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[2001] VSCA 149
Court of Appeal (Vic)
2001-09-07
PHILLIPS, C.J., CHARLES AND CALLAWAY, JJ.A.
Original judgment source is linked above.
[ 2001] VSCA 149
CRIMINAL LAW - Murder - Conscious and voluntary act - Defence of involuntary action by reason of non-insane automatism - Dissociation - Possibility of jury being misled by expert medical evidence - Provocation - Objective test - Gravity of provocation - Personal characteristics of accused - Ethnicity - Whether words alone can amount to provocation - Undue involvement or interference by judge - Whether verdict unsafe or unsatisfactory.
CRIMINAL LAW - Sentence - Prisoner sentenced on incorrect factual foundation.
"1. The learned trial judge erred in failing to leave the issue of provocation for determination by the jury. 2. The conviction of the accused was unsafe and unsatisfactory being against the weight of the whole of the evidence and in the result, involved a miscarriage of justice."
"3. The learned trial judge's participation in the trial process by questioning of witnesses, particularly expert witnesses, together with comments by his Honour during the charge was effected in such a manner and at such times so as to cause a miscarriage of justice."
"4. The verdict was unsafe and unsatisfactory because there is a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled as to (a) the expert evidence concerning the applicant's defence of automatism; and/or (b) the relationship of that evidence to the requirement that the prosecution prove beyond reasonable doubt that the applicant killed the deceased by a conscious and voluntary act or acts."
"The sentence imposed is manifestly excessive in all the circumstances."
"2. The learned sentencing judge erred in finding that: i The applicant had given false evidence as to the conversation in the bedroom with the deceased. ii The wounds were inflicted from behind. 3. The learned sentencing judge failed to give any or any sufficient weight to the circumstances surrounding the commission of the offence, including the disassociation, and the consequent state of mind the applicant was in."
"Dear Sandra, where do I start, how does one begin to express one's emotions? The reason I'm asking you these questions is that I don't have any experience in these matters. I guess what I'm trying to say is that you [being the only one in this relationship that was bothered to act `human']. I guess I've been too busy trying to be superman, but at the same time not realising that being superman also included a sense of humanity. I didn't realise that achieving a high level of excellence at the tertiary level, both at the undergraduate and post-graduate level was insufficient to safe-guard our future. Perhaps it would have been sufficient so far as our financial security was concerned, but I've now realised that financial security by itself seldom fixes a lonely heart. By lonely heart I'm obviously referring to you, Sandra. Perhaps I was oblivious to the whole situation, who knows. One thing is certain, I adore and cherish you. As I have said on many occasions I cannot imagine a life without you. I want you to know that my first-class performance at Bond University, together with my ultimate selection on the Dean's list is largely due to your patience, understanding, love and devotion. I'm convinced that I would not have been able to do it without you, which suggests that I will be eternally grateful. Busco algo que aqui no esta, necessito saber. As Catana says, `What am I going to do if I love you?', te camelo, my darling, I hope you enjoy yourself this Easter weekend and finally realise that I have changed in many important respects. But more importantly I pray to God that you realise how much I love you. With love, Michael Leonboyer." (660-1)
The applicant also relied on other affectionate correspondence and the giving of gifts.
"And I went into her room and she was sleeping, I hugged her and everything was fine. After that, I just don't remember. And my mother came on top of me, she was crying. She was telling me what had happened. I heard voices in the background and so forth. My mother gave me a hug. I told her that - I don't know what I told her. And just everybody came in after that - everybody - ambulance, police. Then I fainted almost, ... ... ... just didn't want to move for a long time after that. And that's it. Went to hospital."
As to ground 1, I have had the advantage of reading the reasons for judgment prepared by Charles, J.A. I agree with his conclusions as to this ground, essentially for the reasons given by his Honour.
The conviction of the applicant was unsafe and unsatisfactory and against the weight of the whole of the evidence. In the result, it involved a "miscarriage of justice".
"To prove the accused guilty of murder the prosecution must prove beyond reasonable doubt: 1. that the accused killed the deceased; 2. by a conscious and voluntary act or acts (that is, that the acts were the product of a conscious mind willing those acts); 3. which were deliberate; 4. with the intention, at the time of inflicting the fatal wounds, of killing the deceased or of doing her really serious injury; 5. without lawful justification or excuse."
There followed definitions of "conscious", "voluntary", dissociation" and "automatism".
* The applicant's childhood, home life, attitudes and problems.
The relevant witnesses for this category were the applicant's sister Frances, his brother Albert and his mother. Their evidence was the subject of comment by some of the expert witnesses. In summary, it was submitted, this evidence conveyed a picture of the applicant having had a troubled childhood and dysfunctional home life. Physical and mental abuse of him occurred. He was sensitive to the issues of sexual morality and infidelity. He had problems of sleep disturbance, anxieties and terrors and a childhood history of fits.
* The applicant's work ethic and achievement drive.
The relevant witnesses were the applicant's sister Frances, his brother Albert and his mother, together with the friend, Arellano who, it will be recalled, visited him in prison when he was on remand. In summary, it was submitted that this evidence showed an obsessive work ethic and achievement drive in the applicant. He sought very high educational attainments with the ambition to become a successful lawyer. He was variously described as dedicated and passionate as to his studies and "highly driven" to succeed.
The relevant witnesses were Chris Tsoronis, at whose home the applicant and the deceased stayed on occasions, the applicant's sister Frances, his brother Albert, his mother, Arellano, Esneider and Hermelinda Gaviria (the deceased's sister and mother), Lina Morales and Claire Broderick. This evidence, it was submitted, conveyed a fluctuating relationship between the applicant and the deceased which involved in the applicant a strong commitment to love, marriage and family life and values. The applicant's sister referred to the relationship as involving "ups and downs, quarrels and split ups". She said they always seemed to get back together again. She referred to a short break-up in March 1997. There was reference to the applicant and the deceased spending nights at hotels or motels. Both were referred to as being jealous although Hermelinda Gaviria denied this in the deceased. There was evidence of an ostensible friendship, no more, between the deceased and Fernando Gonzales in the two months prior to her death. The applicant's mother gave evidence that the applicant and the deceased desired the deceased to become pregnant to the applicant at a point of time which happened to be shortly prior to her death. There was other evidence that at the same time steps were taken to obtain the St Kilda apartment where the applicant and the deceased would live together and, indeed, the witness Broderick, a property manager, gave an account of showing the applicant such a place and the signing, by him, of a lease.
* The violent incident between the applicant and the deceased in mid-1996.
Lina Morales and Hermelinda Gaviria gave direct evidence as to this. The applicant and the deceased had stayed at the Gaviria home one night in the winter of 1996. They slept together. The household were awakened by screams of the deceased. They entered the couple's bedroom and found the applicant with his hands around the throat of the deceased. Lina Morales managed to break his hold. After the event the applicant, who was crying and shaken, declared that he had been dreaming and that two dark figures had been trying to take him away.
* The incident with his father several weeks before the death of the deceased.
The relevant witnesses were the applicant's sister Frances and brother Albert and the father himself. The applicant's father was described as a very harsh, mean man who enjoyed terrorising the family. He repeatedly struck the children and, indeed, his wife causing black eyes. It was alleged he admired Hitler and taught Nazi practices. He was generally a tyrant. He and the applicant's mother separated in 1980. The applicant grew up very unhappy and fearful of his father and would ask, "Why couldn't he have a father?" The father, while admitting he was strict in bringing up the children, denied Nazi attitudes and threats to his family and alleged that he had been mistakenly arrested on an occasion in 1987 when he had been put into Mont Park Hospital for some two weeks. From the mid-1990s the applicant nevertheless tried to build up a relationship with his father and encouraged the joint purchase of an apartment. After trouble concerning the father and payments to the body corporate of the apartment building, the applicant complained that in the course of an argument his father had threatened him with a hammer (the applicant confirmed in his evidence-in-chief that this incident had occurred. The father also confirmed this but asserted he acted in self-defence.)
This evidence fell into two parts. The first, it was submitted, revealed that prior to the applicant entering the bedroom he shared with the deceased, "everything pointed to the resolution of past relationship difficulties and to a secure emotional and financial future for the applicant with the deceased." The second, it was submitted, revealed the applicant to have exhibited symptoms of disassociation after the stabbing leading to the reasonable inference that he was in such a state during it. The cause of the dissociation, it was contended, was a shocking revelation in the bedroom of the deceased's infidelity, associated with sexual taunts. The relevant witnesses as to the first part were Tsoronis, the applicant's sister Frances and brother Albert, his mother, Fernando Gonzales and Esneider, Angela and Hermelinda Gaviria. Their evidence disclosed that the family dinner on 5 May was a happy one; the applicant and the deceased were "hugging or cuddling" on the couch and they spoke of their move into the apartment. They behaved in a loving way and were falling asleep. "There was no hint of what was to come", said the brother. Gonzales gave evidence of a sexual relationship with the deceased in the weeks preceding her death. The other witnesses, who noted the relationship, saw nothing in it other than friendship.
The relevant witnesses as to the second part were the members of the applicant's family as above, various police and ambulance officers and Dr Nido. After the stabbing, the applicant was described as "totally unresponsive", lying flat on his back on the bed staring at the ceiling with eyes rolled back and flickering very, very rapidly. He seemed totally numb and gone but, at times, was gibbering. The deceased was heard to say repeatedly, "Why did I tell him, Grace?" The applicant was heard to say, "I want to die, I want to die." He was observed to have lacerations to his hands. A police officer noted that the applicant was "blinking his eyes...a slow motion...occasionally". An ambulance officer made a note "?? altered conscious state" with respect to the applicant. The applicant told the police officer he did not know how he got the cuts on his hands. The applicant was not uncooperative with the police but could not answer some questions. Upon being taken to St Vincent's Hospital, the applicant had dealings with a nurse, Ms Arnol.
She saw him in a cubicle not long after midnight. She noted lacerations to his right thumb and left arm. He said he could not feel his hands and feet very well and was confused as to the day and the date. Tested as to coma by application of the "Glasgow Coma Score", he scored 14 out of 15 which was satisfactory. I have already set out the remarks he made to this witness. He repeatedly enquired, with distress, as to the condition of the deceased and Ms Arnol gave evidence that a triage nurse had noted concerning him "? hands, ? fitting, ? eye movement". Asked by the nurse what had brought him to hospital, the applicant "wasn't able to tell me or he didn't tell me".
The applicant also had conversations with some police officers. The first was at about midnight with Constable Casey, and this has already been described. The second conversation was with Kennedy and occurred about 1.15 a.m. The detail of this has already been set out. At about the same time the applicant had conversation with Dr Nido, who asked him to tell her what had happened. I have already set out the conversation which followed upon this request.
Dr Nido also gave evidence that the applicant claimed that he thought he might have a psychiatric disorder and that he might have been born that way. He referred to his father and a psychiatric problem but said that he himself had never been in a psychiatric hospital and he denied any past history of hallucinations or delusions. He said he had not taken alcohol or drugs or medication that night. The doctor considered his form of thought was normal and that he was able to think appropriately in relation to questions. She saw no reason why he should not be interviewed by the police.
In June 1997 the witness Arellano spoke with the applicant. I have already set out their conversation.
The relevant witnesses were the applicant's mother, some police, including a crime scene examiner, interviewing police, Dr Dodd (the forensic pathologist) and some of the expert witnesses. When the applicant's mother took hold of the deceased upon entering the bedroom after the screaming was heard, she felt a knife. She subsequently placed this knife in a plastic bag containing rubbish that had been hanging on the refrigerator door. She showed it to a policeman. It was later examined by an officer of the forensic science centre. It was in a broken state. (Indeed, the learned Director showed, in the course of his submissions to this Court, that the blade could be effectively rotated some 360 degrees.) Stab type cuts were found in the deceased's clothing and the bed sheet. Dr Dodd, who found on post mortem the injuries already recounted on the deceased, gave his opinion that the knife, which became Exhibit "D" was very capable of producing her injuries. Questioned by the police, in a record-of-interview conducted on 6 May, the applicant said that he and the deceased had bought some knives at Lakes Entrance for the purpose of defending themselves. They had fold out blades. He said that the last time he had seen the deceased with her knife was possibly two weeks prior to her death when she had taken it out of her school bag. Told of his mother's discovery of the knife after the stabbing incident, he said he did not know how the knife came to be there. In his evidence-in-chief, the applicant confirmed his account of the purchase of the knives, dating the purchase in November of 1996. He said that the last time he had seen his knife was when it was on the filing cabinet in the bedroom a couple of weeks "before the tragic incident". He was not aware how it had got there. It was implicit in his account of critical events in the bedroom that he had no recollection of taking up the knife and using it to stab the deceased.
(It was submitted by counsel for the applicant that the injuries to his hands were "defensive type" and it was postulated that the deceased may have obtained the knife and been holding it, perhaps fearfully, at the time of her confession of infidelity. Counsel for the applicant at trial, who was obviously familiar with such injuries, elicited from Dr Dodd that the deceased had none. Photographs of the applicant's hand injuries were available but the matter of them being "defensive type" was never taken up with this witness. Professor Burrows also referred to this postulation, but, very properly did not venture an opinion on it. A homicide detective, Green, produced another knife, Exhibit "K" and this seems to have been treated at the trial as the knife of the deceased.)
"You are not obliged, ladies and gentlemen, to accept all that a witness has said, on the one hand, or to reject it all, on the other hand. You are perfectly entitled according to your own good judgment to accept some of what a witness has said and to reject another part of what that witness has said. You have also heard a substantial body of evidence of opinions from particularly the psychiatrists and the psychologist, and also the pathologist, Dr Dodd. Normally a witness is not entitled to express his or her opinion and is confined to describing what that witness saw or heard or did. But the law makes an exception about things beyond the knowledge of ordinary persons, such as yourself or myself; for example, in the area of psychiatry or of pathology. That is what the law calls specialist evidence. To give specialist evidence a person must first give qualifications and experience which is why you heard those specialist witnesses at the start of their evidence being asked their qualifications and their experience in their respective fields, pathology, psychology, psychiatry. A specialist witness, however, is not a judge of the facts of the case. Only you 12 good people are the judges of the facts of this case. In assessing the evidence of specialist witnesses you ask yourselves the same questions that you ask yourselves about ordinary witnesses: Is the witness truthful? Is the witness accurate and reliable? But with specialist witnesses you also ask yourselves further questions. You ask yourselves: How well qualified is the witness? How relevantly qualified is the witness? How experienced is the witness? How relevantly experienced is the witness? Upon what facts is the witness expressing the opinion? Because an opinion is only as good as the facts upon which it is based. And finally: Is the specialist fair and objective as you would expect a specialist to be or not fair and objective? Consider the opinions of the specialists fully and carefully, giving due weight to their expertise. But this is not a trial by psychiatrist. This is a trial by jury. You are the judges of this case and the sole judges of this case. In particular, you decide whether you accept the evidence of the accused, that he has a blank about what he did. That is for you to decide. No one else. You 12. Bearing in mind the onus of proof which I shall define for you in a moment."
"...He disassociated afterwards as shown by the information, but the question people always ask is why do you think that it occurred prior to that. It's because of his amnesia before the event and the total picture."
"Now he in fact doesn't remember the events beforehand and I believe that. It's not just, you know, my feeling. I believe that's what actually happens in disassociate states, that they can't remember the actual trauma or the details there and he never has and also he wasn't able to say where these cuts came from on my [sic] hands and what's actually occurred through that whole process so I put it into the total picture. I believe he disassociated before the event."
"There are a series of things that go along with disassociation, severe disassociation, and amnesia, spontaneous amnesia is one of them. If the events causing the person to disassociate are severe enough then it's very likely they'll develop either a complete or partial amnesia for those events."
Mr Stanley also listed the applicant's lack of memory "of the event" as one of the major stresses he appeared to exhibit according to both the witness's own assessment and testing. Later Mr Stanley said, "The major indication that it [disassociation] occurred before the act is the fact that there is no memory at all for the attack."
"You accept you stabbed Sandra to death, don't you?
"As it turned out, you stabbed her and she died?"
"Yes, I accept that." He added he had not the slightest recollection of the event.
In his instructions to the witness Mr Stanley, the applicant acknowledged that he believed he had killed the deceased and inflicted her fatal injuries. Later Mr Stanley was asked, "He picked up the knife because it was a knife, didn't he?" The witness answered, "Yes."
"Professor, in this case do you understand that the accused must have, if he didn't already have the knife, gone and got the knife before the stabbing occurred?"
"I don't understand that." and added, after a question from the judge, "I don't know where he got the knife from".
"Well, if he didn't have it in his hand he had to get it from somewhere in the room?"
"Yes, I mean, there was a knife there. That's a fact. The fact was he did stab her. We know that, that's a fact, but how he got the knife, whether she got it, whether he got it, where it came from, I don't know."
In his own evidence, the applicant acknowledged that the knife was normally kept closed. I would uphold the submission of the Director that it was not incumbent on the Crown to prove beyond reasonable doubt precisely how the applicant came into possession of the knife (Chamberlain v. R.(No. 2) [9] and R. v. Kotzmann[10]).
"The verdict was unsafe and unsatisfactory because there is a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled as to (a) the expert evidence concerning the applicant's defence of automatism; and/or (b) the relationship of that evidence to the requirement that the prosecution prove beyond reasonable doubt that the applicant killed the deceased by a conscious and voluntary act or acts."
"The learned trial judge's participation in the trial process by questioning of witnesses, particularly expert witnesses, together with comments by his Honour during the charge, was effected in such a manner and at such times so as to cause a miscarriage of justice."
"Professor, you said that in your professional opinion there was a high probability that the accused was not aware of what he was doing at the time he stabbed the deceased?"
"Why did he pick up the knife and not, for example a soft toy or one of the other things in the room which were harmless?"
"I would only speculate on that. I do not know and I don't think anyone knows."
"And the prosecution says those wounds tell you something about him. The prosecution says those wounds tell you that this stabbing was highly directional. Clustered in the middle of the back and the middle of the back of the head. Targeted to concentrated vital organs. And the wounds tell you something about her. There were no defence injuries. She was not even facing him. She was attacked from behind."
"And you told the police that?" A. "I don't - not that I can remember."
"Second, if I make any comment about the facts, and I do not propose to make any but if I did make a comment about the facts my comment does not bind you in any way. Treat any comment I make the same as counsel's submissions to you. If you agree with it, well and good, you may act on it. If you do not agree with it, put it completely aside." (1223)
2. the judge erred in finding that (i) the applicant had given false evidence as to the conversation in the bedroom with the deceased; and (ii) that the wounds were inflicted from behind; 3. the judge failed to give any or any sufficient weight to the circumstances surrounding the commission of the offence, including the applicant's dissociation and his consequent state of mind.
"Your evidence...was an attempt by you to avoid or reduce your legal liability for your actions: either as a foundation for unconscious and involuntary conduct by you (involving complete acquittal) or for provocation (involving reduction of murder to manslaughter). On the evidence the jury proved beyond reasonable doubt that your actions in fatally stabbing Ms Morales were voluntary and conscious. As a matter of law, for the legal reasons I stated in Ruling No. 4, provocation does not here arise. You are not to be punished for your untruthful evidence and you are not. The relevance of stating what I have stated is twofold: to remove the slur on Ms Morales that you have sought to perpetrate as her final words; and as a delimitation of the remorse you are said to feel for your victim."
had, to some extent, played "mind games" with him in the weeks leading up to her death. It cannot, I think be doubted that the applicant was in a highly-disturbed state at the time of his attack on the deceased. She had, on the evidence, had intercourse with a man other than the applicant shortly before her death, and had certainly disclosed to the applicant something of this relationship in the moments leading up to her death, notwithstanding their plans shortly to set up house together and begin a family.
applicant's case on automatism was a very difficult one. It was plainly open to the jury to convict the applicant of murder on the Crown case and I do not think it surprising that the jury were apparently left with no reasonable doubt as to his guilt.
"A 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 whilst deprived of self-control before he has had the opportunity to regain his composure. ... The test involving the hypothetical ordinary person is an objective test which lays down the minimum standard of self-control required by the law. Since it is an objective test, the characteristics of the ordinary person are merely those of a person with ordinary powers of self-control. They are not the characteristics of the accused, although when it is appropriate to do so because of the accused's immaturity, the ordinary person may be taken to be of the accused's age. However, the gravity of the conduct said to constitute the provocation must be assessed by reference to relevant characteristics of the accused. Conduct which might not be insulting or hurtful to one person might be extremely so to another because of that person's age, sex, race, ethnicity, physical features, personal attributes, personal relationships or past history. The provocation must be put into context and it is only by having regard to the attributes or characteristics of the accused that this can be done. But having assessed the gravity of the provocation in this way, it is then necessary to ask the question whether provocation of that degree of gravity could cause an ordinary person to lose self-control and act in a manner which would encompass the accused's actions. ... ... the question is whether the provocation, measured in gravity by reference to the personal situation of the accused, could have caused an ordinary person to form an intention to kill or do grievous bodily harm and to act upon that intention, as the accused did, so as to give effect to it."
"On the evidence of the accused, first, a confession of infidelity, second, a statement of future unfaithful conduct, and third, a taunt; but there was no more than that."
His Honour's conclusion was then expressed in the following terms -
"The law allows for human frailties; thus the law of provocation. But its central tenet is respect for and protection of human life. To allow provocation to be left with the jury in the critically limited circumstances of this case would be to significantly extend the law of provocation. There is no authority, principle or fact which would warrant such a course. Such a course would significantly alter the proper balance between human imperfection and the protection of human life."
"In my view, however, a sudden confession of adultery without more can never constitute provocation of a sort which might reduce murder to manslaughter ... It is enough to say that the duty of the judge at the trial, in relevant cases, is to tell the jury that a confession of adultery without more is never sufficient to reduce an offence which would otherwise be murder to manslaughter, and that in no case could words alone, save in circumstances of a most extreme and exceptional character, so reduce the crime."
"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."
"Having regard to the statements of principle, particularly in Stingel and Masciantonio, I am of the opinion that the issue of provocation should not have been left to the jury in this case. No reasonable jury, even taking the case at its highest in terms of the evidence that might be thought to be in support of the provocation, could have concluded that any incident of the behaviour by words or conduct of the deceased could have caused an ordinary person to form an intention to inflict serious bodily harm or death. Even assessing the so-called gravity of the conduct said to constitute the provocation by reference to the relevant characteristics of the accused and, even putting it in the context as to whether the provocation that degree of gravity could cause an ordinary person to lose self-control and act in that manner, it is impossible to my mind to reach a conclusion that the deceased's conduct could lead to the actions which here occurred."
"The general principles as to provocation having now been restated in Stingel and Masciantonio, the question may now be left to the jury as the constitutional tribunal of fact to decide what is the ordinary person's response to the use of allegedly provocative words, whatever be their form and context, but subject to the power of the trial judge to take away from the jury any claim of provocation which could in no circumstances properly lead to a verdict of manslaughter."
"I doubt very much whether the words - and smile and laugh - attributed by the applicant to the victim ... 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."
(a) troubled childhood and dysfunctional home life, including physical and mental abuse; (b) sensitivity to the issue of sexual morality and infidelity (particularly his father's attitude to this topic); (c) sleep disturbance, anxieties and childhood history of fitting; (d) obsessive work ethic and drive to achieve at a high educational level and ultimately to become a successful lawyer (which involved encouraging the deceased to perform in the same way); (e) fluctuating relationship with the deceased ultimately involving (as he believed) a firm and lasting commitment of love, marriage, family life and values. On the evening of the stabbing, everything pointed to the resolution of past relationship difficulties and a secure emotional and financial future for the applicant with the deceased; (f) acting in a dissociated state by grabbing the deceased around her throat while sleeping with her in mid-1996 and a significant breakdown of his relationship with his father two-and-a-half to three weeks before the death of the deceased; (g) exposure, in a sudden and highly-charged emotional situation, to the shocking revelation of the deceased's secret infidelity, associated with sexual taunts; and (h) mental and physical condition following the stabbing, including his confusion and amnesia for significant events.
(i) the importance of Chilean culture to the applicant;
(j) the importance of the family unit;
(k) corresponding with (b) above, the father's obsession with sexual morality and the need for fidelity within the family unit;
(l) superstitions of Chilean/South American culture concerning evil spirits, devils and night terrors;
(m) jealousy in the applicant's relationship with the deceased, evidencing the passion and intensity of the South American romantic culture.
"Do you remember anything after that?---I don't remember what happened after that until I found myself on the bed. I remember I felt a watery sensation all in my body and everything seemed dreamlike, the situation seemed unreal. I could hear voices. Everything was distorted, it didn't seem real."
During cross-examination, after saying the deceased had told him that she had been having an affair, the cross-examination took the following form -
"You didn't tell Mr Arellano the exact words that you say Sandra used, did you?---No, I didn't, no. Yet you'd remembered those words at the time you spoke to him?---That's correct, yes. Why didn't you tell him the words she used?---Because that was the crux of what I always considered important. Well, you always considered the words important, didn't you?---No, I didn't, no. It was the fact of disloyalty, the fact that she was having a sexual relationship with another man, that was the most important thing. You've previously said, haven't you, that you didn't know why - - -? ---That's correct, yes. - - - you hadn't told Mr Arellano all the detail?---That's correct, yes. Is that really still your state of mind, you don't know why you didn't tell it all to him?---I say with the benefit of hindsight, having had four months to think about why, it's the fact of disloyalty, that would have been the more important thing."
"could have led an ordinary person to have lost self-control to the extent that the applicant did, inasmuch as the alleged provocative act, `measured in gravity by reference to the personal situation of the accused', could not have caused `an ordinary person to form an intention to kill or do grievous bodily harm and to act upon that intention, as the accused did, so as to give effect to it': Masciantonio[37]."
"In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred."
The other members of the Court have found that the jury's advantage in seeing and hearing the evidence, especially the evidence relating to the applicant's amnesia, is capable of resolving any doubt that they might otherwise have experienced. I regret that I cannot travel with their Honours down that path, for this was ideally a jury question.[44] It is unfortunate, too, that the jury had to consider the issue solely in terms of non-insane automatism.
[9] [1984] HCA 7; (1984) 153 C.L.R. 521 at 536
[13] [1995] HCA 67; (1995) 183 C.L.R. 58 at 66-67.
[14] [1990] HCA 61; (1990) 171 C.L.R. 312 at 325-6, 329.
[15] [1999] VSCA 172; [1999] 2 V.R. 719 at 724-725.
[16] [2000] UKHL 49; [2001] 1 A.C. 146 at 166-169.
[18] Cf. R. v. Wilton (1981) 28 S.A.S.R. 362 per King, C.J. at 367-368.
[19] [1963] A.C. 220 at 230.
[21] [1946] A.C. 588 at 600.
[32] (1997) 191 C.L.R. 334 per Brennan, C.J. at 341, Gummow, J. at 385 and Kirby, J. at 408-409.
[35] Cf. R. v. Tuncay [1998] 2 V.R. at 20 per Ormiston, J.A.
[36] Tuncay, per Ormiston, J.A. at 20.
[38] [1982] HCA 55; (1982) 149 C.L.R. 305, at 324.
[40] R. v. Falconer [1990] HCA 49; (1990) 171 C.L.R. 30. See also R. v. Radford (1985) 42 S.A.S.R. 266, but note the reservation expressed by King, C.J. at 277.
[41] It is a doubt that was also experienced by one or more of the jurors at an earlier trial.
[42] I take these words from Mr Stanley's evidence at transcript 1106-1107.
[43] [1994] HCA 63; (1994) 181 C.L.R. 487 at 494.
[44] They were not assisted by the fact that the expert witnesses called for the Crown concentrated on voluntariness and the expert witnesses called for the defence concentrated on consciousness. Compare R. v. Radford at 275 and R. v. Falconer at 39-40, 72-73 and 83.
[45] The "authoritative guidance" referred to at 495 begins with the second sentence I have quoted, but the first is a corollary of the second and introduces it. It is no less authoritative.
R
Leonboyer [2001] VSCA 149