R v Margach [2007] VSCA 110

1. The learned trial judge erred in her directions (both oral and written) to the jury concerning the defence of provocation in directing the jury to the effect that:

(a) there is a requirement of "proportionality" between the provocative act(s) and the act(s) of the [appellant] which caused the death; and

(b) there is a requirement that the provocative act(s) be of such a kind that an ordinary person might react in [precisely] the same way as the [appellant] reacted -

and, as a consequence, there has been a substantial miscarriage of justice.

1. The learned trial judge erred in her directions to the jury concerning the defence of provocation in that:

(a) she placed an onus on the [appellant] to prove that he was provoked; and

(b) she directed the jury that, before the jury could consider the defence of provocation, the jury must first find that the [appellant] was provoked -

and, as a consequence, there has been a substantial miscarriage of justice.

1. The learned trial judge erred in her directions (both oral and written) to the jury concerning the defence of provocation in that she directed the jury that the jury was "entitled" to consider or look at the [appellant's] characteristics, etc. rather than directing the jury that the jury was "bound" or "required" to consider or look at these matters and, as a consequence, there has been a substantial miscarriage of justice.
2. The learned trial judge erred in answering the second question of the jury, namely, "What is really serious bodily injury?" ... by:

(i) she could not define the words for the jury; and

(ii) the words mean "what [the jury] ... think[s] they mean"; and

(iii) it was for the jury, "bring[ing] in community standards, ... [to] determine what really serious bodily injury is"; and

(b) failing to ensure that the jury did not consider murder as requiring proof only as to "serious injury", the nature or extent of harm required for the offence of "unlawful and dangerous act manslaughter" -

and, as a consequence, there has been a substantial miscarriage of justice.

1. There has been a substantial miscarriage of justice by reason of the combination or aggregation of the defects or errors in the trial of the [appellant] which have been identified in grounds 1-4 herein.

2 When the application came before this Court,[3] it became clear, for reasons outlined in our discussions with counsel for the parties at the time, that the trial judge had wrongly instructed the jury in two significant respects that could have led to a miscarriage of justice. Accordingly, the conviction and sentence imposed in the court below were set aside; and a re-trial was ordered, with the Court indicating that we would hand down a formal statement of those reasons at a later date.

**3 The matter arose against the following general background, concerning almost no aspect of which was there any controversy.

4 On the weekend prior to her death, the deceased went, with a number of female friends to Swan Hill; predominately, it appears, for the purpose of attending a race meeting that was held on the Saturday.

5 Whilst there, she met a man named Shane Breheny to whom she was instantly attracted. There was evidence that he had a similar reaction and, although initially deciding not to do so, upon her return they kept in contact by way of text messages and telephone calls. At one point, they discussed the possibility of leaving their respective partners and setting up house together.

6 The appellant became aware of these communications as, unknown to his wife, he had, at least five months earlier, installed a device that recorded conversations conducted on their home phone. Although there was no evidence that she had been unfaithful to him, it would seem to be beyond doubt that the appellant harboured deep suspicions concerning her conduct.

7 Not surprisingly, it appears from the evidence that the situation between the couple became increasingly tense, and, finally, according to the appellant, the deceased informed him that she had met a man on the weekend trip to whom she was attracted. However, she said, that person was not the cause of their marital disharmony which related to unresolved problems in their relationship.

8 As a result, on the Thursday evening prior to her death, the appellant left the matrimonial home and indicated that he planned to stay with his parents, declaring that their marriage was over. The victim and their two children joined him for dinner there, but an argument developed between them in the course of which the appellant took his wife's telephone and rang Mr Breheny in an endeavour to persuade him to talk to the children of the marriage that the appellant claimed he was destroying.

9 The appellant spoke to the deceased on the following day and they met with the intention of exploring the possibility of resolving their difficulties. They spent part of the day together, and later went to dinner with the children. Upon returning to the family home, the appellant engaged their older child (aged eight) in conversation, as he was putting her to bed, about whether her parents should stay together. The deceased took umbrage at this conversation and walked out of the bedroom. The appellant followed her and an argument took place during which she told him to leave the house. According to the appellant, she also stated, in that conversation, that she had been unfaithful to him and that the sex she had had was the best she had ever experienced. He said that she then took a steak knife from the kitchen bench and gestured at him to leave. As we understand the situation, he was able to disarm her quite easily. However he then engaged in a savage attack upon the deceased, using the knife,[4] that resulted in her death.**

10 We have not attempted in this very brief summary to do more than provide the barest outline of the circumstances in which the trial judge found it necessary to instruct the jury with respect to the issue of provocation and against which the grounds of the application fall to be considered.

11 In her charge, after emphasizing to the jury the obligation of the Crown to exclude beyond reasonable doubt the possibility that the appellant may have acted under provocation, the trial judge instructed them that:

"There are two elements in the concept of provocation. The first is that the acts or words of deceased, which are said to constitute provocation, caused the accused to lose his self-control and that the acts causing the killing were done during that period of loss of self-control. I will repeat that. The first is that the acts or words of deceased, which are said to constitute provocation, caused the accused to lose his self-control and that the acts causing the killing were done during that period of loss of self-control.

The second element is that the law will only concede the existence of provocation if there is some kind of proportion between the provocation and the murderous act. The provocation must be of a kind that might, in the same circumstances, cause an ordinary man to react in the same way as the accused man reacted.[5]

... [H]aving assessed the gravity of the provocation it is then necessary for you to determine whether provocation with that degree of gravity as you have found the accused felt, if you find indeed that he was provoked - as I said, that is entirely a matter for you, but with that degree of gravity as you found the accused felt, might cause an ordinary person to lose self control and act in the manner which the accused did.[6]

... [H]aving assessed the degree of gravity, you then apply the objective test of whether an ordinary person, which means just an ordinary member of our community - whether an ordinary person provoked the degree that you find the accused has been provoked might have lost self control and acted in a manner which would encompass the accused's actions."[7]

Later, during their retirement, the jury asked whether the concept of the ordinary person incorporated gender considerations. This was, of course, a reasonable enquiry in the context of a case that involved male and female interactions that might arguably have been viewed differently by male and female members. It did disclose however that they were unclear as to the attributes of the ordinary person for the purposes of the test that they had to apply. The prosecutor recognized that the judge had not adequately instructed the jury on this aspect and submitted that her Honour should spell out for the jury that:

"... by ordinary person the law mean[t] a person with ordinary powers of self-control."

Her Honour subsequently instructed the jury that the ordinary person could be male or female and that they were to ask themselves -

" ...'Well, what would an ordinary, normal, average member of our community do if provoked to that degree?'..."[8] (Our emphasis)

Appreciating that this last instruction may possibly have been perceived as casting an onus upon the appellant, the judge endeavoured to make it clear that the Crown was under the obligation of establishing that the killing was unprovoked, if the reduction of the crime of murder to one of manslaughter, by way of provocation, was to be excluded.

**12 The prosecutor was still concerned that the ordinary person test had not properly been defined and repeated his request that the term be defined in accordance with the authorities and that the jury be told that an ordinary person meant a person with ordinary powers of self-control. Her Honour said that this would all be included in the definition that she would hand to the jury on the following Monday. Subsequently, she did provide the jury with a written instruction but it was in similar terms to the initial oral instruction referred to above. In neither her oral nor her written instructions did her Honour explain to the jury what was meant by the ordinary person.

13 What the jury considered to be the attributes of "the ordinary, normal, average member of the community", or whether a distinction existed between the possible responses of a "reasonable" and an "ordinary" person, can only be the subjects of speculation. Counsel for the Crown in this Court argued that it could reasonably be inferred that they realized, however vaguely it was expressed, that an ordinary person would be expected to exercise ordinary or normal powers of self control. Although this suggestion possesses some superficial appeal, it simply does not provide an adequate answer. The jury were left completely at large with respect to the objective test, which is fundamental to the concept of provocation as the High Court made clear in Masciantonio v R [9]:**

"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.

It follows that the accused must form an intention to kill or to do grievous bodily harm (putting recklessness to one side) before any question of provocation arises. Provocation only operates to reduce what would otherwise be murder to manslaughter. Since the provocation must be such as could cause an ordinary person to lose self-control and act in a manner which would encompass the accused's actions, it must be such as could cause an ordinary person to form an intention to inflict grievous bodily harm or even death ... .

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. (Our emphasis)

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."

**14 There is a strong indication from the question concerning gender, that the jury were unsure what was meant by the term, ordinary person, and no assumption can be made that they ever identified the sole attribute of such a person with which the law is concerned; that is the possession of normal powers of self control, having regard to the age of the individual. It certainly could not be confidently stated that they made their assessment that the appellant's conduct fell outside the range of those in which an ordinary person might have engaged by reference to that attribute. As this was one of the paths that could have led to the appellant's conviction, the possibility of a miscarriage of justice could not be discounted.

15 The second significant respect in which the trial judge wrongly instructed the jury related to the introduction of the concept of proportionality of response when setting out the tests to be applied with respect to provocation.

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

"It has been said on a number of occasions that it is an element of provocation that the retaliation should be proportionate to the provocative incident. For example, in Mancini v Director of Public Prosecutions..., Viscount Simon LC said: 'In short, the mode of resentment must bear a reasonable relationship to the provocation if the offence is to be reduced to manslaughter.' However, it is now well established ... that the question of proportionality is absorbed in the application of the test of the effect of the provocation upon the ordinary person."[10]

**18 Subsequently, Callaway JA in R v McKeown,[11] made clear that it was not only unwise to refer to the concept of proportionality when introducing the ordinary person test, but likely to result in the misdirection of the jury, pointing to the risk that the jury might not regard references to proportionality as simply introductory but as constituting "an essential part of the objective element."[12]

19 Judgment in McKeown was, of course, delivered on 5 April 2006, some two months after the judge gave her charge in the present case. Her Honour's instructions on this aspect were almost identical to those held to be erroneous in that case. This is hardly surprising as the charge in McKeown and this case both followed the words employed in the model direction in the charge book which did not reflect what the High Court had stated on this aspect.

20 In the present case, it is to be observed that the risk to which Callaway JA referred in McKeown could be seen to have been increased by the fact that, at one stage in the charge, the judge dealt with what was clearly indicated to be the need for proportionality at a point separate from her instructions concerning the ordinary person test -**

"...It might help you, in terms of understanding this, if I explain to you that the law in respect of provocation was introduced many years ago, in order to give some flexibility to what was otherwise the very rigid law of murder.

The law took the view that if a person acts in the heat of passion or as a result of a sudden loss of control brought about by others, then the legal consequences attaching to murder should not follow in all their severity. But the law also took the view that there must be reasonable proportionality between the provocation that occurred and the resulting killing.

It is something that has been there for many years. You may well have read that we are about to have changes to our law in respect of this. That is something that is in the future. You are to deal with provocation as it exists at this time. All right? Whatever you may have read about it, ignore it, because this is the law as it currently is."[13]

The judge then went on to define provocation generally, before directing attention to the objective test. In consequence of this separation of treatment, the jury may well have formed the view that there was an overarching test of proportionality to be assessed on the basis of their view of the possible reactions of the "average", "normal", "ordinary" or "reasonable" member of the community (the various terms employed by her Honour). The written instructions that she provided to the jury are ambiguous on this respect and would not have dispelled any misconceptions that they may have had concerning either the ordinary person test or the notion of proportionality.

**21 The Court considered that this misdirection also may have resulted in a miscarriage of justice.

22 The application of the proviso in s568(4) of the Crimes Act 1958 was regarded as inappropriate in the circumstances, particularly bearing in mind that the range of behaviours in which an ordinary person might engage in response to what was accepted as provocative behaviour could be reasonably regarded as a jury question par excellence.

23 For completeness we would add that, although the judge's instructions providing the bases of grounds 2, 3 and 4 were not always felicitously expressed, none of the matters raised in these grounds would have required that the verdict be set aside or would be likely to arise in a re-trial. Accordingly they need not be addressed. Nor, in the circumstances, is consideration of the combination of errors contention in ground 5 required.**

[1] Date of jury verdict 15 February 2006.

[2] After hearing a plea in mitigation of penalty, he was sentenced, on 8 March 2006, to 17 years' imprisonment in respect of which a non-parole period of 13 years and six months was fixed.

[4] He inflicted a number of wounds. There was at least one on the chin, one on the neck, seven on her right upper limb, nine on the left upper limb, and two on her chest. They were described by the pathologist who conducted the autopsy on her body as incised or sharp force injuries with the most significant being to her chest, one of which penetrated her heart and lung and the other, her lung.

[9] Masciantonio v R [1995] HCA 67; (1995) 183 CLR 58 at 66 to 67.

[10] Masciantonio v R [1995] HCA 67; (1995) 183 CLR 58 at 67.

[11] [2006] VSCA 74.

[12] [2006] VSCA 74 at [4].