R v McKeown [2006] VSCA 74

"As I said, there are two elements or two parts in the concept of provocation. The first is that the acts of the deceased which are said to constitute that provocation caused the accused man to lose his self-control and that the acts causing the killing were done during a period of that loss of self-control. Perhaps, a phrase that is often used is 'a crime in the heat of passion'. The second aspect of this 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 person to react in the same way as the accused reacted in this case."

4 There are two difficulties in the last two sentences of that passage, in which the objective element is restated. One difficulty is that the jury may not have understood the first sentence as being solely introductory to the second. They may well have thought that proportionality was an essential part of the objective element of provocation.[2] The expression "the law will only concede" is a strong expression, to which they are likely to have paid particular attention. The other difficulty is that,

particularly coupled with a reference to proportionality, the jury may have thought that "react in the same way", in the next sentence, meant "react in precisely the same way". That, too, would be a misdirection.[3]

5 For these reasons I would uphold ground 3(a). It is unfortunate that the judge did not receive more assistance from counsel, neither of whom noticed the problem in the charge. Ground 1 was not pursued. There is no need to consider ground 2. I would refuse leave to add ground 4[4].

6 I agree with Vincent, J.A. that the trial judge's directions to the jury with respect to provocation were deficient in failing to place the deceased's action in smashing the headlights of the applicant's car in the context of the relationship between the deceased, the applicant and Ms Langdon. I also agree with Callaway, J.A. that the trial judge erred in apparently making provocation dependent upon the provocation being proportionate to the acts that caused death and requiring the reasonable man in the position of the applicant to have reacted to the provocation in precisely the same way as the applicant. Accordingly, I would allow the appeal, set aside the conviction and sentence thereon and order that the applicant be retried. I would refuse leave to add the proposed ground 4.

7 On 24 September 2003, the applicant was found guilty by the jury empanelled on his trial, of the murder of Richard Van Zanten on 16 July 2002[5].

8 He now seeks leave to appeal against this conviction on the ground:

2. That the verdict of the jury was unsafe and unsatisfactory. [6]

9 At the commencement of the hearing before us, counsel for the applicant sought and was granted leave to add the grounds that:

3. A miscarriage of justice occurred by virtue of the learned trial judge having erred in his directions to the jury as to the partial defence of provocation and, in particular by:

(a) directing the jury that "the law will only concede the existence of provocation if there is some kind of proportion between the provocation and the murderous act"; and,

(b) confining the case supportive of provocation to merely the deceased's trespass at the applicant's premises and the deceased's conduct in smashing the headlights of the applicant's motor car.

10 In my view leave to add the following proposed ground should be refused as it lacks substance:

4. The learned trial judge erred by inviting the jury to consider the alternative verdict of manslaughter by unlawful and dangerous act only in the event that they were not satisfied of guilt of murder.

The Background

11 The incident which gave rise to the charge of murder against the applicant occurred during the evening of 16 July 2002 at the home of the applicant's partner, Suzanne Langdon, in Amaroo Street, Chadstone. Ms Langdon had been in a de facto relationship with the deceased between about 1992 and May 2002 and until the time of their separation they resided together in that house. Both the deceased and Ms Langdon were heroin addicts and the evidence indicated that their relationship had been quite volatile. They had one child, a boy, who was born in January 1996, and significant tensions had arisen between them with respect to access arrangements for the child. It would also seem to be reasonably clear that the deceased experienced great difficulty in accepting that their relationship was at an end.

12 Shortly after the break up of this relationship, Ms Langdon, in May 2002, entered into another with the applicant and he moved into the Amaroo Street house.

13 On the morning of 16 July 2002, the deceased telephoned Ms Langdon seeking to have a discussion with her about maintenance and other matters. She agreed to meet him at the Richmond railway station for this purpose. However during the afternoon of that day, in a number of telephone calls, he insisted upon seeing her at her home. She rejected his requests and became increasingly agitated about the possibility that he would nevertheless arrive there.

14 In the late afternoon, after finishing work for the day, the applicant went to Ms Langdon's mother's home which was situated a short distance from the Amaroo Street house. Ms Langdon, her mother and other persons were present. Shortly thereafter, Ms Langon left and walked to a nearby bottle shop to purchase alcohol. On her return, she walked past her own home and became suspicious that the deceased may have been inside. She returned to her mother's home and informed the applicant that she believed he was there.

15 Upon hearing this, the applicant, in company with John Langdon (Ms Langdon's brother), drove to Amaroo Street, arriving there soon after 7.00 p.m. The applicant parked his car in the driveway of the house and entered the house, but found no one present. He checked the backyard which was in darkness and again saw no one.

16 The applicant and John Langdon then returned to the front of the premises and shortly afterwards heard the sound of smashing glass was heard. Although the deceased had not been sighted, it soon became apparent that he had caused this noise by smashing the headlights of the applicant's motor vehicle.

17 The deceased then entered the rear yard of the premises, carrying a "stubbie" of beer. On observing the next door neighbour, Christopher Wright, near the dividing wooden paling fence, the deceased approached him and engaged him in conversation.

18 Wright had been working in his backyard and was walking to his back door when he heard someone say "oi" or some similar expression. He had not been aware anyone was at the house next door until then. When he turned, he saw the deceased who commenced to rail against the applicant, saying things like "He's forced me out of the house" and "I want to get back". He told Wright that he had just smashed the headlights of the applicant's car. Apparently sensing that Wright did not want to become involved, the deceased became angry and directed various obscenities at him for "taking their side." Wright responded that he had to live next door and that his response was not directed to the deceased personally.

19 He had a second conversation with the deceased about two or three minutes later as he was standing on his rear porch[7]. He presumed that the deceased must have been standing on the bottom rail of the dividing fence with his arms on the top rail. The deceased was holding a "stubbie" in one hand, but whether he had anything in his other, Wright was unable to see.

20 As Wright was talking with the deceased, who he noted had been drinking, "just out of the blue there was this almighty thud", which "scared the living daylights" out of him. The deceased then disappeared off the fence. Wright stood there "sort of dumbfounded" and saw what appeared to be "like a stick coming up and down over the fence" at least four to five times. He could not hear anything save for the noise it made "swishing through the air" and a thud, that he presumed was the deceased hitting the ground. He rushed to the fence and saw that the applicant was hitting the deceased with the "stick". The deceased was "virtually laying like where [Wright had been] talking to him." He was, Wight thought, lying on his side, but he was not sure. At this point, Wright saw the applicant hit the deceased with the "stick" "approximately two or three times", in a "full-on frenzied behaviour", and he screamed at him to stop, whereupon the applicant immediately threw it down. Wright called out "What are you doing, you are going to kill him if you keep going!" The applicant responded with words to the effect of "fuck him, he smashed my lights how am I supposed to get to work tomorrow". Wright said something to the effect that it was not worth killing the deceased over a couple of headlights.

21 Wright then walked towards his house, but returned when he appreciated that the applicant had not moved away. When Wright reached the fence, he saw the applicant, who was obviously still seething and really angry, saying things to the deceased like "you dog, you cunt, you happy now". He was down on one knee punching the deceased to the head. Wright again screamed at him to stop. The applicant jumped up and Wright thought that he tried to pick up the deceased. Wright called out to the applicant that he had gone "way too far this time" and then went inside his house.

22 Suzanne Langdon stated that she had lived at Amaroo Street with the deceased until May 2002 and the applicant from July 2002. The deceased and she used heroin and there was violence in their relationship. On the evening of 9 May 2002, they had an argument and she told him that she wanted to break up with him and commence a relationship with the applicant.

23 She stated that the deceased maintained some telephone contact with her thereafter. On one occasion in June, he came to the Amaroo Street house and a problem arose when he would not leave the premises. Ms Langdon's mother attended and together they managed to manoeuvre him out of house before they both left. On that occasion he was drunk and affected by drugs. After that incident she spoke to him a "couple of times" on the telephone, primarily concerning arrangements for access and maintenance.

24 On the weekend before 16 July 2002, there had been an access arrangement. Ms Langdon picked up the boy from the deceased, on the Sunday, at a city fast-food shop. They had a discussion about maintenance, which continued after they returned to the deceased's daughter's flat in North Melbourne, where he was staying at the time. The deceased indicated that he wanted to effect a reconciliation, but appreciated that she did not want this. Ms Langdon stayed overnight at North Melbourne as he would not let her leave and her son was scared. In any event, she stated, it was too late to get public transport home and she had not wanted to disturb her mother. She went home with her son on the following morning. Later that day, she discussed the previous night with the applicant, telling him that she had stayed not because she had wished to but because she felt trapped.

25 On the morning of 16 July 2003, she spoke to the deceased by telephone and they discussed meeting at the Richmond railway station later in the day. More telephone conversations ensued between them over the following hours. The deceased said he wanted to meet her to give her money for their son. Ms Langdon was at her mother's home in Chadstone when she received one of these telephone calls at about 3.45 p.m. The deceased said that he wanted to see her at her house and she told him that she did not want him to go there. He insisted that he would and said that he did not care who was present or what visitors were there. He was angry and she became very distressed by the telephone calls. She called him twice, repeating that he was not to come, but he hung up both times.

26 The applicant arrived from work at her mother's house between 4.00 to 4.30 on that afternoon and she apologised for the number of phone calls between herself and the deceased and "all the trouble that had been going on." The applicant did not know a great deal about the difficulties she was encountering in securing maintenance for her son[8]. The applicant then went to the Amaroo Street house to have a shower. While he was away, she had a further telephone conversation with the deceased and again he said that he was coming around. At some stage, the applicant rang her and told her that he had received two calls from him and he told her to ring the deceased. She called him at around 7.00 p.m. and again told him not to come around, but he expressed determination to do so.

27 She decided to go for a walk, hoping that she would see him and settle things down. She called in at the Matthew Flinders Hotel but he was not there. It was approximately 7.00 p.m. and dark when she began to walk back to her mother's home. She went through the park at the rear of Amaroo Street and as she continued past her house she noticed that there was "something about some lights" that attracted her attention. She thought that the deceased, who had a set of keys, was inside. When she arrived at her mother's house, she told the applicant about the lights and she thought that he indicated that he may have left the television on, but that he was not sure about other lights. Later, the applicant and her brother, John, decided they would go to the house to check. She indicated that everyone, save herself, was calm.

28 About half an hour later, she received a telephone call from the applicant who said that he was at the Amaroo Street house. Her mother then decided to drive, with the applicant's son, Mark McKeown, to Amaroo Street.

29 John Langdon lived with his mother at Burton Street, Chadstone. He was home all day on 16 July 2002 watching television and was present when the telephone calls were made between Ms Langdon and the deceased.

30 The witness was watching a news broadcast at around 6.15 p.m. or 6.20 p.m., when the applicant arrived. He (the applicant) stayed for a short time and then went home to have a shower, returning after about half an hour. Shortly afterwards, Langdon and the applicant left the house in the applicant's Ford station wagon and drove to Amaroo Street. The applicant drove, talking about work and there was no discussion concerning the deceased. Although the applicant suggested they go to the house and "have a look after tea", according to John Langdon, he had seemed "calm and happy" at the time.

31 When they arrived at the house, they parked behind another white car in the driveway. Everything seemed quiet, although there was light burning inside. The applicant and he went to the front door which the applicant unlocked. They checked inside and did not see anything out of the ordinary. Both men then went to the back yard which was in darkness, apart from the light from the basketball arena car park lighting at the rear. Observing nothing of significance they went to the front of the premises.

32 A couple of minutes later, John Langdon heard "a couple of bottles clanging". The sound emanated from the rear of the house. The applicant handed him his mobile telephone and walked up Amaroo Street towards Waverley Road. Langdon stood on the footpath for about five to 10 minutes. He then heard a "smash, smash" from the front of the house, but again did not see anything. He walked across the road and leaned against a tree. After a short time, he started to walk towards Power Avenue, intending to walk home to Burton Street.

33 A couple of minutes later, he encountered his mother in her vehicle. He got in and they went back to Amaroo Street. John Langdon noticed that the front door was open and his mother, Mark McKeown and he went inside. He heard a sound like an "uugh", which came from the outside rear of the premises, while he was in the kitchen area and went to investigate. At first he could not see much until his eyes focussed, but then made out a shadow on the ground, near the clothesline. It was the deceased and he was lying in "a coma position". The police and ambulance arrived about 15 minutes later.

34 Margaret Langdon, the mother of Ms Langdon and John, stated she lived at Burton Street, Chadstone, with John Langdon and another daughter, Kaye Langdon. Ms Langdon (Suzanne) called in at about mid-afternoon. Margaret Langdon went out at about 3.00 p.m. to pick up the children from school and then returned home. She observed that Suzanne was on the telephone during the afternoon, but she was too busy to notice what was said. The applicant arrived at her home at around 4.30 p.m., and later he went home to have a shower. She prepared the evening meal and thought they had "tea" between 5.00 and 5.15 p.m.

35 Later, after dark, Suzanne decided to go for a walk to buy some liquor. The witness heard her return about 15 to 20 minutes later. There was a discussion about a light being left on and she heard the applicant say "We'll go and check the house for you." The applicant and John left to do so. Although she could not be specific about what time this was, she thought that it was about 6.30 p.m.

36 She stated that not long after the evening meal she drove to Amaroo Street. On the journey, she saw John walking and stopped to pick him up, then continued and parked her car behind the applicant's station wagon. The front door of the house was wide open. John and she entered and walked through to the rear of the property where they saw the applicant, who she thought was "standing out somewhere just outside the back door". They asked what was wrong and he replied "Rick is laying over there, we had a fight." John and the witness attempted to help the deceased, but to no avail. After the police and ambulance arrived she noticed that there was damage to the headlights of the applicant's station wagon which was parked at the front of the house.

37 The relationship between Ms Langdon and the deceased had been volatile and he had been violent. She had seen him affected by drugs and alcohol and was aware that Ms Langdon was still having contact with him regarding their son. The telephone calls in the afternoon of 16 July 2002 had made her daughter extremely distressed. The witness heard her yelling during them and believed she was talking to the deceased.

38 Matthew Lynch, a forensic pathologist who conducted the post-mortem examination, stated the deceased's skull and cheekbones were fractured. He observed bruising under the skin to the neck, head, face and back of the head, and bruising on the back of the right hand underneath the skin, but nothing on the left hand. He obtained two blood alcohol samples of 0.19 per cent and 0.21 per cent. There was morphine in the blood and urine, and evidence of chronic injection marks on the inside of the left elbow, suggesting a history of intravenous drug use. There was also evidence in the blood of recent cannabis use.

39 Dr Lynch stated there was evidence of multiple facial bruises, scalp lacerations and fractures of the skull associated with brain injury. He stated he had observed a minimum of eight separate blows comprising two to the right side of the face, around the ear and cheek, one to the forehead, two to the left cheek, one to the back of the head on the left, one to the front of the neck, one to the chest on the left, and one to the chest on the right. He stated that the pattern of the skull fractures indicated "significant force applied to [the deceased's] head and face."

40 Dr Lynch stated that the deceased had four broken ribs, two on each side of his body. When asked whether, having seen the implement found at the scene, any of the injuries he observed were consistent with blows from it, he said:

"Something like that so a reasonably sturdy piece of wood, firm cylindrical type of object could produce a lot of the injuries I saw. The ones that I have described as a linear component, so essentially that one to the front of the neck, going to the collarbone, that could be produced by something like a piece of wood. I think one of the injuries on the left cheek has a linear component to it. Certainly it could be produced by something like a piece of wood. There is nothing about any of the injuries that would allow me to say this injury was definitely produced by this."

41 He stated that the injury to the back of the head "could be" consistent with being hit by the stick. Some of the injuries, such as a graze on the nose, black eye and graze on the chin, could have been produced by being hit by a fist, provided that the skin of the fist had sufficient abrasive quality to "sort of scrape the skin." He had not seen the splitting of an ear, of the type suffered by the deceased, caused by a fist, but he could not completely exclude that possibility. A simple blow with a bare fist did not produce that kind of splitting injury observed on the back of the deceased's head. Nor would a fist produce the injury to the front of the neck. While it would be unusual, a fist could have caused the rib fractures. The injury to the back of the right hand could have been made by any blunt instrument, or could have been sustained in fending off a blow or striking.

42 Julie McCall, a forensic DNA expert, stated that the stick found at the scene[9] had blood on it that did not match the applicant, but was 68 times more likely to be that of the deceased than another male in the Victorian community. There was blood found on the clothing and shoes worn by the applicant that was 98 million times more likely to be from the deceased than from another male in the Victorian community.

43 Deanne Van Zanten, the deceased's daughter, stated that the deceased and Ms Langdon came to her flat in North Melbourne on Sunday 14 July 2002. They were arguing over money and Ms Langdon stayed the night in the lounge room with him. The deceased was a heroin user who drank. He went to stay with her in about May 2002 but, in July, wished to return to live with Ms Langdon as he wanted his family back together. They discussed that on the night they stayed at the flat together and he was passionate about them resuming their relationship.

44 Noel Klower stated that he was the owner of NJK Demolitions in Richmond and that he had employed the deceased for a number of years as a general hand, welder and machine operator. He described him as the best employee he had in that time. He stated that employees could sleep in the yard at the Richmond premises and that it was possible that the deceased could have slept there for a few nights in May 2002, but he had never seen any evidence of that.

45 Peter Lolesi stated that he had worked with the deceased at NJK Demolitions. For the first week or so after the deceased moved out of the Amaroo Street house, he had stayed at the work yard in Richmond. After that, he had stayed with his daughter in North Melbourne. Lolesi told of an arrangement under which he drove the deceased to and from work. He stated that the deceased was not in an aggressive or violent mood, on 16 July 2002. Rather he appeared to be positive in attitude and talked about going to Amaroo Street to get his family back together. He had spoken about that on the previous day as well. On 16 July 2002, the deceased consumed his "usual" quantity of beer, which was described as two or three stubbies at lunchtime, and "a couple" in the afternoon. The deceased would have consumed a "six pack" of beer by early evening on that day. He knew the deceased also used heroin. When he dropped the deceased off that afternoon, Lolesi indicated that he thought he was going back to his daughter's home and then to Amaroo Street. Lolesi stated that he had seen him aggressive, but never violent.

46 Detective Senior Constable Boris Buick stated he had been in charge of the investigation, which included a video recording of the crime scene on the night of the deceased's death. Buick arranged for photographs to be taken of the injuries occasioned to the applicant[10] which showed that the applicant had sustained abrasions to the upper knuckle of the little finger and the wrist area. There was also an abrasion to the knuckle of the middle finger, which was an older wound, consistent with his employment as an old welding injury.

47 He stated that an interview was conducted with the applicant which was videotaped and audio recorded.[11] The applicant was informed of the deceased's death upon his release into the custody of the Homicide Squad by the police at Oakleigh.

48 Alex Jackson, a police officer, stated he attended a "verbal domestic" at Amaroo Street, on 10 May 2002, and spoke to the two people concerned, who identified themselves as Suzanne Langdon and Richard Van Zanten. They had calmed down by the time the other police officer and he arrived. They were separated and spoken to by the officers. In the course of their enquiries, it became clear that Ms Langdon wanted the deceased to leave, and an arrangement was made that Ms Langdon and her son would go to her mother's house for the night and the deceased agreed that he would leave the premises when he returned from work on the following day.

The Grounds

49 From the outset of the trial, the position adopted by the defence was that the applicant accepted that he had brought about the death of the deceased through the conscious performance of unlawful and dangerous acts. However, it was asserted, on any view of the matter there could be no doubt that he had lost control of himself as a consequence of both the earlier behaviour of the deceased and his conduct in smashing the headlights of the applicant's car only a few minutes before the fatal blows were struck. In that situation, the jury could not be satisfied beyond reasonable doubt, the argument proceeded, that, at the time he acted, the applicant possessed the intention to kill the deceased or inflict serious injury upon him. It was conceded that the applicant was guilty of the commission of the crime of manslaughter and asserted that, in the circumstances, that was the proper verdict.

50 Although it is apparent from the outline set out above that it had to be addressed by the trial judge in his charge, at no stage during the trial was there any suggestion advanced on behalf of the defence that what has been described as the partial defence of provocation might need to be considered until reference was made to it by the prosecutor in his final address.

51 Obviously a forensic decision must have been made by those involved in the presentation of the defence case not to address this possibility, presumably because it was feared that to do so might be perceived by the jury as indicating an acknowledgement of weaknesses in or a lack of commitment to their central proposition and presumably also in the reasonable expectation that the trial judge would provide instructions to the jury with respect to the availability of a verdict of manslaughter by way of provocation in any event.

52 Whilst this approach is one commonly adopted in criminal trials by both the prosecution and the defence for forensic purposes, and is not by any means confined to cases where the issue of provocation can be seen to arise, it can and does result, from time to time, in the creation of substantial difficulties for the trial judge. There is, for example, an inherent risk that the judge when putting an unaddressed possibility to the jury will reformulate the case in a way that has never been the subject of any real attention in the trial and thereby introduce the potential for a miscarriage of justice. It may also be that, in the absence of submissions to the trial judge or to the jury by counsel in their addresses, the judge will deal inadequately with some aspect. That, the claim has been made, is, in substance, what happened in the present case.

53 The smashing of the headlights of the applicant's car, which it would appear to be at least highly likely precipitated an attack on the deceased that the witness Wright described as "frenzied" and "out of control", could not, counsel argued, be viewed in isolation when considering the application of the concept of provocation. However, this was the effect of the trial judge's direction, he submitted.

54 What his Honour said to the jury on this aspect was:

"Here the evidence before you is that the conduct of the deceased man by being on the premises, in effect as a trespasser, when he had been specifically told not to be there, and his conduct by smashing the headlights of the accused man's motor car immediately before the events in question caused in the accused man a sudden or temporary loss of control. It is a matter for you whether the evidence before you is such that it can be said that the Crown has proved beyond reasonable doubt that the accused killed the deceased by acts performed when he had not lost his self-control, as a result of the conduct or the words or that the conduct of the deceased would not have caused an ordinary person in the situation of the accused to form an intention to kill or to do really serious injury to the deceased."[12]

"[The prosecutor] specifically addressed you in two blocks, if you like, about the intention. Then he said what could give rise to provocation? He says in his account to the police he is basically talking about the smashing of headlights. He said maybe you could add in into that the fact [the deceased] was a pest and came around. He says the evidence before you is that Suzanne Langdon never told him that [the deceased] had threatened to kill the accused man, so he says you have not got that. You have got the smashing of the headlights and the fact that he came around. He then went back to the issue of the telephone, said that sort of suggests this man might have been angry but was not out of control. As I say, you heard what [counsel for the applicant] had to say about that, I have read you the bit of transcript. He says if you have a reasonable doubt about that, that is that he lost his temper, became out of control because he was provoked by actions, he says in any event a reasonable ordinary person in the community would not act like that. An ordinary person would not go and get a stick and beat somebody with that stick and punch him because they smashed their headlights. You would think an ordinary person in the circumstances would telephone the police. So that is basically how the prosecution says you should be satisfied beyond reasonable doubt that the issue of provocation has been disproved.

[Counsel for the applicant] in his address to you submitted that the evidence of Mr Wright upon which the Crown clearly relies, establishes the loss of self-control. He says he is a man, referring to the deceased, who has been told not to come to the premises by Suzanne Langdon. Despite having been told that day not to come, he does so. He is in the backyard and shortly before the accused man comes across him he smashed the headlights of the accused man's car. He says that is the loss of self control."[13]

56 No exception was taken by either counsel to the adequacy of these instructions.

57 Counsel for the applicant in this Court submitted that it was apparent that there had been an escalating level of tension between the deceased and Ms Langdon, with whom the applicant was emotionally involved, causing her increasing distress and upset. There was evidence that she had apologized to the applicant for the threats and intimidation emanating from the deceased and it was uncontroverted that it was against that background, and to provide support to Ms Langdon who feared that the deceased had made good his threat to go there, that the applicant resolved to go to the house. The situation can be seen to have been highly emotionally charged and to have become more so when the applicant encountered the deceased who, as an act of malice, had just smashed the headlights of the car that he needed in order to get to work. The only eyewitness to what then transpired was the witness Wright and he described the applicant as a person who was clearly out of control at the time of his assault on the deceased. The effect of the final insult upon the applicant, and whether an ordinary person in the applicant's position might have acted as he did, could not be considered without reference to the broader context within which the fatal blows were struck, counsel submitted.

58 In my view, there is force in this contention and the further claim that, although the issue of provocation was put before the jury, "the immediate provocative act was at no stage placed in its proper evidential context". Nor was the jury provided with any instruction generally as to the relevance of the background of the increasingly fraught relationships between the various parties in their consideration of the objective test incorporated in the concept of provocation.

59 As the High Court pointed out in Masciantonio[14]:

"[T]he 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."

60 The trial judge in this situation was clearly required to provide the jury with appropriate instructions concerning the possibility of a verdict of manslaughter, based upon the application of the law relating to provocation. That, unfortunately, was not done. I have little doubt that this failure arose from what appears to have been the almost total concentration of all involved on the issue of the applicant's intention at the time that the fatal blows were struck.

61 Whether or not the jury would have returned a different verdict had the matter been put before them on that basis, is, of course, a matter of conjecture, certainly as a reasonable possibility, that outcome could not be excluded. What is clear is that they were not directed as to the proper way to approach their task. Indeed, by confining the matters to be taken into account, the evidence of a number of important background events and relationships was excluded as effectively irrelevant to their deliberations on this aspect, and specifically when considering the application of the objective test.

62 Accordingly, I would allow the appeal, set aside the conviction and sentence imposed and direct that a re-trial be had.

63 For completeness, I should add that I agree with Callaway, J.A. in his judgment and for the reasons advanced by him that ground 3(a) should also be upheld.

[1] [2000] VSCA 5; (2000) 1 V.R. 58 at 68 [45].

[2] Compare Masciantonio v. R. [1995] HCA 67; (1995) 183 C.L.R. 58 at 67 and the passages in Johnson v. R. [1976] HCA 44; (1976) 136 C.L.R. 619 to which reference is there made.

[3] Masciantonio v. R. at 67 and 69 - 70; R. v. Thorpe (No. 2) [1999] VSCA 172; [1999] 2 V.R. 719 at 724 [16] point 2.

[4] Compare R. v. Makin [2004] VSCA 85; (2004) 8 V.R. 262 at 272 [32].

[5] After hearing a plea in mitigation of penalty, the learned sentencing judge, on 15 April 2004, imposed a term of imprisonment of 16 years, in respect of which he fixed a non-parole period of 12 years.

[6] A further ground 1 was not pursued and need not be addressed.

[7] There was a sports field with a lighted car parking area behind the two properties and some artificial light was cast into the back-yards of the two properties. Wright's rear porch light was on.

[8] As I understand her evidence, Ms Langdon was concerned not to aggravate the situation by making an issue of her problems with the deceased.

[9] Exhibit "H".

[10] Exhibit "C".

[11] Exhibit "J".

[12] Charge T300.

[13] Charge T351-352.

[14] Masciantonio v. The Queen [1995] HCA 67; (1994-1995) 183 C.L.R. 58 at 67.