[2015] HCA 16
Masciantonio v The Queen (1995) 183 CLR 58
Source
Original judgment source is linked above.
Catchwords
[2015] HCA 16
Masciantonio v The Queen (1995) 183 CLR 58
Judgment (10 paragraphs)
[1]
Judgment
HIS HONOUR: Andrew McDonald is currently on trial before me sitting in Port Macquarie with a jury of twelve, charged with having murdered his brother at Taree on 21 January 2017. Mr McDonald pleaded guilty to manslaughter when arraigned before the jury. The Crown refused to accept that plea in full discharge of the single count on the indictment. The Crown case closed just before lunch on the third day of the trial.
Mr McDonald has now made an application that the partial defence of extreme provocation should be left to the jury. That application is opposed by the Crown. The circumstances in which the issue arises can only be understood in the light of the events that give rise to the charge.
[2]
Background
Mr McDonald is an almost 59 year old man of Aboriginal descent. He is charged with having murdered his younger brother Edward McDonald by stabbing him once in the left side of his chest with a bone handled carving knife. The deceased died almost immediately following the stabbing from blood loss caused by damage to his significant venous and arterial vessels.
At the time of the incident causing death, Mr McDonald and the deceased had been living in adjoining apartments in Hooke Street, Taree. Although the evidence was not all one way, it is sufficient for present purposes to accept that the deceased lived in one of the apartments with his then partner Ruth Knight. Mr McDonald lived alone next door.
For reasons that are as yet only obliquely revealed in the evidence, Mr McDonald and his brother would appear to have had some kind of falling out that germinated at a birthday party of another man some year or so before. This animosity had not subsided by the time Mr McDonald came to live in Hooke Street. It intensified in the following circumstances.
Mr McDonald told police when interviewed the day following the death of the deceased that his brother and Ms Knight were constantly and persistently very noisy. They regularly abused him and treated him in a disrespectful manner. The precise evidence that is said to fit these descriptions is at the heart of the Crown's opposition to the present application and is referred to later in these reasons. It would seem that at about 9.30 pm on the evening in question, Mr McDonald became so annoyed or distressed at the commotion coming from his brother's apartment, including the sliding door of the bathroom having been slammed, that he took the knife from his kitchen and went next door. He entered the front room, where the deceased was seated on a lounge with at least one other man. Mr McDonald walked up to his brother, and while he was still seated, swung the knife in his right hand into the left side of his brother's chest. Mr McDonald then left the premises, crossed the street to where his neighbour Peter Burke resided, and asked him to call the police.
Mr McDonald contends that the behaviour of his brother amounted to provocation for the purposes of s 23 of the Crimes Act 1900. He says that he lost his self-control by reason of the things that were done and said by his brother on the night in question, and in the weeks leading up to the offence, and that his brother's actions constituted a serious indictable offence contrary to s 13(1) of the Crimes (Domestic and Personal) Violence Act 2007.
[3]
Relevant statutory provisions
Section 23 of the Crimes Act provides as follows:
"23 Trial for murder--partial defence of extreme provocation
(1) If, on the trial of a person for murder, it appears that the act causing death was in response to extreme provocation and, but for this section and the provocation, the jury would have found the accused guilty of murder, the jury is to acquit the accused of murder and find the accused guilty of manslaughter.
(2) An act is done in response to extreme provocation if and only if:
(a) the act of the accused that causes death was in response to conduct of the deceased towards or affecting the accused, and
(b) the conduct of the deceased was a serious indictable offence, and
(c) the conduct of the deceased caused the accused to lose self-control, and
(d) the conduct of the deceased could have caused an ordinary person to lose self-control to the extent of intending to kill or inflict grievous bodily harm on the deceased.
(3) Conduct of the deceased does not constitute extreme provocation if:
(a) the conduct was only a non-violent sexual advance to the accused, or
(b) the accused incited the conduct in order to provide an excuse to use violence against the deceased.
(4) Conduct of the deceased may constitute extreme provocation even if the conduct did not occur immediately before the act causing death.
(5) For the purpose of determining whether an act causing death was in response to extreme provocation, evidence of self-induced intoxication of the accused (within the meaning of Part 11A) cannot be taken into account.
(6) For the purpose of determining whether an act causing death was in response to extreme provocation, provocation is not negatived merely because the act causing death was done with intent to kill or inflict grievous bodily harm.
(7) If, on the trial of a person for murder, there is any evidence that the act causing death was in response to extreme provocation, the onus is on the prosecution to prove beyond reasonable doubt that the act causing death was not in response to extreme provocation.
(8) This section does not exclude or limit any defence to a charge of murder.
(9) The substitution of this section by the Crimes Amendment (Provocation) Act 2014 does not apply to the trial of a person for murder that was allegedly committed before the commencement of that Act.
(10) In this section:
'act' includes an omission to act."
Section 13 of the Crimes (Domestic and Personal Violence) Act is in these terms:
"13 Stalking or intimidation with intent to cause fear of physical or mental harm
(1) A person who stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm is guilty of an offence.
Maximum penalty: Imprisonment for 5 years or 50 penalty units, or both.
(2) For the purposes of this section, causing a person to fear physical or mental harm includes causing the person to fear physical or mental harm to another person with whom he or she has a domestic relationship.
(3) For the purposes of this section, a person intends to cause fear of physical or mental harm if he or she knows that the conduct is likely to cause fear in the other person.
(4) For the purposes of this section, the prosecution is not required to prove that the person alleged to have been stalked or intimidated actually feared physical or mental harm.
(5) A person who attempts to commit an offence against subsection (1) is guilty of an offence against that subsection and is punishable as if the offence attempted had been committed."
Section 7 of the same Act should be noted:
"7 Meaning of 'intimidation'
(1) For the purposes of this Act, 'intimidation' of a person means:
(a) conduct (including cyberbullying) amounting to harassment or molestation of the person, or
Note: An example of cyberbullying may be the bullying of a person by publication or transmission of offensive material over social media or via email.
(b) an approach made to the person by any means (including by telephone, telephone text messaging, e-mailing and other technologically assisted means) that causes the person to fear for his or her safety, or
(c) any conduct that causes a reasonable apprehension of injury to a person or to a person with whom he or she has a domestic relationship, or of violence or damage to any person or property.
(2) For the purpose of determining whether a person's conduct amounts to intimidation, a court may have regard to any pattern of violence (especially violence constituting a domestic violence offence) in the person's behaviour."
For present purposes, the issues that arise for consideration on this application, having regard to these provisions, are as follows:
1. Did Mr McDonald stab his brother in response to his brother's conduct towards or affecting him?
2. Was the conduct of Mr McDonald's brother a serious indictable offence?
3. Did the conduct of Mr McDonald's brother cause him to lose self-control?
4. Could the conduct of Mr McDonald's brother have caused an ordinary person to lose self-control to the extent of intending to kill or inflict grievous bodily harm on him?
My consideration of these questions is of course merely preliminary, in the sense that I must consider only whether there is at least some evidence that is capable of providing an affirmative answer to each question in the context of this application. My conclusions are not to be taken as determinative of what may in due course become questions for the jury to decide. These questions are considered later in these reasons.
[4]
The evidence
The evidence that is relevant to the present application is to be found in two principal locations. The first is the transcript of evidence given by Ruth Knight and Edward Wilkinson. The following extracts from their cross-examination should be noted.
Ms Knight's evidence was as follows:
"Q. After they separated and Andrew moved in next door did you become aware that he was taking medication?
A. Yes.
Q. Was he taking medication for depression and for seizures?
A. Yeah.
Q. Was he struggling with alcohol and drinking too much?
A. Yeah.
Q. But were there times when he was not drinking, when he was trying to stop drinking?
A. Yes.
Q. And were you aware that this was a real struggle for him being without Debbie after all these years?
A. Yes.
Q. When you moved into the unit that you occupied at unit 4 was it the case that you were on the lease, it's your unit?
A. Yes.
Q. And would Edward come to stay with you at times?
A. Yeah.
Q. And--
A. No, sorry, he lived with me.
Q. Okay, well was he there full-time with you?
A. Yeah.
Q. Was there an arrangement initially that he was to spend three nights a week there?
A. Arrangement, yeah.
Q. So was that a formal arrangement?
A. Yeah that was for the Department of Housing.
Q. But it had come about over time that he ended up spending more time there?
A. No, when I first moved in he lived with me. We always lived together. He didn't live anywhere else and then come and stay three nights or two nights. He lived with me.
Q. When did it become--
A. It's always been like that.
….
Q. Okay. When you were residing at unit 5 when Andrew was residing at unit 5 both you and Edward were using crystal methamphetamine, weren't you?
A. I was, yeah.
Q. Well Edward was too, wasn't he?
A. Sometimes.
Q. And crystal methamphetamine is an illicit drug which is called 'ice'?
A. Yep.
Q. So how would you use ice, did you smoke it or inject it?
A. Inject it.
Q. Did you have syringes at the house that you used to inject it?
A. Yeah.
Q. And does the ice come as a crystalline substance and you dissolve it to inject it into your body, is that the case?
A. Yeah.
Q. How would Edward use the ice?
A. The same way.
Q. Now, is it the effect of ice to be a stimulant which makes you not tired and not hungry, essentially?
A. Yeah.
Q. So you typically after you've had some ice stay up?
A. Yeah.
….
Q. Is it correct to say that you and Edward would often argue and yell at each other?
A. That's me more yelling. I mean we - he'll listen, he would just go in the room and just block me out, I'm the one that's doing all the screaming and whatnot.
Q. Again correct me if this is not right, but as a generalisation are you someone who gets very loud when you get upset or you're arguing?
A. Yeah.
Q. And you're known for being someone who screams and yells when you get upset or have an argument, is that correct?
A. Yeah.
Q. What I'm putting to you is that in the time period when you were at Unit 4 and the accused Andrew was at Unit 5 it was very common and very regular for you and Edward to argue with each other that involved yelling and screaming by you and him?
A. More me screaming.
Q. But you'd agree that it was a very regular occurrence?
A. No, no, it wasn't regular, like every day thing.
Q. No, I'm not suggesting every day but I'm suggesting that it would be every week or every fortnight, is that correct?
A. Say fortnight.
….
Q. I'm putting to you just this morning you were asked about the 12 months prior to this and whether Andrew complained about the noise?
A. Sometimes.
….
Q. And when he said that would you say 'get fucked you old cunt' or words to that effect?
A. 'Fuck you'.
Q. Yes, you would say 'Fuck you, you stupid old cunt'?
A. No, not your words.
Q. I suggest to you, you often called him an 'old cunt'?
A. Yeah I did.
Q. Okay?
A. It was just that 'old cunt'.
Q. I suggest then that Edward would say to him 'you're a senile old cunt' or words to that effect; correct?
A. No, don't remember him saying that. Can't remember that words.
Q. Well that was one of the phrases that you both used against him wasn't it, to call him 'a senile old cunt'?
A. I said - yes. I never called him 'a senile old cunt' I said - used to say 'fuck you' simple and I left it at that.
Q. I suggest to you that you and Edward would yell out to him and call him 'an old drunken bastard' or words to that effect; correct?
A. No I didn't. I used to just swear back at Andrew like I said.
Q. This was very different to the way you'd had a respectful relationship with hi prior to this wasn't it?
A. It (not transcribable) didn't happen.
Q. Yes, what I'm getting at was you knew that it upset Andrew greatly to call him 'an old cunt' or 'an old bastard' didn't you?
A. No I didn't know.
Q. Didn't you actually say it to him as a way of saying in effect 'up yours, up yours Andrew, we'll do whatever we want'?
A. No.
….
Q. Now is it your evidence that he yelled out words to the effect of 'Can you fuckin' shut up' or 'stop slamming the fuckin' door' or something like that?
A. No, he didn't say that. What, that night?
Q. Yes, after you had slammed the door the first time?
A. He yelled out something though, I don't know, he said something about a life, I screamed back 'Fuck you, you drunken old cunt'.
Q. Yes, that's what you yelled back at him?
A. That night, yeah.
Q. And then you told us that you grabbed the sliding door and deliberately--
A. I walked out, I didn't stand there and done it then, I walked out and that's when Ed's said 'Bub don't worry about him'. Just 'fuck him' and then - he just pissed me off so turned around and went--
Q. And again because we've got a transcript?
A. I slammed the door again, yeah that's right, yeah.
Q. Yes, so you've indicated you used your arm to slam the sliding door shut, is that correct?
A. Yeah.
Q. Now you did that to deliberately antagonise and harass--
A. Second time.
Q. --him didn't you?
A. Yes.
….
Q. At that point in the evening did Edward yell out to Andrew in the next flat words to the effect of 'Shut the fuck up'?
A. No, I said I was yelling out then.
Q. Did Edward yell out to Andrew words to the effect of 'We can argue if we want to' or 'We can do what we want to'?
A. Not that I can remember.
Q. Was it the case that sometimes when Andrew would yell at Edward, Edward would yell back at him words to the effect of 'Debbie did the right thing kicking you out', or words to that effect?
A. No, it wasn't like that.
Q. Didn't he say that to--
A. He never said that back in Andrew's face like that, how you're saying it.
Q. Well I suggest to you he did, Ms Knight, I suggest to you that he would say to him words to the effect of 'You deserve everything you get. You're a silly old cunt'?
A. I don't remember.
Q. I suggest to you he said words to that effect on this night?
A. What words?
Q. That Edward yelled out to Andrew words to that effect, that 'Debbie did the right thing kicking you out'?
A. I don't remember him saying that."
Mr Wilkinson's evidence was in the following relevant terms:
"Q. Did you hear Ruth yelling?
A. No, not at that time.
Q. Could you hear Ruth yelling at all before Edward got stabbed?
A. Yes she was yelling, having a go at Andrew.
Q. What did you hear Ruth yelling?
A. I can't recall what she was saying, she was just yelling.
Q. If I suggest to you she was yelling words along the lines of "fuck you, you old drunken bastard" did you hear her yell that?
A. I can't recall, I cannot recall what she was saying.
Q. Did you say to Edward when you got inside the unit 'what's all that about?'?
A. Yes I did.
Q. And did he say to you in effect 'we're just arguing with my brother'?
A. Yes, he's just turned around and said 'it's just my brother, we're having a family argument'.
Q. Did you hear Edward yell out to Andrew words to the effect of 'shut the fuck up you silly old drunk' or words to that effect?
A. No not at all, the only thing Edward yelled out was, 'just stop it I've got friends over her, I don't want to do this right now', is all that was said.
Q. He yelled that out?
A. Yeah Edward did, yeah."
The second source of relevant material is to be found in exhibit F, which is Mr McDonald's electronically recorded interview with the police. This interview took place in the early hours of the morning following the death of the deceased. It included the following questions and answers:
"Q59. Um, what can you tell me about that incident?
A. Oh I got home … him and his partner talkin' about me which set me off. Um, I think it just escalated from there I suppose.
Q60. When you say they escalated what do you mean?
A. Oh well as soon as I heard my name mentioned and bad words behind it. I just went next door with a knife, I took my knife with me and just confronted him first off. Yeah. Just happened so quickly.
Q61. What happened so quickly?
A. Well, I asked them not to talk about me anymore and they, they told me to, you know, 'F' off and everything.
Q62. Uh-huh.
A. And um, that just made matters worse … just took the situation in my own hands I suppose.
Q63. When you say you took the situation in your own hands what did you do?
A. I was carrying a knife so, yeah … I thought I stabbed him in the shoulder but it wasn't the shoulder.
Q64. And what, what happened after you stabbed, after you stabbed him?
A. Oh, oh well, it was, there was a few people in the house, they fled out the back door and I went out the front door. I went across to, across the road to my neighbours place and asked him to ring the police.
….
Q81. Do you remember what time you got home?
A. Would've been, oh, would've been about 6.00-ish, 6 o'clock or may be earlier - - -
Q82. Mmm.
A. - - - or may be later.
Q83. Yeah. And what were you they saying about you?
A. Oh, the usual, called me an old cunt and everything.
Q84. Yeah. And when you heard them saying that how did it make you feel?
A. Yeah, how does it make you feel, angry doesn't it?
….
Q93. Yeah. Ok. Um, when you, when you picked up the knife what were you thinking, what were your intentions?
A. My intentions were just to take it next door and frighten him.
Q94. Uh-huh.
A. And yeah, I just, I just lost it. I just lost it for a split minute or two and, yeah, and the next minute, I, I remember pulling out, pulling it out what I thought was his shoulder.
….
Q111. Yeah. Does um, does drinking alcohol make you angry?
A. No.
Q112. No. Ok.
A. What did make me angry … coming home … environment day after day after day after day.
Q113. Uh-huh.
A. And it just finally got to me.
Q114. Uh-huh. What environment do you mean?
A. Well, for a start my brother shouldn't have been there in the first place, he, he's not there listed on, on the housing department list.
Q115. Uh-huh.
A. Only Ruth is. And … and they knew I was on medication and everything - -
Q116. Uh-huh.
A. - - - and they continuously came home at night, late at night bangin' cupboard doors around, slammin' drawers shut, something had to give sooner or later didn't it?
Q117. Uh-huh. Have you got anything you want to ask, Sarge?
A. I walk around on egg shells next door tryin' not to make a noise to disturb them but they're doin' it, they're doin' it back to me all the time, so something had to give sooner or later.
….
Q123. And you said you, correct me if I'm wrong but you said that you heard, ah, him which is, is that Edward you're talking about - - -
A. Both of them.
Q124. - - - and his partner - - -
A. Both of them, yes.
Q125. Yeah, so is that Ruth?
A. They're always running, always running me down mate.
Q126. And …
A. …
Q127. And they were talking about you?
A. Yes.
Q128. OK. Where did, where did you hear then, where did you hear that conversation?
A. I ….
Q129. Were you in your unit?
A. When I got home to my unit, yes.
Q130. And you could hear them talking about you in their unit?
A. Well, they're right next door to me, mate, yes, and the walls are that paper thin.
Q131. And how long did you listen to that?
A. And I put up with this day after day after day after, night after night after, morning, morning, morning, it's never ending.
Q132. And how long did you listen to it before you went in there?
A. Would've been about 10, 15 minutes before I clicked.
Q133. So when you say peaked what does that mean?
A. What was that?
Q134. What, what do you mean when you say peaked?
A. Pissed off.
….
Q139. And when you confronted him in the flat, where was, where was Edward then?
A. He was sittin' down in front of me on the couch.
Q140. OK. And can you tell me what happened then?
A. Oh well, I asked him to please not talk about me anymore and he told me to piss off out the door and everything, so I walked over and just let him have it. Oh, I just snapped for some reason. There was nothing intentional or nothing like that, wasn't you know, wasn't planned or anything for me to go and do that it just happened, just a moment of madness I could actually put it down to.
….
Q144. And where were you standing when he was on the lounge and you've got the knife in which hand?
A. I had the knife in my right hand and I was at the front door, the screen door and, ah, I knocked before … said, Oh, get out of here, you're not supposed to be in here or whatever. So I um, I just, um, I just thought to myself enough's enough so I'm going to put a stop to this right her [sic, here] right now.
Q145. So you walked into the unit?
A. Yes.
Q146. And did Edward do anything after - - -
A. It wasn't premeditated or anything like that, it was, it just happened out of the blue. Edward, Edward never got up off the couch, yeah, he was still sittin' down .
Q147. Yeah.
A. And the … and everything um, yeah.
Q148. And you've got the knife in your right hand?
A. Yeah.
Q149. And what did you do?
A. I just stabbed him in the shoulder which I thought was the shoulder but it wasn't, it was the chest.
Q150. Uh-huh. How many times did you stab him?
A. Just the once."
Evidence was also given by Peter Burke, a neighbour who lived in a house opposite in Hooke Street, Taree. He gave evidence of a history of hearing what appeared to be domestic disputes emanating from the apartment occupied by Ms Knight and the deceased. Without referring to that evidence in detail, it seems to me to be of such a general character that it does not assist Mr McDonald in the present application.
[5]
The first question
Mr McDonald submitted that the evidence supported his contention that he stabbed his brother in response to his brother's conduct towards or affecting him. The Crown's response was that the evidence in this trial does not yet go that far, and that the only conduct to which Mr McDonald's actions were possibly a response was conduct of Ms Knight.
It has to be accepted that the evidence of conduct by the deceased, as opposed to the conduct of Ms Knight, is not overwhelming. There clearly remains scope for the giving of evidence that would more strongly support the nature and extent of the involvement of the deceased in committing or performing conduct towards Mr McDonald that is said to be intimidating. It is unnecessary to comment upon the obvious forensic equation that is concerned with resolution of that issue.
However, it is a mistake to conflate the strength of evidence with the existence of evidence. What a jury will or might make of the conduct of the deceased in this context remains to be seen. The question for me to determine is merely whether the conduct concerned was the conduct of the deceased. In my opinion the evidence supports a conclusion that some at least of the conduct was the conduct of the deceased. It is not for me to comment upon what the jury will or might make of that evidence in the event that they are required to consider the partial defence of provocation.
[6]
The second question
By definition, intimidation means conduct amounting to harassment or molestation of the person. The two essential elements of the offence would appear to be whether the conduct in question satisfies one or more of the sub-paragraphs of the definition of "intimidation" and whether it was done with the requisite intent. I was referred to the following cases concerning these questions.
In Viavattene v R [2018] NSWCCA 197, the applicant sought to be released from custody pursuant to s 49 of the Bail Act 2013 pending the hearing of his appeal to the District Court against convictions entered in the Local Court. Those convictions included offences of stalking or intimidation with intent to cause fear of physical or mental harm contrary to s 13(1) of the Crimes (Domestic and Personal) Violence Act. By reason of the nature of the proceedings in the Court of Criminal Appeal, it was not necessary for that Court to make a final or binding determination of whether or not the applicant's appeal would succeed, or more particularly, whether his conduct satisfied the definition of intimidation in s 7 of the Act. As the Court said at [4]:
"As one aspect of the release application is that Mr Viavattene's appeal has reasonable prospects of success, it is necessary to outline the prosecution case and the Presiding Magistrate's findings (see Bail Act s 18(1)(j)). To the extent that the following addresses the merits or otherwise of the applicant's appeal it must be emphasised that that is ultimately a matter for the District Court to determine and that Court should not feel inhibited in determining the appeal by this Court's observations."
However, the Court set out in some detail a summary of the prosecution case. It is instructive to note the following paragraphs of the reasons for judgment in that Court:
"[9] On this application the Court was provided with the transcript of the hearing in the Local Court as well as a useful summary of the prosecution and defence cases. Overall the prosecution case in respect of the intimidation offences was that the applicant had placed on "YouTube" certain videos, a link to which was emailed to the Commissioner of Police and forwarded down the chain of command. In the videos, scurrilous allegations were made against various police officers in the part of the North Coast where the applicant resided, as well as his former neighbours, a teacher and principal of the school previously attended by the applicant's daughter and a solicitor who acted for an opposing party in civil litigation against the applicant and his wife.
[10] The existence and contents of the videos were brought to the attention of each of the relevant victims. At some point the videos were taken down from 'YouTube' however a large number of screen shots were taken and tendered in the Local Court proceedings. Part of the prosecution case was that, upon the applicant being arrested in June 2017, he made admissions to having posted the videos on YouTube.
[11] The evidence of one of the police officers who saw the videos was that they were footage of himself and other officers attending the applicant's house for a bail check and the footage included a conversation between the officer and the applicant which contained a reference to the officer's wife. The video included captions labelling the officer a 'paedophile cop' and other police officers as 'crooked'.
[12] The applicant's former neighbours gave evidence in the Local Court that in the month prior to June 2017 human faeces were thrown onto their roof from the direction of the applicant's premises. They also saw the videos on YouTube which depicted them. The video included written material that made scurrilous allegations including that one of the neighbours was a 'rock spider', a 'peeping tom' and was 'peeping' on the applicant's daughter. One of these neighbours recognised the applicant's voice in the video. During these events a provisional AVO was in force against the applicant nominating the male neighbour as the protected person and which operated to prohibit, inter alia, his 'harassment' by the applicant.
[13] The teacher and school principal both gave evidence that the YouTube videos that were posted accused them of being involved in molesting the applicant's daughter. The solicitor who previously acted for an opposite party to the applicant in civil litigation gave evidence that he had previously been threatened by the applicant who had attended his office. He said that when he viewed a screenshot of the 'YouTube' material concerning himself he became concerned that he might be confronted by the applicant or 'knocked off my bike'.
[14] One particular aspect of the evidence adduced by the prosecution should be noted. The office manager at the local school gave evidence that while she was at work on 29 May 2017 she received a call from an unknown male asking to speak to the school principal. She told the caller that the school principal was unavailable. She recalled that the caller then said to her to advise the school principal that 'I know where he lives and I'm going to bring the boys around and tear him limb from limb'. The office manager said she received another telephone call on 19 June 2017 from the male who again asked her about the school principal. The office manager said the caller told her that he was 'going to kill [the principal] for what he did to' and then referred to a person with the same first name as the applicant's daughter. The caller then stated 'I'm going to put an axe in his head and blood and guts is going to come out and then I'm going to fucking kill him, excuse me for swearing, and that he's dead'.
[15] Although the office manager stated she did not recognise the voice of the person on the end of the phone, there was evidence pointing to the applicant as the person who made the call. Telephone records were tendered in the Local Court which identified a call as having been made from the applicant's number to the school on 19 June 2017. Further, the school principal was the subject of one of the YouTube videos and, as noted, other evidence pointed to the applicant as the person who posted the videos.
[16] The applicant did not give evidence in the Local Court. However, it appears that the substance of his defence to the charges was that the evidence of the YouTube videos was fabricated, that all of the witnesses were liars, that there was no connection between the applicant and the YouTube videos and that otherwise, as the videos were only posted and their attention brought to the Commissioner of Police, there was no 'intimidation' of any of the victims. As noted by Wilson J, in the absence of any evidence from the applicant, there was no evidence to support his allegations that the evidence was fabricated, although of course the burden of proof remained on the prosecution throughout."
It is perhaps reasonably uncontroversial to observe that the conduct of the applicant in that case was arguably within the definition of intimidation on the one hand and at least inferentially, if not in fact quite obviously, intended to cause a fear of physical or mental harm on the other hand.
In Veness v Hodge [2015] NSWCA 20, the Court of Appeal considered an application for judicial review under s 69 of the Supreme Court Act 1970 of orders made in the District Court on appeal by Ms Veness to that court from orders made by the Local Court under the Crimes (Domestic and Personal) Violence Act. On 6 December 2013 McCosker LCM sitting in Port Macquarie made an apprehended personal violence order under that Act against Ms Veness. The conduct that founded that order arose out of a long-running dispute between Ms Veness and a woman known as Ms Hodge. The factual background was described in some detail as follows:
"[15] … Since 2003, Ms Veness's husband, Mr John Fowler, had managed a water transport business known as 'Port Macquarie Cruise Adventures'. Ms Veness assisted him by managing his floating ticket office and his main office. From 25 July 2012, Ms Hodge carried on a seaplane business from a pontoon adjacent to one of the berths from which Mr Fowler carried on his cruise business. Both businesses were situated on the Port Macquarie Town Wharf.
[16] McCosker LCM observed that a possible explanation for the dispute lay in an alleged affiliation between Mr Fowler and an aircraft operator from Gladstone in Queensland who it seemed to his Honour had likely tendered for the site occupied by Ms Hodge. His Honour said that it was postulated that the business of Mr Fowler and Ms Veness may have achieved some financial remuneration through ticketing and other agent fees. His Honour did not consider that the evidence on that issue was persuasive enough to prove the point conclusively. However, his Honour was of the view that it could not be discounted as a realistic possibility.
[17] While Ms Hodge was not permitted to operate her business before 25 July 2012, she operated her aircraft prior to that day as a non-profit activity until she obtained the necessary approvals. However, by the time she commenced operating the seaplane business on 25 July 2012, Ms Hodge had the necessary approvals and endorsements and insurance to operate her business from the waterfront.
[18] Ms Hodge claimed that, on and from the date of the commencement of her business, she had had difficulties with either Ms Veness or Mr Fowler. Those difficulties resulted in her ceasing her operations on and from 25 March 2013. Additionally, her approval to operate the business was withdrawn until the present proceedings had concluded. She asserted that that course had been taken because of the possibility of sabotage of her aircraft, although there was no official confirmation of that assertion.
[19] Ms Hodge applied to the Local Court for an APVO on the basis that Ms Veness, or other persons acting on her behalf, had unnecessarily interfered with her by photographing her while she was working at her seaplane business. Ms Hodge also relied on comments made by Ms Veness that were contrary to Ms Hodge's ongoing business interests, being comments asserting that her business was operating illegally. Ms Hodge also made allegations of other forms of interference by Ms Veness and those associated with her, such as preventing her from accessing the waterfront facilities provided for use by all businesses on the Port Macquarie Town Wharf.
[20] McCosker LCM found that the issues between the parties were not of recent origin. His Honour also referred to other incidents outside the grounds of the application involving additional parties, which, his Honour said, left an impression that the difficulties at the Port Macquarie waterfront were 'both complex and deeply enshrined', such that they had resulted in 'a very toxic environment', where all participants purported to take the high moral ground and claimed to be the victims of the inappropriate or criminal behaviour of others. His Honour said that the substantive issues to be resolved could be reduced to whether there had been disparaging comments made about the legality of the business operations of Ms Hodge and whether there had been a level of disturbance of those business operations by the behaviour of either Ms Veness herself or others acting at her behest.
[21] McCosker LCM said that Ms Hodge asserted that she had been stalked by Ms Veness, 'as a result of the constant photographing of her and her aeroplane', by Ms Veness and by persons 'in the form of Mr Mansfield and Ms Lowe', whom Ms Hodge believed were acting at the request of Ms Veness. Ms Hodge asserted that the effect of those actions was that she became intimidated. Mr Mansfield and Ms Lowe explained their actions as being prompted by concerns about the refuelling practices of Ms Hodge, which they viewed as potentially compromising to public safety. His Honour found that, while that may initially be accepted as a legitimate reason to capture images of refuelling practices, the integrity of the assertions may have been questionable and the real explanation lay elsewhere.
[22] Ms Hodge relied, inter alia, on the evidence of Mr Braden Cosmire and Mr Andrew Bird, who said that they overheard Ms Veness making comments to persons enquiring about the seaplane operations, to the effect that the aircraft was being operated illegally and that there was no insurance cover in place for the benefit of patrons. McCosker LCM observed that that evidence was not corroborated by the persons to whom the comments were said to have been made, and that Ms Veness had submitted that the comments were not made at all. His Honour found that the evidence was 'of assistance' but not of itself determinative.
[23] McCosker LCM found that there were indeed concerns about refuelling practices employed at the waterfront for both marine craft and Ms Hodge's seaplane. His Honour said that it mattered not how the issues were raised, but that it was important that the issue had been subject to review by WorkCover NSW, which resulted in what his Honour described as a 'seismic shift' in operational practices, with marine vessels no longer being permitted to be refuelled at the waterfront site of the individual operators, but rather at the Port Macquarie Marina. His Honour also accepted that the initial complaints regarding refuelling were established and justified the issue of improvement notices by WorkCover. However, such notices were not issued to Ms Hodge alone: other operators were required to streamline their refuelling practices as well. While a refuelling improvement notice was issued in respect of Ms Hodge's seaplane business, it was acknowledged that, because of the unique nature of the aircraft and its lack of land base capabilities, there were no other viable or reasonable alternatives to refuelling at the same site, albeit under varied conditions. His Honour found that Ms Hodge had complied with the altered practices required by WorkCover to the satisfaction of Mr Rod Allen, an inspector with WorkCover.
[24] McCosker LCM found that complaints to WorkCover about Ms Hodge's seaplane had originated only from Mr Fowler and Ms Veness. No other independent member of the public or waterfront operator had made a complaint about Ms Hodge. No complaints of a similar nature had been received prior to Ms Hodge's owning and running the business. Further, there was no evidence of any complaint from any person about the post-investigation refuelling arrangements, other than from Ms Veness and persons associated with her.
[25] McCosker LCM observed that there could be no criticism of Ms Veness for bringing her concerns to the attention of the appropriate authority. His Honour accepted that it was within the province of any person to make a bona fide complaint to the appropriate authority about issues that trouble the person. However, in his Honour's view, once such a complaint has been investigated and either actioned or dismissed, that should, in the normal course of events, be the end of the matter. His Honour observed that Mr Allen retained no lingering issues with the ongoing compliance by Ms Hodge with the required refuelling improvements that had been introduced.
[26] However, McCosker LCM found that Mr Allen continued to receive regular complaints from Ms Veness regarding Ms Hodge. While he only received one formal complaint from her, his contact with her was far more extensive. He said that he probably received in excess of 40 calls, in respect of only 20 of which he made an official notation. He said that he refused to take action on the ongoing complaints by Ms Veness because he formed the view that they were 'vexatious in nature', since the refuelling and operation of the seaplane had been successfully dealt with by WorkCover. McCosker LCM regarded Mr Allen's evidence as 'telling', since his Honour considered that the prior experience of Mr Allen, as a trained investigator to detective standard in the New South Wales Police Force, adequately equipped him to form such a view.
[27] Ms Veness did not deny that she had taken photographs of Ms Hodge refuelling her aircraft. She said that she did so at the request of Mr Allen, although that proposition was not put to Mr Allen for his comment when he gave evidence. In any event, McCosker LCM concluded that Ms Veness sought to justify her photographing of Ms Hodge on an indefensible basis. His Honour found that there was an attempt to legitimate the photographing activities by claiming that they were undertaken out of concern for public safety and welfare, when there was no reasonable basis to hold that view. His Honour concluded that the real purpose was to continue to interfere with Ms Hodge and to cause harassment by making it abundantly clear that she was being regularly photographed.
[28] McCosker LCM found that there had been a total marginalisation of Mr Fowler and Ms Veness by other independent business operators at the waterfront. Ms Veness described those operators as 'a coalition of bullies formed to rail against us'. His Honour posed the question as to what motive lay behind such a situation and who was to gain from it. His Honour concluded that there was 'a toxic environment' in place at the waterfront and that Ms Veness did not enjoy a cordial relationship with other business operators in the area. His Honour considered that Ms Hodge's evidence concerning unnecessary interference with her business and that of others would provide a framework for an explanation for the situation, since nothing in the evidence of Ms Veness was capable of doing so.
[29] McCosker LCM said that Ms Hodge had indicated that, due to the ongoing behaviour of Ms Veness, she was unable to continue her business operations and that she was intimidated by Ms Veness. His Honour said that he was satisfied, to the requisite standard, that the behaviour of Ms Veness fell within the definition of intimidation under s 7 of the Crimes Act. His Honour was further satisfied that the fears expressed by Ms Hodge were a reasonable response to the behaviour of Ms Veness and that it was sufficient to warrant the making of the APVO claimed by Ms Hodge."
The Court of Appeal also referred in some detail to the decision of his Honour Ellis DCJ when considering Ms Veness' appeal to the District Court:
"[30] In his reasons of 2 April 2014, Ellis DCJ observed that it was for him, utilising the materials that were before McCosker LCM, to determine whether he was satisfied, on the balance of probabilities, that an APVO should be made. He then restated the requirements of s 19 of the Crimes Act.
[31] Ellis DCJ considered that it was clear from the reasons of McCosker LCM that his Honour had accepted the evidence given by Ms Hodge and by those who were called in her case to give supporting evidence regarding the conduct of Ms Veness. His Honour observed that McCosker LCM had rejected Ms Veness's denials of the allegations and had rejected her evidence regarding her motivation for doing some of the things that she agreed that she had done. His Honour said that he did not propose to go through 'each and every witness' since the basis of Ms Hodge's application was that there was ongoing conduct that amounted to harassment and molestation, in the sense of ongoing pestering. His Honour said that, having read the material and having had the benefit of reading what he believed were the views of McCosker LCM in relation to the witnesses, his Honour accepted the evidence of Ms Hodge and the evidence of the various witnesses who were called in her case and rejected the evidence of Ms Veness and those who were called in her case.
[32] Ellis DCJ accepted that there had been no actual violence, but observed that it is not necessary for there to be actual violence before s 19 of the Crimes Act can operate. His Honour observed that the purpose of the legislation is 'to ensure peace between citizens'. His Honour accepted that the Court needs to be careful that orders under s 19 are not misused in the way that such orders can be, 'in terms of family disputes, custody struggles, etc'. His Honour said that it seemed to him that 'the legislation is specifically aimed at this type of problem', although his Honour did not explain what he meant by 'this type of problem'.
[33] Ellis DCJ found that, as McCosker LCM put it, 'there clearly is a toxic environment down on the wharf … as between Ms Veness and her partner, Mr Fowler, and the business they run and every other business operator on the wharf'. His Honour rejected the notion that 'there is a coalition of bullies against Ms Veness and Mr Fowler'. His Honour considered that an APVO could work very effectively 'in circumstances such as this'. His Honour accepted that an order ought not to be made lightly, but observed that 'in a situation such as this, these businesses have to get along because, unless someone goes out of business, they need to operate from that particular location'.
[34] Ellis DCJ went on to observe that, while there had been no actual threat of violence, the reality was that 'toxic environments where harassment and molestation takes place often provide the background or basis for significant breaches of the criminal law'. His Honour said that at least one of the purposes of the Crimes Act was to try to 'water down such environments, so that the chances of any volatile conflagration are minimised'. His Honour said that he found himself in agreement with McCosker LCM and, on the evidence, accepted that Ms Hodge fears ongoing harassment or intimidation by means of harassment and molestation and that there are, on the balance of probabilities, reasonable grounds for her to hold those fears. His Honour concluded that the conduct was such as to be sufficient to warrant the making of an APVO."
At [57], Emmett JA came to the following conclusion, with which the other members of the Court agreed:
"[57] In circumstances where Ellis DCJ made his decision and gave his reasons for that decision ex tempore, immediately following the completion of oral argument, I consider that his Honour's reasons should be understood as saying that, having considered all of the material before McCosker LCM, his Honour accepted the findings and conclusions of McCosker LCM, for the reasons given by McCosker LCM. There was no error - whether jurisdictional error or error on the face of the record - on the part of Ellis DCJ in adopting that approach. There being no error established (or alleged) on the part of McCosker LCM, it follows that no basis has been established for interfering with the decision of Ellis DCJ. The summons filed on 2 July 2014 should be dismissed with costs."
In what I concede is my somewhat circuitous approach, it is apparent from the extensive extracts from that case that the Court of Appeal proceeded upon the basis that the appellant's conduct was capable of amounting to intimidation within the meaning of s 7 of the Act. It was, with respect, conduct that was both harassment or molestation and intended to cause fear of at least mental harm.
Finally, in the context of a trial in which Mr Turnbull was charged with murder, the question arose as to whether he could raise the defence of extreme provocation. His Honour Johnson J dealt with this in R v Turnbull (No 5) [2016] NSWSC 439. His Honour observed at [11] as follows:
"[11] I am conscious that caution must be exercised in taking a step in advance of the trial which would operate to reduce, or even remove, the basis upon which an accused person may seek to rely upon a partial defence such as extreme provocation: Lindsay v The Queen [2015] HCA 16; 255 CLR 272 at 284 [27]-[28]. I am satisfied, however, that in circumstances where a new statutory provocation provision is being considered for the first time, and where the context in which it is said to arise is most unusual, that the course which I am taking is both open to the Court and appropriate."
In that case, Mr Turnbull shot and killed Mr Turner, who was a Compliance and Regulation Officer for the Office of Environment and Heritage, Department of Premier and Cabinet. His role involved investigating illegal land clearing and prosecuting individuals for breaches of s 12 of the Native Vegetation Act 2003. Mr Turner was killed in the course of performing his duties in that capacity.
Mr Turnbull sought to argue that the partial defence of extreme provocation was available to him because Mr Turner's conduct and actions towards him amounted to intimidation within the meaning of s 7 of the Act. Helpfully for present purposes, Johnson J cited portions of the Second Reading speech delivered by the Attorney General on 8 May 2014 with respect to the then proposed amendments to the Crimes Act dealing with provocation. His Honour's reasons contained the following:
"[58] The Attorney General described s 23(2) as 'setting out a four staged test'.
[59] With respect to s 23(2)(a), the Attorney General said:
'The first threshold is set out in proposed section 23 (2) (a), which requires that the act causing death was in response to conduct towards or affecting the accused.'
[60] The Attorney General then referred to s 23(2)(b):
'Proposed section 23(2)(b) requires that the 'conduct' relied upon must amount to a serious indictable offence. A serious indictable offence is any offence which, when dealt with on indictment, carries a maximum penalty of five years or more imprisonment. The word 'conduct' is not otherwise defined. This threshold ensures that the jury must be satisfied there is a reasonable possibility that the conduct of the deceased was behaviour that the community and Parliament have already determined is so serious that it attracts a significant criminal penalty. This reflects the view that, in contemporary society, there is an expectation that people otherwise faced with offensive, insulting or upsetting conduct should not contemplate homicide or inflicting really serious injury.
The requirement that the behaviour of the deceased amount to a serious indictable offence will also ensure that members of the community who are lawfully going about their business do not inadvertently 'provoke' another person to form an intention to kill or seriously injure them. What this threshold also provides of course is that merely leaving a relationship or infidelity will never provide a foundation for the partial defence because every member of the community has the right to exercise his or her personal autonomy in this way. As a select committee member, the Hon. Trevor Khan, stated in the other place previously the problem with a list of excluded behaviour was that if the excluded conduct took place in the context of other provocative behaviour it would be highly artificial and difficult to exclude, for example, allegations of infidelity.
Despite this restriction, victims of domestic violence will be able to rely upon the partial defence in appropriate cases. Domestic violence, particularly long-term abuse, will generally involve conduct involving serious indictable offences, such as the range of assaults in the Crimes Act 1900. Even where abuse is not physical, but psychological, it may amount to the serious indictable offence of stalking or intimidation set out in section 13 of the Crimes (Domestic and Personal Violence) Act 2007. These offences are committed where the perpetrator's conduct is intended to cause the victim to fear physical or mental harm to themselves or another person with whom they have a domestic relationship. These offences are further defined in sections 7 and 8 of that Act to encompass a broad range of behaviours. As sections 7 and 8 make clear, they also envisage the introduction of evidence of past violent conduct, particularly where it involves a domestic violence offence. The concerns of stakeholders that victims of domestic violence may be prejudiced is also addressed by the continued recognition in proposed section 23 (4) that the conduct relied upon need not necessarily have occurred immediately before the act causing death.'
[61] With respect to s 23(2)(c), the Attorney General said:
'Proposed section 23 (2) (c) sets out the third step in establishing provocation, namely that the conduct of the deceased caused the accused to lose self-control. The bill retains a loss of self-control as the partial defence's central element. Replacing this with the requirement that the accused felt a 'justifiable sense of being seriously wronged', as recommended by the select committee, could significantly expand the use of the law of provocation, contrary to the committee's policy intent. In particular, if there was no requirement for loss of self-control, this could open up the use of the partial defence to situations involving a premeditated plan to kill. The partial defence should not be available in that situation. If satisfied the accused did lose self-control then the jury moves on to the final limb of the test in proposed section 23 (2)(d).'
[62] The Attorney General turned to s 23(2)(d) and said:
'Proposed section 23(2)(d) further tightens the test by requiring the jury to apply a purely objective test. They must consider whether the provocative conduct was so extreme that an ordinary person could have lost self-control to the extent of forming an intention to kill or inflict grievous bodily harm. The removal of the words in the existing section 'in the position of the accused' will have the effect of removing the need for the jury to assume that the ordinary person has been provoked to the level that the accused was, because they will be determining whether an ordinary person could have been so far provoked as to have lost self-control and formed the requisite intent when faced with that conduct. This will simplify the jury's task and provide for a greater focus on ordinary community standards. Although the select committee did not propose this change, it is consistent with its intention to restrict the use of the partial defence, reduce its complexity and bring it into line with community standards. It is hoped that this focus will ensure that cases such as that of Singh, which caused justifiable outrage in the community, will be a thing of the past.'
[63] A little later, the Attorney General said:
'I stress that the use of the partial defence requires, first, that the provocative conduct amount to a serious indictable offence; secondly that the accused lost self-control in response to it and; thirdly, that the behaviour constituting the serious indictable offence was so extreme that an ordinary person could also have lost self-control and formed the requisite intent.'
[64] The Attorney General said:
'New section 23(3)(b) also excludes the use of the defence in situations where the accused has incited the provocative conduct in order to use violence in response. New section 23 (4) provides that conduct of the deceased may constitute extreme provocation even if it did not occur immediately before the act causing death. As mentioned previously, this will provide protection for victims of long-term abuse in slow burn situations and is consistent with the current section 23(2)(b).'
[65] The Attorney General observed that the Bill was 'intended to deliver a limited and targeted partial defence'.
[66] In concluding the second reading speech, the Attorney General said:
'The select committee also recommended that section 23 explicitly require that trial judges leave the partial defence to a jury only where there is reasonable evidence of it. Under common law only where there is reasonable evidence of partial and full defences must the trial judge explain the relevant law and direct the jury to consider it in reaching its verdict. To legislate this in relation to the partial defence of provocation alone would again serve only to complicate and confuse matters'."
Johnson J then expressed the following conclusions with respect to s 23(2)(b) of the Act:
"[75] It may be accepted that conduct which constitutes a stalking or intimidation offence under s 13 may fall within s 23(2)(b). So much was acknowledged by the Attorney General in the course of the second reading speech referred to at [60] above. The context for the Attorney General's comments, of course, was conduct within a domestic relationship over a period of time which could fall within s 13.
[76] I accept that a s 13 offence is not confined to conduct in a domestic setting. However, where the conduct sought to be relied upon as a s 13 offence is that of a public officer exercising compliance or enforcement functions, I consider that conduct is only capable of constituting a s 13 offence if it falls completely outside the exercise of the public officer's functions. By that I mean that the conduct in question must be detached entirely from the officer's employment functions.
[77] It is not sufficient to raise potential s 13 liability that the officer may have been rude, abrupt, perhaps even overzealous in the performance of functions in the course of employment. The issue under consideration here is not one of best practice, but whether conduct may constitute a serious criminal offence under s 13 Crimes (Domestic and Personal Violence) Act 2007."
It is apparent from his Honour's remarks that Mr Turner's conduct could possibly have amounted to intimidation within the meaning of the definition, but could not in the circumstances of that case amount to a serious indictable offence having regard to the official capacity in which Mr Turner was exercising his duties and functions.
In my opinion, accepting my conclusion that the conduct in question can be attributed at least in part to the deceased, as opposed to being attributable solely to Ms Knight, I consider that it is quite clearly capable of amounting to intimidation. There are a number of reasons for this. First, harassment covers a wide range of behaviours of an offensive nature. It is commonly understood as behaviour that demeans, humiliates or embarrasses a person. Its synonyms include persecution, harrying, pestering, badgering, intimidation, bother, annoyance, aggravation, irritation, pressure, coercion and molestation. The evidence suggests that this is precisely the type of conduct of which Mr McDonald complained to the police during his recorded interview.
Secondly, the conduct in question does not necessarily have to be associated with violence or the threat of violence. Conduct of the type described by Mr McDonald could clearly amount to conduct capable of causing mental harm.
Thirdly, it might reasonably be inferred that the type of verbal abuse and actions such as slamming doors to create a noisy disturbance that have been described were committed or performed with the necessary intention by the deceased of causing at least mental harm to Mr McDonald. The threshold is in my view quite low.
It is instructive and important to note that "serious indictable offence" is defined by reference to the penalty imposed for an offence, not by reference to discrete subjective judicial assessments of the seriousness of the events that constitute the commission of a particular offence. It follows, therefore, that what might be described as an offence of limited objective seriousness can nevertheless qualify as a serious indictable offence for the purposes of s 23 of the Crimes Act.
The legislative reference to serious indictable offence was undoubtedly formulated with a broad range of serious criminal conduct in mind. The fact that it captured offences against s 13 of the Crimes (Domestic and Personal Violence) Act may seem on one view to be curious. However, that apparent curiosity is easily explained when regard is had to the wide and frightening range of conduct that is regularly captured within the terms of the provision. The fact that the conduct of which Mr McDonald complains is possibly at the lower end of the spectrum is entirely beside the point. It is clearly capable of constituting a serious indictable offence.
[7]
The third question
In my opinion, the conduct of the deceased did cause Mr McDonald to lose his self-control. He said as much in his interview with the police. There is unremarkably no evidence to the contrary.
[8]
The fourth question
It seems to me that the answer to this question raises a significantly different consideration to the previous three questions. So much is clear from the wording and structure of the four paragraphs of s 23(2) of the Act. Paragraphs (a), (b) and (c) deal with matters that must be found by me on this application as what might be described as gateway or threshold facts. Was the act of the accused in response to conduct of the deceased? Was the conduct of the deceased a serious indictable offence? Did the conduct of the deceased cause the accused to lose self-control? An affirmative finding on each separate issue is a precondition to the issue of extreme provocation being left to the jury.
By way of important contrast, paragraph (d) only calls for a determination of the question of whether the conduct of the deceased could have caused an ordinary person to lose self-control to the relevant extent. The question merely raises assessment of a possibility. It is potentially the most significant question for the jury if the partial defence is ultimately left to them. However, for the purposes of the present application, Mr McDonald would appear to bear an onus no higher than the establishment of the possibility, as opposed to the fact, that the conduct of the deceased could have caused an ordinary person to lose self-control to the requisite extent. It is sufficient for my purposes to indicate my opinion that it could.
[9]
Discernment
Although not specifically referred by counsel to these cases, I have taken note of the following passages from decisions of the High Court decided two decades apart.
The first is Masciantonio v The Queen (1995) 183 CLR 58; [1995] HCA 67 at [30]:
"[30] The answer to the question whether the trial judge should have left provocation to the jury at either stage of events in this case depends upon whether there was evidence which was capable of constituting provocation. However, because the onus of disproving provocation rests upon the prosecution once there is evidence to raise the question, the actual test must be expressed somewhat more precisely. It is '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'. The question is the same when a trial judge is considering whether or not to leave provocation to the jury as it is when an appellate court is considering whether it ought to have been left, but as a matter of practicality a trial judge is likely to lean towards leaving provocation if he or she can. As was observed by the Privy Council in Lee Chun-Chuen v. The Queen:
'there is a practical difference between the approach of a trial judge and that of an appellate court. A judge is naturally very reluctant to withdraw from a jury any issue that should properly be left to them and he is therefore likely to tilt the balance in favour of the defence. An appellate court must apply the test with as much exactitude as the circumstances permit'."
The second is Lindsay v The Queen (2015) 255 CLR 272; [2015] HCA 16 where it was said:
"[23] The widespread criticism of the partial defence of provocation has led to its abolition or modification in all of the Australian jurisdictions, save South Australia. This appeal is concerned with the common law of provocation, which remains the law in South Australia.
[24] The rationale for the requirement that the court determine as a matter of law whether evidence is capable of constituting provocation was identified by Dixon J in Packett v The King as the need to apply an overriding or controlling standard for the mitigation allowed by law. The statement, made with respect to provocation under the Criminal Code (Tas), which provided that 'the question whether any matter alleged is, or is not, capable of constituting provocation is a matter of law', has been accepted as a statement of the common law of provocation in Australia.
[25] In Stingel v The Queen, this Court affirmed that the function of the ordinary person test is to provide 'an objective and uniform standard of the minimum powers of self-control' which must be observed before provocation may reduce what would otherwise be murder to manslaughter. In this connection, the Court approved Gibbs J's statement respecting the relevance of contemporary conditions and attitudes to that determination. Masciantonio v The Queen confirms that the statements in Stingel, while made with respect to the Criminal Code (Tas), are equally applicable to the common law of provocation in Australia.
[26] Under the common law of provocation, the trial judge and the appellate court have the task of fixing the boundaries of the minimum powers of self-control that must be observed before it is open to the jury to find that murder is reduced to manslaughter by reason of provocation. The question for the trial judge and the appellate court is the same: 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'. The determination of the question by the appellate court involves somewhat greater exactitude than the determination made by the trial judge. This reflects, as a matter of practicality, the reluctance of trial judges to withdraw the issue from the jury and the tendency to 'tilt the balance' in favour of the accused." [Citations omitted]
In my opinion, the partial defence of extreme provocation is available as an issue that should be left for consideration by the jury.
[10]
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Decision last updated: 09 July 2019
Parties
Applicant/Plaintiff:
R
Respondent/Defendant:
McDonald
Legislation Cited (2)
Crimes (Domestic and Personal) Violence Act 2007(NSW)