu woman not to cook a meal "for husband". She said it was a woman's job to cook for her male "partner".

Some limited evidence also came from witnesses related to the deceased. An uncle of the deceased said he also felt shame about his niece having a boyfriend after leaving her husband, but he said that had nothing to do with his religion or culture.

There was very little evidence of any particular cultural dimension to the impact the words and conduct of the deceased might have on the applicant. The suggestion that there was an obligation to feed him relates to female partners in a continuing relationship, which this was not. The importance attributed to family among members of the Hindu faith does not seem to me to differ from that which would be claimed by members of most, if not all, faiths and races. To the extent that some allowance might reasonably be made by a jury for the added gravity, for the applicant, introduced by such factors, the allowance would be very modest.

Ms Dixon submitted that the evidence, taken at its highest in favour of the applicant, showed that that the applicant had travelled to Melbourne at the invitation of the deceased. When he approached the unit he was in need, having crashed his car the night before, and having slept in the car and not eaten for two days. The rebuff was particularly serious, Ms Dixon submitted, because the applicant, having committed himself to the relationship with the deceased, had gone against the wishes of his parents and family, and had effectively "burnt his bridges" for the deceased. In those circumstances the abuse of his parents and family members was couched in terms which the deceased must have known were particularly provocative, and she knew that an earlier separation had occurred after she had on that occasion also insulted the family of the applicant, so that he had got enraged and struck her. The abuse directed towards the applicant and his family and the emphatic rejection of his attempt to revive the relationship was particularly painful because of his immaturity and lack of experience in relationships with women, so it was submitted.

Having regard to the ferocity of the attack made on Ms Mani, and to the circumstances when viewed in the light most favourable to the applicant, I agree with his Honour's conclusion that there was material capable of satisfying the jury as to the subjective test.

The task of assessing whether conduct is of sufficient provocative character to justify the defence being left to the jury continues to be one which bedevils the criminal justice system, and judicial opinions often differ[44]. Difficulty usually arises with respect to the requirements of the objective test.

In deciding whether there is sufficient evidence of provocation to go to the jury it is necessary to have regard to the whole of the conduct of the deceased on the relevant day, because acts and words which in themselves might not be provocative must be taken with such other acts and words as might combine to make one act or word "the final straw"[45]. Ms Dixon submitted that it is appropriate in this case to look at conduct beyond events of the last day, because the events over previous weeks and months provided the essential backdrop to the conduct on the final day.[46]

There is difficulty in seeking elucidation of principle by means of close examination of the facts in the many cases in which the issue has been discussed by appellate courts. Ultimately, the courts draw an intuitive conclusion as to whether a given set of facts and circumstances is capable of causing the ordinary person to so lose self-control as to form an intention to kill or to cause really serious injury. Having acknowledged the need for caution in that respect, however, the facts of other relevant cases can provide some insight as to the shifting standard of self-control which the ordinary person has been required to possess.

I add some notes of caution. It is easy to overlook the fact that any appellate decision on the topic must concern either a case where provocation was left to the jury but failed, or a case where the defence was not left. I do not address cases where the defence was left, and succeeded. It is to be kept in mind, too, that any attempt to summarise the facts of a decided case is likely to omit minor facts and circumstances which can nonetheless be important in setting the scene in which violent acts occur, and which might colour the totality of the situation in the eyes of a jury.

In Stingel, the accused was nineteen years of age. He was infatuated with and jealous of his former girlfriend, who had severed the relationship. His possessiveness, threats of violence and obsessive conduct (including stalking, and threats to kill her so no one else could have her) had caused her to take out an intervention order against him. The former girlfriend had later boyfriends, and the accused had frequently followed the couples, making a nuisance of himself. One of those boyfriends later became the victim. On the evening of the killing, at a football function, the new boyfriend punched the accused. Later that evening the accused followed and approached the parked vehicle in which the woman and her boyfriend were having sexual relations. With the words "piss off, you cunt, piss off" the boyfriend ordered the accused to depart. He removed himself, smoked a cigarette, obtained a knife from his car then stabbed the boyfriend to death. The High Court held that that conduct was incapable of meeting the objective test for provocation.

The Court in Stingel held that in evaluating the gravity of the provocative conduct the comments made to the accused (having regard to the relevant attributes and relationships, present and past of the accused) were capable of being viewed as insulting, profane and dismissive remarks to a person who had a past relationship with the woman and who considered he was being protective of her interests and concerned for her welfare with the new boyfriend. The Court held that even having regard to the gravity of the provocation in that light it nonetheless was incapable of meeting the objective test. In so concluding the Court considered the relevance of the infatuation and jealousy of the accused and accepted that his infatuation was a factor which might have reduced his power of self-control for the purpose of the subjective test. His infatuation, however, was not relevant to the objective test. The Court concluded that the infatuation "cannot be seen, for the purposes of the objective test, as diminishing the power of self-control of the hypothetical ordinary person." The conduct of the deceased on the night, viewed with the gravity that the accused might have given it, "was not of such a nature as to be sufficient to deprive any hypothetical ordinary nineteen-year-old of the power of self-control to the extent that he would go to his own car, obtain a butcher's knife and fatally stab the deceased with it". The Court held that no jury acting reasonably could have entertained a reasonable doubt as to that conclusion.

In Green v. The Queen[47], the majority concluded that a non-violent homosexual approach to a person sensitive to sexual abuse (because of abuse by his father of his sisters, rather than himself), was capable of being regarded by a jury as provocation which might cause a loss of self-control and the formation of an intention to kill. The judges in the minority, Kirby, J. and Gummow, J., both concluded that to permit such conduct to constitute provocation would be contrary to the minimum standards of behaviour for a civilised society which was the duty of judges to oversee and maintain.

Gummow, J. held that the effect upon the accused of the past conduct of his father was unrelated to any conduct of the deceased towards him. The ordinary person, invested with the personal beliefs and attitudes which his father's conduct had caused in the accused (those factors, contrary to the common law position, being imported by the statute in that case), would not have so lost self-control as to kill the victim, who was not the author of the past conduct of the father, nor knew of it or made any reference to that history. Thus, it was not open to a reasonable jury to conclude that an ordinary person might have done what the accused did.

Kirby, J. agreed that provocation was not open. Brennan, C.J., Toohey, J. and McHugh, J. all concluded that the defence was properly left to the jury. I will return to this case, later.

A brief reference may be made to the facts an outcomes in some other cases.

In Masciantonio the High Court held that provocation should have been left to the jury with respect to two separate stabbing incidents, not just one. The provocation was said to emanate from the victim, the son-in-law of the accused, who had been violent to the daughter of the accused, had caused financial difficulties for her, had left her, and when challenged verbally by the accused had responded by pushing then trying to kick him, telling him to "piss off". The accused got a knife and stabbed the victim at one location, then followed the victim and stabbed him again on a footpath some distance away.

In Tuncay the Court held that provocation should not have been left to the jury. The provocation there between a Turkish husband and wife was the wife saying she was leaving because of the husband's drinking, and that she would find a person who adhered to her religion. The accused said he would suicide if she left and she, in effect, said that would make her life easier, whereupon he killed her.

In R. v. Abebe[48] an Ethiopian man killed a person of the same race who he believed was having an affair with his wife, an Eritrean person from whom he was separated. Rumours of the relationship between the wife and her friend had circulated, causing the accused shame within his community. On the day of the death his wife had told him, in the presence of the deceased, that they were lovers, whereupon the deceased smiled in a condescending way. There was evidence that in the accused's culture it was regarded as wrong for a wife to share a table, as she then was doing, with a man to whom she was not married. The accused first stabbed his wife, then killed her lover. The prosecutor conceded that provocation should be left to the jury; the Court of Appeal did not suggest that that was an inappropriate concession to have made[49].

R. v. Bohay[50] graphically illustrates the differences of opinions which these cases can cause among judges. In Bohay the accused was 18 years old. The provocation was the behaviour, in the victim's hotel room, of the drunken victim making advances to the girlfriend of the accused, touching her breasts on five occasions during the evening. The accused invited the victim to step outside the building and then assaulted the victim, and after doing so requested his girlfriend to hand to him the knife she was holding, whereupon he killed the victim. On appeal, Stein, J.A., with whom Greg James, J. agreed, held that provocation was properly left to the jury, but Hulme, J. disagreed, concluding that the objective test could not be met. In concluding that there was sufficient evidence to leave the defence to the jury Stein, J.A. nonetheless described the suggested provocation as "a very thin case, even far-fetched[51]". Because there had been errors in the directions to the jury on provocation the court had to determine whether those errors had caused a miscarriage of justice. Notwithstanding having concluded that the defence should have been left to the jury, Stein, J.A. concluded that there was no miscarriage of justice because:

"(N)o jury acting reasonably could fail to be satisfied beyond reasonable doubt that the conduct of the deceased was not of such a nature as to be sufficient to deprive any hypothetical 18-year-old, provoked to the same degree as the appellant was or might have been, of the power of self-control to the extent that he would form either an intention to kill or to inflict grievous bodily harm . . . or would have entertained a reasonable doubt about whether the objective test . . . was satisfied"[52].

It is difficult to draw any clear principle from analysis of the facts in those cases[53]. It is tempting to conclude that if the opinions of judges vary so much as to what might or might not constitute provocation the question should be left entirely to the jury. However, although attitudes may change within the community on such matters it has been a constant feature of the law of provocation that a measure of self-control has been required to be exercised by the ordinary person, for reasons of legal policy, and notions of fairness and justice, and that it is the task of trial judges to ensure that appropriate standards of self-control are not abandoned by juries. The need for a continuing oversight by the trial judge has been repeatedly affirmed, and the judge has the task of assessing, as a matter of law, whether suggested provocation was capable of constituting a defence.

Kirby, J., in Green, said that such an oversight role was necessary if we were to avoid jury verdicts which offended the community's sense of justice by condoning or indulging ferocious conduct by those violent people who chose to take the law into their own hands. His Honour said that it was necessary to maintain objective standards of behaviour for the protection of human life[54] and he cited Packett v. The King[55], in which Dixon, J. held:

"The reason why the question whether any matter alleged is capable of constituting provocation is made a matter of law lies in the main in the necessity of applying an overriding or controlling standard for the mitigation allowed by law. At common law the test of provocation is not whether the occurrence is sufficient to deprive the particular individual in question of his self-control, having regard to his nature and idiosyncrasies, but whether it would suffice to deprive a reasonable man in his situation of self-control".

In Stingel the Court said that the objective test was maintained so as to ensure a uniform standard of the minimum powers of self-control, which the community required before a defence of provocation was to be availed. Their Honours added[56]:

"No doubt, there are classes or groups within the community whose average powers of self-control may be higher or lower than the community average. Indeed, it may be that the average power of self-control of the members of one sex is higher or lower than the average power of self-control of members of the other sex. The principle of equality before the law requires, however, that the differences between different classes or groups be reflected only in the limits within which a particular level of self-control can be characterized as ordinary. The lowest level of self-control which falls within those limits or that range is required of all members of the community. There is, however, one qualification which should be made to that general approach. It is that considerations of fairness and common sense dictate that, in at least some circumstances, the age of the accused should be attributed to the ordinary person of the objective test."

Although the trial judge has an obligation, in appropriate cases, to remove the defence from the jury's consideration, it is by no means clear what objective criteria the judge must apply when adopting that role of overseer of community standards. The objective test, couched as it has been in vague and general terms concerning the minimal standards of self-control acceptable to the community, invites disagreement among judges when the test comes to be applied in any given case. In those circumstances there is a real risk that the decision whether the defence should be left to the jury will be affected by the judges' views of what a reasonable person should or should not do when confronted by the suggested provocation - that is, by a moral judgement of what minimal standard of self-control ought to be applied - rather than by reference to what a reasonable jury might regard as being the ordinary person's reaction to the suggested provocation. Although applying what is said to be an objective standard, the trial judge must inevitably be applying his or her own moral standards and be adopting an approach which is as much subjective as it is objective. In my opinion, the objective standard does not involve the imposition of a "moral" standard at all, and certainly not a moral standard which varies as between particular categories of killings. It is meant to be a standard which is imposed in all cases, to ensure that principles of equality and individual responsibility are not undermined by allowing those who are least capable of exercising self-control, and most quick to anger and kill, to set their own standard whereby killing might be excused[57].

There is an additional danger, too, when applying the objective test. Whilst the authorities make it clear that the question whether the defence should be left to the jury is one which must be evaluated upon the view of the evidence most favourable to the accused, it is very easy for a judge, having heard the evidence, and without appreciating that he or she is doing so, to act upon his or her own assessment of the facts, whereas a jury, whose province it is to decide facts, might have come to a different conclusion as to those facts.

In Green Kirby, J. argued strongly that the objective standard necessitated that the defence should have been denied to the jury in that case. His Honour considered that the "basic measure of self-control" which the objective test imposed would be negated if the appellant were permitted to rely on the defence before the jury. The suggestion that an ordinary 22-year-old male would so lose self-control, when a non-violent homosexual approach was made to him, that he might form an intention to kill or to grievously injure the deceased "should not be accepted by this Court as an objective standard applicable in contemporary Australia"[58]. That proposition merits unqualified acceptance but it carries with it a number of assumptions. In the first place, it assumes that it was unarguable that the approach was non-threatening (which was probably so, but not necessarily so, in that case). Secondly, it assumes that the judge must step in because the jury might uphold the defence if it were left to it. His Honour makes that consideration clear by saying that without the objective standard provocation would be available to a person who failed to exercise the degree of self-control that might reasonably be expected of an ordinary member of society and "this would result in jury verdicts and outcomes which would seriously offend the community's sense of justice by apparently indulging, or condoning, unrestrained "human ferocity""[59].

His Honour's concern about the response of a jury to the so-called "homosexual advance defence" was underlined by statistics highlighted in his judgment. That basis for a provocation defence had been advanced by sixteen accused in homicide trials in New South Wales in two years. Of those, two had been acquitted (presumably having run alternative defences), two had been convicted of murder, three of manslaughter, eight had been dealt with as pleas of guilty to manslaughter, or lesser offences, and one was a no-bill.

As to those cases where a jury had reasonable doubt about provocation the implicit assumption is that the defence should not have been permitted and the accused should have been convicted of murder. The further implicit assumption is that only an unreasonable jury (or, perhaps, a misdirected one) could have come to that conclusion. It may be thought, however, that the very fact that there had been such acquittals demonstrated that the facts were not as clear cut as may be assumed by lumping all of the cases under the same heading. The requirements of the objective standard may well have been uncertain in those cases.

In Green, Kirby J was in the minority. The three judges in the majority held that the defence should have been left to the jury, thus demonstrating that in their view a reasonable jury could have acquitted the accused of murder.

The concern about maintaining community standards of the minimal requirements of self-control is, as Kirby, J. demonstrated in his history of the defence, a fundamental reason for the maintenance of the objective test, and for imposing a duty on judges to oversee the application of the defence. His Honour gave other examples of the need for the objective standard to be maintained. A hater of Jews, or Catholics, or a misogynist might be permitted to employ the defence after killing an object of his hatred who offended him in some way. His Honour also gave the example of a mafia member so outraged at criticism of his leader that he killed the critic. His Honour said that it is one thing to accept that the personal idiosyncracies and hatreds might explain why the person actually lost self-control but, his Honour said, the "the objective standard of the self-control of the ordinary person"[60] had to be applied.

In Stingel[61] the purpose of the objective standard was said to be "to provide an objective and uniform standard of the minimum powers of self-control which must be observed" before murder can be reduced to manslaughter. The question arises whether that standard might equally appropriately be applied by a properly instructed jury? Clearly, judges often disagree as to the application of the standard. If, having been properly instructed, the jury accepted the defence can it be said that that would "seriously offend the community's sense of justice", or, at least, any more so than might judicial disagreements? Even if it did, would that not have to be balanced against the community's expectation that the defence of provocation would be equally available to all accused where there was some material which might support it? It must be kept in mind that a properly instructed jury would be directed in terms discussed in Stingel[62], so that the jury would be instructed that they were not to ask themselves the question "How would I respond to this provocation?". It would be wrong for a juror "to substitute himself or herself, with his or her individual strengths and weaknesses, for the hypothetical ordinary person".

It is clear that judges are obliged to maintain their supervisory role, but they should not too readily remove the jury from the equation. In the difficult cases which Kirby, J. postulated the intervention of the judge would occur because the suggested provocation was not capable of constituting that defence. Thus, his Honour's analysis in Green applies the test in Masciantonio,[63] in determining that it was not open to conclude that the suggested provocation could cause an ordinary person to respond by forming the relevant intention.

That rationale for intervention would usually be clear in most of the difficult types of cases which his Honour identified, but less so in others. It might be readily understandable, for example, to withdraw from a jury a claim to provocation by a racist bigot who said he was inflamed by conduct which, without a racist perspective, would be incapable of causing any ordinary person to lose self-control. The defence would be withdrawn, in that case, not out of fear that the jury might mirror the racism of the accused, but because the ordinary person, for the purpose of applying the objective test, was non-racist, the accused's age being the only characteristic of his own to be attributed to the ordinary person[64]. Thus, there was no conduct capable of causing an ordinary person to kill in those circumstances.

That will generally be an adequate justification for intervention. The ordinary person is required to be non-racist, not homophobic, not anti-semitic, not anti-Catholic, not a misogynist. Indeed, the ordinary person is required to be without gender[65], religion, race, or political persuasion, let alone be imbued with bigotry or racism. The judges can not, however, approach any case with an assumption that it falls into a category where the defence is not open, whatever the facts. As Green shows, opinions may differ as to what the facts of a case are capable of demonstrating. In Green, McHugh, J., for example, considered that the fact that the approach made by the victim was of a homosexual nature was less important than the fact that, to the accused, who had experienced abuse within his own family from a trusted parent, the approach represented a breach of trust.

Some of the broader concerns raised by Kirby, J. also arise in this case. One of the complaints of Ms Dixon was that the judge saw the issue as raising "competing claims of multiculturalism and feminism" which, she submitted, "may lead to arbitrariness in judicial decision-making and a legitimate sense of grievance on behalf of some accused persons." The question in this case - whether an ordinary 20-year-old might be so inflamed by the conduct alleged in this case as to lose self-control and kill - might well raise concerns that if a jury were to hold a reasonable doubt, and acquit the accused of murder, then it was adopting a standard of subjugation of women by violent men which was antithetical to a civilised society. Some of the reasons of the learned trial judge might be thought to reflect such concerns. That, in my opinion, would not be a valid basis for refusing to leave the defence to the jury where there were items of provocation which might be viewed in a different light by a jury. His Honour was, no doubt, conscious of community concerns and sought to address those concerns in his discussion about the application of the objective test. I do not suggest that his Honour determined the application otherwise than by reference to well established principles, but his Honour's reasons do suggest that, despite his repeated acknowledgment that he must do otherwise, he had formed a view of the facts which was not that most favourable to the applicant.

Whilst accepting that the law of provocation, as it has developed in leading cases, "is not an easy or everyday concept"[66], there is no reason to assume that juries properly instructed would act unreasonably in considering the issue. Given that juries are usually made up of both men and women and of persons of various ages it is difficult to see why the jury should not be regarded as the appropriate forum for determining whether the conduct of the accused went beyond the standards of self-control of the ordinary person.

A judge should be slow to conclude that there is no evidence which a jury - when applying the objective test - might decide justified a verdict of manslaughter. McHugh, J. observed in Mascantonio 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.[67]" The need for caution is especially so where there is evidence (taken at its highest, and however much it might seem implausible to the judge) that the accused had in fact lost self-control in response to identified conduct and words.

The defence of provocation has been the subject of much debate, and not just because the application of the subjective and objective tests can be difficult to explain to a jury[68]. The continued application of the principle has also been criticised within the community, especially in cases where a male partner has killed his female partner and claimed that he had been enraged by comments or conduct of the deceased.[69] That community response is aggravated, no doubt, when, as here, the only account of the victim having said anything provocative is that given by the accused and not repeated on oath. For all of the criticism, however, the defence has not been abolished or modified by legislation. Furthermore, the elements of the defence as they have been articulated by the High Court have support from those who contend that far from it being the case that the tests prejudice the rights of members of a cultural, racial or other minority, the objective test ensures equality of all members of the community under the law, because the required level of self-control is not that of which the bigot, the racist or the violent member of the community is capable, but that of the ordinary person[70].

There is not a category of case in which the law of provocation does not operate, nor a category of cases where its operation is modified. Nor are there categories of cases in which the judge has a fact finding role which usurps that of the jury. The question is not whether the trial judge considers there is a reasonable doubt that the killing was unprovoked, but whether there is material which is capable of constituting provocation[71].

A trial judge does not have the advantage afforded to the appeal court of being able to reserve his or her decision for any substantial time. In this case even though his Honour had extensively reviewed authority he said that had he not had the jury waiting he would have preferred to elaborate on his ex tempore reasons. The learned judge, a very experienced criminal trial judge[72], made a comprehensive review of authority and of academic writings relevant to the law. As the articles to which his Honour referred demonstrated, the application of the law of provocation has been the subject of controversy in cases involving the killing of a woman by a rejected and/or angry male ex-partner, especially in cases where the accused claimed that conduct by the deceased had a particular capacity to provoke him due to cultural or ethnic factors. His Honour, after citing a number of academic writings, said, correctly, that whilst cultural factors might aggravate the degree of provocation offered by certain conduct the law required that the ordinary person not be invested with those cultural or racial characteristics of the accused. His Honour rejected a comment in an academic article to the effect that there was an irreconcilable "conflict of moral imperatives between multicultural and feminist claims of equality". His Honour said that the fundamental, and basic, right to life was paramount.

Having repeated that he would apply the facts in the way most favourable to the applicant and after dealing with the contentions concerning the locked door and the denial of food his Honour turned to what he called "the clear facts of the case". With great respect I do not consider that his Honour's analysis did assess the facts in the light most favourable to the applicant. His Honour said:

"But the clear facts of this case are that the door remained locked, that the accused did not live there, that he went away for half an hour and collected weapons of violence, and that he returned, broke his way into the place of safety of the accused and killed her. In my view, the words and so-called actions fall markedly short of any authority, or any principle, which would warrant their being characterised as sufficient to satisfy a priori the objective arm of provocation. It is, in my view, oxymoronic to suggest that, when a person is in their home, and the safety of their home, that the actions of maintaining that safety can be legally transformed into provocation sufficient to excuse her being slaughtered. I reject that analysis wholly. Accordingly, I conclude that there is no material here in law capable of having the matter of "without lawful excuse" go to the jury. I so conclude, bearing in mind at all times that the facts for the purposes of this ruling must be found to be the facts most favourable to the accused, and that ordinarily it is undesirable for judges to intervene in precluding matters going to the jury. But the law, nonetheless, has some basal requirements, one of which is there must be sufficient in law to be capable of founding the objective arm of provocation. The purpose of the law having the objective arm is, as I have said earlier in this ruling, to maintain some standard of safety in our society, and that is a purpose not lightly to be derogated from."

There is a very fine line between analysing the case in order to assess whether it is open to conclude that the objective test could be satisfied, on the one hand, and, on the other hand, making findings of fact which should properly have been left to the jury. In my opinion, his Honour's analysis involved him, in effect, making findings as to the facts of the case which, however much evidence there was to support his conclusions, were findings which the jury might not have made. Usurpation of the jury's function is an ever-present danger when applying the law of provocation.

In a passage of the judgment of Lord Hoffman in R. v. Smith (Morgan)[73] which was cited with approval by Charles, J.A. in Leonboyer, his Lordship commented that "male possessiveness and jealousy should not today be an acceptable reason for loss of self-control leading to homicide, whether inflicted upon the woman herself or her new lover". The statement of Lord Hoffman as to the standard set by the objective test is, with respect, clearly appropriate, and should have been no less appropriate in any age. The difficulty for the trial judge, however, is determining whether a case truly falls outside the acceptable objective standard. A trial judge when assessing whether the material permits the defence to be left to the jury, must resist making a finding of fact, as to the motivation and conduct of the accused, because those issues might very well be in dispute. That is the case here.

Taken at its highest, the evidence here is not that the applicant killed Ms Mani because he was jealous and possessive, but because he was confronted unexpectedly with her rejection of the relationship, her contemptuous taunts about his family, and her coldness towards him at a time of need. In addition to those factors, on the applicant's version, she not merely announced that she wished to have other relationships, as was her right, but she taunted him by suggesting she had a better lover. Whether this was indeed a killing which was a product of possessiveness and jealousy was a question a jury was well placed to evaluate. If the jury concluded that that was the explanation for the killing then it was in a good position to determine whether that constituted provocation which might cause an ordinary person, in this community today, to so lose control as to do what the applicant did.

The danger of the trial judge usurping the fact-finding role of the jury was also discussed in Stingel. In a statement as applicable to the common law position as to the statutory context, of that case, the Court held that:

"A trial judge must also be mindful of the fact that the question is not whether he or she considers that there is a reasonable doubt that the killing is unprovoked. As s.160(3) makes clear, that is a question for the jury. The question for the trial judge is whether there is material in the evidence which is "capable of constituting provocation". The result is that the question for a trial judge under s.160(3) can be summarized as being whether, on the version of events most favourable to the accused which is suggested by material in the evidence, a jury acting reasonably might fail to be satisfied beyond reasonable doubt that the killing was unprovoked in the relevant sense".

Brennan, C.J. in Green also cautioned about the danger of the trial judge usurping the role of the jury in deciding that provocation should not be left. His Honour said that factual questions as to the motivations of the applicant and as to the significance to be attributed to the words uttered by the deceased (if the jury believed, at all, that they were said) were, he held, "matters for the jury to evaluate in determining the degree of provocation experienced by the appellant"[74].

Determining whether the defence of provocation should be left to the jury is a burden for trial judges. In many ways it would be easier to leave the issue entirely to the jury, a course which the prosecutor in this case said the Crown would have been content to adopt, so confident was he, he said, as to the jury response to the defence. Nonetheless, the prosecutor, when asked by the judge to take a position, said the defence should not be left. The judge agreed. In the joint judgment in Masciantonio[75] their Honours, without disapproval of the practice, made the oft repeated observation that as a matter of practicality a trial judge was likely to lean towards leaving the defence to the jury. As I have shown, opinions as to whether the defence should be left frequently differ, and the consequence of erroneously withdrawing the defence is likely to be a re-trial, a consequence which no one would desire and which causes great inconvenience and anguish to the families of victims and to parties, witnesses and the administration of the courts.[76]

Should provocation have been left to the jury?

For reasons which I have given I consider that the trial judge made errors in his approach to the determination of the question whether the defence should have been left to the jury. On appeal, however, the appeal court must make its own evaluation of that question. The question is whether there was any evidence which was capable of constituting provocation[77]. Dixon, C.J. in Parker v. The Queen said that 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"[78].

In Moffa, Mason, J. concluded that provocation had rightly been left to the jury and, after discussing the questions which the jury would have to consider if provocation was to be negatived, observed:

"The question for us is whether it can be said that no reasonable man could answer these questions favourably to the applicant in light of the account of the relevant events given by him at the trial. For my part, I feel some diffidence in predicting with assurance how an ordinary man placed in the applicant's situation might react if he were confronted with the occurrences on which the applicant relied. 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".

Assessed against those statements of the test which I must apply, I turn to analyse the evidence from the perspective most favourable to the applicant.

The language used by the deceased, if the jury believed she used such language, was deliberately offensive and insulting, and the attack on the character of the applicant's family would no doubt have inflamed him. The deceased must be taken to have known that the applicant would be upset by such language. It was, however, language of such absurd exaggeration and hyperbole that not even the applicant seems to have believed anything said was true, merely that it offended him that it was being said at all. Assuming it was used, it was the sort of gross and hysterical language which common experience suggests might well accompany the break down of any relationship. It is not difficult to conceive that an ordinary person in such circumstances might become angry, might possibly damage property, might even become violent. I find it difficult to conceive, however, that a reasonable jury could conclude that such language, or conduct, in denying entry to the flat or resumption of the relationship might cause an ordinary person to so lose control as to form the intention to kill or cause really serious bodily injury. The one reservation I have is whether an ordinary jury might have a reasonable doubt as to whether a reasonable person who was only 20 years of age might so react.

No doubt a failed relationship might be responded to more emotionally and passionately by a 20-year-old person than by an older person, whose experience of life and appreciation of the probability of recovery from its disappointments, would be greater. As the Court observed in Stingel,[79] (when allowing age as the one characteristic of the accused with which the ordinary person might be endowed), "as a broad generalisation, it is true to say that the powers of self-control of a young adult of eighteen or nineteen years are likely to be less than those of a more mature person". Similar comments might be applied to a 20-year-old. The Court held that it was appropriate that age be taken into account "at least in any case where it may be open to the jury to take the view that the accused is immature by reason of youthfulness".

When it is accepted that for the purpose of the objective test the ordinary person is not an unusually volatile 20-year-old, nor a person with unusual immaturity (that is, over and above the immaturity which an ordinary 20-year-old might be expected to exhibit), nor is a person with a particular ethnic or racial background, then so much more compelling seems the answer that no reasonable jury could have a reasonable doubt whether an ordinary 20-year-old person, for whom the gravity of the provocation was as great as that felt by the accused, might be so provoked by the provocation in this case as to lose self-control and form the intention to kill or to cause really serious injury.

In my opinion, however, and applying the words of Mason, J. in Moffa, I cannot say that no reasonable jury could answer this question favourably to the applicant. It follows that the defence of provocation, in my view, should have been left to the jury.

The failure to allow the jury to consider a defence which was open to an accused person, especially where it was the only defence realistically open to the accused, as was the case here, constitutes so fundamental a failure in the conduct of a fair trial as to render it impossible to apply the proviso to s.568 of the Crimes Act 1958 [80]. In my opinion, therefore, the appeal against conviction should be allowed and a new trial should be ordered.

As I am in a minority with respect to the outcome of the application for leave to appeal against conviction it is appropriate that I deal with the application for leave to appeal against sentence, which falls to be determined by the Court.

Of the three grounds of appeal listed in the Notice of Application for Leave to Appeal, only grounds 1 and 3 were argued. Those grounds were as follows:

"1. In the light of the circumstances of the offence and the age, family and cultural situation and antecedents of the applicant, the head sentence and minimum term are manifestly excessive. 3. The learned sentencing Judge erred in that he gave too much weight to the absence of expressions of remorse by the applicant in the material before him."

I deal first with the ground relating to the question of remorse. In his sentencing remarks the learned trial Judge made the following observation:

"You have no remorse for your crime. None. Your conduct after the event, your Homicide Interview, my observations of you in Court and even the report of the psychologist tendered on your behalf on the plea all show your lack of remorse. You are of course not punished for that lack; but remorse as a harbinger of reformation cannot be called in aid on your behalf."

It was not disputed that at no point in the record of interview did the applicant express remorse for the death of Ms Mani. Likewise, in the comprehensive report from forensic psychologist, Mr Ian Joblin, which was tendered during the submissions on sentence, there was no indication of remorse, a significant omission as Mr Joblin, a very experienced psychologist, undoubtedly explored that question with the applicant. Ms Dixon proffered possible explanations for the omission of any statement of remorse on either occasion, but they were not convincing, and in my opinion, his Honour was entitled to conclude that there was a complete absence of any expression of remorse for the death of Ms Mani. In contrast, the applicant did express deep regret for having gone against his parent's wishes and advice as to his relationship with the deceased, and he said that he had apologised to his parents for rejecting their advice.

The absence of remorse is relevant to the prospects of rehabilitation of the offender but is not an aggravating factor for the purpose of sentencing. Ms Dixon submitted that although his Honour had acknowledged that sentencing principle he had, nonetheless, placed so much weight on the factor of remorse as to have treated it as an aggravating factor. The length of sentence imposed reflects that response on the question of remorse, Ms Dixon submitted.

In my view, his Honour did not err in his treatment of the factor of remorse. There is no indication, at all, that the applicant has felt, let alone expressed, any remorse for what he did. The emphasis given by his Honour to the lack of remorse was relevant because rehabilitation was an important consideration in sentencing a person who was only 20 years old at the time of the offence and 22 years old at the time of sentencing. Remorse was also a relevant consideration when assessing the question of specific deterrence.

In this case the absence of remorse was properly to be taken into account. Given the conclusion I have reached as to the other ground of appeal it is not necessary that I determine whether ground 3 is made out. Having concluded that the sentence imposed was manifestly excessive it becomes unnecessary to determine whether that was, in part, due to his Honour giving too much weight to the absence of remorse. I turn then to consider Ground 1.

The primary ground relied on related to the question whether the head sentence and non-parole period were manifestly excessive. Ms Dixon submitted that the killing was a crime of passion committed by a young and immature man who had been overwhelmed by the emotional effect of the relationship and its failure.

In sentencing the applicant his Honour took into account the fact that he would serve his sentence in Victoria, thus isolating him from his family who reside in Queensland. He was also under mainstream protection in custody. His Honour said that he took into account that all of the interests of the applicant as a young man were channelled towards the deceased, and he accepted the opinion of forensic psychologist, Mr Joblin, that the applicant's immaturity bore upon his difficulty of resolving his personal and emotional situation in the relationship. His Honour said that he took into account the youth of the applicant at the time of the offence and at the time of sentencing and the judge said that factor, of itself, would be reflected in there being a longer term of eligibility for parole than his Honour said he would normally direct.

His Honour identified a number of exacerbating features to the crime, in particular the fact that the deceased was in her own home, having moved from Queensland for the very purpose of avoiding contact with the applicant, against whom she had obtained a protection order. The applicant killed the deceased knowing that she had contacted the police in order to be protected from his unwanted approaches. His Honour held that the ferocity of the attack reflected the extreme punitiveness of the applicant in committing the crime and his Honour not unreasonably concluded that factors of general and special deterrence were of importance in this case.

In the report by Mr Joblin the applicant was described as a person who was intelligent and showed good insight and who placed heavy emphasis on family relationships. In his interview with Mr Joblin the applicant stressed the sacrifice which he had made for the relationship with the deceased, severing ties with his parents and also with friends of his own age. He was "besotted" with the deceased and, Mr Joblin reported, the relationship had become "all encompassing" for the applicant. Mr Joblin reported that the conflict which arose between the applicant and the deceased occurred because the applicant recognised "that the change he had made in his values and attitudes to life was superficial and no longer provided him the psychological gratification it had or needed to have to overcome his guilt and embarrassment over what he had done to his parents and his own life. He felt he had 'burned his bridges' by placing such a strong emphasis on the relationship with the deceased."

Mr Joblin was of opinion that in the lead-up to the killing "this man's psychological confusion and conflict had increased to an intolerable level." His attempts at reconciliation arose in the context of the applicant's perception, as stated by Mr Joblin, that "(h)e had made a considerable spectacle of himself, rejecting all the appropriate values in favour of this relationship and now was in trouble as that relationship no longer provided the requisite gratification." Mr Joblin said that in his opinion "That psychological conflict continued and escalated to an intolerable level, culminating in the dreadful morning of February 7 1999". Mr Joblin concluded that the killing arose out of the incapacity of the applicant to cope with the serious psychological conflict which had arisen from all of these issues. Mr Joblin was of the opinion that with maturity the applicant may have been able to deal with those conflicts more appropriately or might have sought assistance from others such as his parents, but that was not available to him at the time. Mr Joblin said that the applicant did not have the psychological fortitude or experience to seek other methods of coping "with the profound psychological conflict".

Ms Dixon submitted that the factors identified by Mr Joblin, in particular the youth and immaturity of the applicant, were not given adequate weight in the sentence which was imposed. Ms Dixon submitted that the applicant's prospects for rehabilitation should have been regarded as good, but the sentence reflects that his Honour did not draw that conclusion. The prospects of rehabilitation were enhanced by the fact that the applicant had reunited with his family and had strong family support. Furthermore, Mr Joblin had concluded that there was no psychiatric dysfunction or deviant personality traits in the applicant's make-up and those factors, too, were positive factors bearing upon his prospects of rehabilitation.

Counsel contrasted the sentence of 20 years with a non-parole period of 16 years, which was imposed in this case, with the sentence imposed in the case of R. v. Leonboyer[81]. In that case the same trial judge imposed a sentence of 18 years with a non-parole period of 14 years, but the Court of Appeal held that there were sentencing errors which required that the applicant to be re-sentenced. The Court of Appeal, therefore, applied its own discretion as to sentencing, and substituted a sentence of 15 years with a non-parole period of 11 years.

Whilst there were a number of similarities between the two cases, it must be noted that there were differences also. In the first place, Leonboyer had repeatedly expressed remorse and the killing occurred at a time when, as the Chief Justice found, he was in a highly disturbed state of mind, albeit not constituting automatism. Additionally, the relationship between the deceased and the applicant in Leonboyer was one where both parties to the relationship were equally jealous, one of the other, and where the deceased had played "mind games" in the weeks leading up to her death, such action having contributed to the state of mind of the applicant at the time of the killing. A further important factor was the fact that Leonboyer had had a lengthy period of uncertainty and delay, including two trials, which had imposed an oppressive burden upon him.

Leonboyer also had no prior convictions, whereas the applicant in this case had prior convictions. One was for assault on the deceased in July 1998, for which he was convicted and fined, and he also had a conviction for theft in June 1997, for which he had been fined. His Honour observed that those prior convictions were not of particular seriousness, in themselves, but they meant that when assessing the applicant's prospects of rehabilitation, he was not entitled to be given the credit which an absence of prior convictions would have entitled him.

Ms Dixon also referred to R. v. Abebe,[82] but that was a case where the sentence of 12 years with a non-parole period of 9½ years had been the subject of an appeal by the Director of Public Prosecutions. It became unnecessary for the court to resolve the sentence appeal because the appeal against conviction was allowed.

There is limited value to be derived from comparing one case with another. As is often said, a conclusion that a sentence is manifestly excessive does not admit of much argument; it either appears to be so or it does not. I am drawn to the conclusion that both the head sentence and non-parole period were manifestly excessive.

Whilst there were many aggravating factors in this crime I have concluded that his Honour gave insufficient weight to the youth of the applicant. I do not consider that the prospects of rehabilitation of the applicant were poor, notwithstanding his lack of remorse, which I consider was itself a reflection of his immaturity.

In the case of a youthful offender, especially a first offender, rehabilitation is usually a far more important consideration than general deterrence: see R. v. Mills.[83] As has been made clear in numerous decisions, however, that is a principle having general application and does not override other sentencing considerations. In an appropriate case the factor that the offender is a young person must give way to other sentencing considerations.[84] In my view, this is a case where the seriousness of the crime is such that the factor of rehabilitation was appropriately reduced as against the considerations of general and specific deterrence. The factor of rehabilitation was not, however, of as little significance as I consider the learned sentencing judge allowed. The sentencing judge said that he was fixing a shorter than usual non-parole period, having regard to the youth of the applicant, but, with respect, the gap between the head sentence and non-parole period which he fixed does not seem to me to be other than conventional.

154 This was a terrible crime, committed in the home of the deceased. The sentence must acknowledge not just the suffering and terror which the innocent victim must have experienced but also the pain and suffering of her loved ones, as reflected in their victim impact statements. The learned sentencing judge rightly expressed denunciation of the conduct of the applicant. The evaluation and application of the many sentencing principles which the Sentencing Act 1991 requires be taken into account is a difficult task. Denunciation and punishment of the offender are very important considerations, but other factors must also be evaluated and assessed, and whilst the learned judge did conduct that evaluation I consider that the conclusion he reached betrays error in not giving appropriate weight to the youth of the offender and his prospects of rehabilitation.

In my opinion, the sentence was manifestly excessive. I would allow the application for leave to appeal against sentence and would set aside the sentence. Given that I am in the minority in reaching that conclusion it is inappropriate that I say anything further as to sentence.

I have had the advantage of reading in draft the judgment of Eames, J.A. I am most grateful to him for his thorough presentation of the facts and his analyses of the authorities. I have the misfortune to disagree with his conclusion that the trial judge erred in withdrawing provocation from the jury and that as a consequence a new trial is required. I shall now explain my reasons for deciding otherwise.

As the detailed history of the relationship revealed, it was marked by violence on the part of the applicant towards the deceased, court intervention and separations at the instigation of the deceased, in the period of 18 months before the deceased left Queensland and moved to suburban Melbourne in December 1998.

Curiously perhaps, the deceased wrote an affectionate letter to the applicant about mid December. Events from the end of December, when the applicant

followed the deceased to Melbourne and some consensual sexual activity occurred between them, but was not accompanied by a resumption of cohabitation, gave the applicant some expectation that the relationship might be resurrected. The applicant returned to Queensland and appeared in the Ipswich Magistrates' Court on 3 February 1999 for a domestic violence case arising out of an incident in September 1998. The case was withdrawn and the applicant set out from Ipswich in his motor car on 4 February to drive to Melbourne. He arrived in Melbourne on 6 February.

The facts described in the evidence before Sunday morning, 7 February 1999, are background to the violence which occurred around 9.30 a.m. on that day in the deceased's unit in Thomastown. They simply provide background for the killing and in no way can be used as provocative conduct excusing or diminishing the killing. The background facts do not even provide evidence of a motive for the killing.

It was common ground at the trial between the Crown and the defence that when the applicant arrived at the deceased's unit at about 8.30 a.m. on Sunday 7 February, he was refused entry by the deceased. They spoke through the locked screen door and when the applicant requested breakfast, the deceased again refused him entry. The applicant left, the police were called, they attended the unit and spoke to the deceased at about 8.50 a.m.

I agree with the conclusion reached by Eames, J.A. [73] that the deceased's conduct in refusing the applicant entry to her unit and her refusal of food could not be regarded by the jury, acting reasonably, as provocative conduct. The deceased was simply exercising her legal right to deny someone who had no legal right of entry, entry to her residence. Likewise, she was entitled to deny sustenance to the applicant. Her conduct, although not provocative in a legal sense, could, however, be taken into account by a jury in its examination of the totality of the events which occurred on the Sunday morning.

The totality of the events included what the applicant subsequently said to the police were words used by the deceased towards him and his family when they spoke through the locked screen door. Those words, he said, included the deceased swearing at him, swearing at his mother and father, calling him a bastard, saying that the deceased was going to have sexual relations with another man in front of the applicant, saying that he was a dog, that he was of low caste and that his parents were bastards.

The applicant did not immediately react to those words with violence. He simply left the door and did not return until after the police had left the unit. At about 9.20 a.m., 30 minutes or so after the police left, the applicant returned and again knocked on the door. When the deceased declined him entry, he went away again and obtained a piece of pipe from a school yard some 160 metres away and retrieved from his motor car nearby a folding knife about 4 inches in length. Upon returning, he smashed a window of the unit with the pipe and climbed into the room. The objective evidence showed that the applicant brutally and violently killed the deceased. He inflicted between 9 and 13 stab wounds, and also used a meat cleaver he found in the unit to cause 11 chopping injuries. It was a frenzied attack, probably because the applicant lost his self-control.

The applicant subsequently told the police that when he returned to the unit on the second occasion, the deceased had again insulted his parents and threatened to call the police. He said he was so mad he unfolded the knife and entered the unit. He described "a tussle" between them during which he lost his knife and picked up the meat cleaver. His description of the tussle did not raise self-defence as an issue for the jury.

When asked by the police about the words which the deceased had used, the applicant provided the words set out in paragraph [35] of Eames, J.A.'s judgment. The words were insulting and hurtful, but not of a "violently provocative character", in my opinion, nor could they be so regarded by a reasonable jury. The expression: "violently provocative character" was used by Viscount Simon in Holmes[85] without a meaning being ascribed to them. In Camplin[86] Lord Diplock said that up to 1957, when the effect of Holmes was removed by legislation in England, "actual violence offered by the deceased to the accused remained the badge of provocation", with two exceptions. He added that, the exceptions apart, "insulting words or gestures unaccompanied by physical attack did not in law amount to provocation".

It is important to consider the words attributed to the deceased in context. They were used by a female towards a male, unaccompanied by violent conduct from her. They were used by a person who made it clear that she did not wish to admit the male to her unit. She was steadfast in her resolve.

The critical question raised in this appeal is whether the trial judge correctly withdrew from the jury consideration of provocation. In Parsons[87], Brooking, J.A. who delivered the leading judgment in the Court of Appeal, said:

"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. As regards the relevant sense, the question is whether the suggested provocation could have led an ordinary person to lose self-control and 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."

This is the second of two tests for provocation, usually referred to as the objective test. There are many recent authorities where courts have held that a trial judge was, or would have been, justified in withdrawing provocation from the jury because:

"no jury acting reasonably could fail to be satisfied beyond reasonable doubt that the appellant's reaction to the conduct of the deceased fell far below the minimum limits of the range of powers of self-control which must be attributed to any hypothetical ordinary (person)."[88]

It is really not possible, however, to find in the authorities a statement of principle as to when provocation should be withdrawn. The facts in each case determine the question, but are never the same.

I am clearly of the view that the deceased's conduct on 7 February, as described earlier, and by Eames, J.A. in his judgment in much greater detail, could not satisfy the objective test. I consider that the conduct relied upon by Ms Dixon for the applicant fell far below the minimum limits of the range of powers of self-control which must be attributed to the ordinary person. It is not altogether unknown for a wife to lock out her husband from the matrimonial home for what seemed to her to be a good and sufficient reason, or to refuse to provide a meal to him. In my view, for the husband to lose self-control and react in the violent manner demonstrated in the present case, would be far outside what the community would expect from any ordinary person.

This is a case where the objective test must be applied to "mere words alone". In my opinion, the law on provocation has developed to the stage where, as a matter of principle, it may be stated that words which are merely insulting, hurtful and offensive, but are not of a "violently provocative character" cannot satisfy the objective test.[89] Into the equation, account must be taken of the context in which the words were used and the degree of reaction produced by the words. In the present case, the words were no more than insulting, hurtful and offensive, but the applicant's reaction, whether or not attributable to the words, was both extreme and of great ferocity, his intention being to kill and mutilate the deceased.

At a glance

Court

Decision date

Before

Source

Judgment (272 paragraphs)

Parties