The trial judge then dealt with the Crown's submissions on diminished responsibility and on the family witnesses.
28 In his summing up the trial judge then turned to summarise the arguments presented by counsel for the accused. He referred repeatedly to the records of interview. After dealing with other aspects, he said the following in relation to the arguments on provocation:
"If I can pass on to provocation, Mr Young said we are dealing here with a 70 year old Hungarian born man, who is inflexible, with a fear of attacks by women because of his past experience in his homeland, who had married the deceased with the expectation that she would support him, and in circumstances where it appeared that she was not living up to the arrangement in which the marriage had been made and was quarrelling with him over money and over the house. In his words, he said a degree of ingratitude from her part had crept into the relationship. He also said that the accused had been subjected to demeaning language from the deceased and she had not curbed her daughter when the daughter abused him.
He referred to the threat with the knife, to the fact that the deceased had not picked him up at the airport at the end of July, the indications that his wife was phoning or speaking to someone else and was spending time away from the home and had said it was none of his business when she was asked why she wanted the car. He referred to the shaving cream incident and the diary, where he apparently regarded himself as being treated as a dog, and he referred to the evidence of the accused being struck with a brick. He said these matters together had built up over the months since his return from Hungary, and imposed upon a man who was inflexible, somewhat pedantic, set in his ways, capable of being angered by small things, such as the bathroom, but he usually walked away from disputes, as it occurred on the Sunday morning, built up to a point where he cracked, that is, provoked him to a point where he lost his self-control. He said this was a case where the tensions hadn't been broken by discussions or confrontation, possibly because of his nature to walk away from arguments of that kind.
In any event, he said that the events of the day concerning the car and the brick was the straw that broke the camel's back and in that environment, with a disputation which had built up, you would be left with a reasonable doubt as to whether the accused acted under provocation or not. He reminds you that if the Crown did not prove that he was not acting under provocation, then it had failed to prove that element which is required for the offence of murder (5/104-105)."
29 These remarks came very close to the end of the summing up. The summing up concluded with a summary of defence counsel's submissions on the evidence in relation to diminished responsibility, a summary of his comments on the relationship witnesses, and a summary of his concluding submissions.
30 It is convenient at this point to set out the whole of defence counsel's submissions which the trial judge was summarising (4/707-710):
"We ask you to bear in mind, in relation to this, that, firstly, you are dealing with a 70 year old Hungarian born gentleman; that he has been through the life that has been described to us, and in what has been described to us he has been, in essence, inflexible. That he certainly has, as a result of treatment at the hands of women in Hungary when he was a young man, a fear, almost a pathological fear of attacks, particularly at the hands of women.
He had, as it were, agreed to marry the deceased with a clear expectation, certainly based upon what he told the police, of support. Indeed, he went on to tell the police he was quite prepared, in essence, to deprive his earlier family, his sons, of what might otherwise be their inheritance and to, as it were, leave his estate to the deceased. Part of his, you might think, attempt to live up to his agreement. Part of his agreement was to support her and her daughter and indeed to compensate, as he indicates in his record of interview, those siblings who were left behind in Hungary. It is a indication, I suggest to you, that as his circumstances changed, as he continued to age, inevitably as one must do, as he ceased to work on a full-time basis and went on the pension, it is my suggestion to you that the arguments - and you will be satisfied from what you have been told by the witnesses and particularly the confidants, that there was a degree of ingratitude that crept into that relationship. Really, what was that relationship about? Was that a relationship of love or was that a relationship of expectation of financial support.
It seems he had to suffer, certainly, demeaning language on a not irregular basis, not only insofar as the deceased was concerned, but apparently her permitting or not attempting to curb the attitude of a young daughter. She is the one who, on the one hand, would tell you, you remember, that he threatened, at some stage, whenever that may have been, nonetheless he threatened to kill them. It must have had an incredible effect on her because it certainly didn't seem to worry her on the morning when she seemed to get stuck into him on the drug dog incident. You would have thought anyone would be inflamed if you were found spoken to in that fashion in your own house; a 70 year old man, when spoken to in that fashion, by nothing more than a child. Threatened, were they? Do you really accept that? If you had been threatened and if you had taken it seriously, you wouldn't be saying things like that to a man who you believed might be capable of doing you some harm, would you? You think about it. It actually doesn't ring true, does it? Where is the fear that one would expect to be shown of the accused, if a threat of that nature was made and was ever taken seriously? It is indicative of the fact, I suggest to you, that a threat was never made. Certainly, if any words even remotely like that were said, then they were never taken to have been said with any intent or any purpose.
There is a prior threat in particular with the knife. Once again, as I have already indicated to you, may be that was a figment of his imagination. But if it was, he must have believed it because he went and hid it. But the real probability is that the threat was made with that kitchen knife and that is why that kitchen knife ended up in the garage. He, of course, also had looming, at that point in time, perhaps it really emanated on his return from Hungary, where it seems that after a period of time changes would seem to have taken place. To turn up at the airport after roughly a ten week sojourn overseas, not to be met by anyone. To be left, as it were standing, in the cold, no doubt wondering what had happened. Even going to the extent, as he says, of putting himself in a position where a blind man, in essence, could see him, standing out like a sore thumb, just in case he hadn't been recognised from being lost in the crush of the crowd.
So concerned was this man that he reported his wife as a missing person. You would think that he was setting up something up or do you think he was genuine? You have heard from the young police officer who took the report from him; who described his appearance, that he was obviously concerned and believed something was wrong. Whether at that stage he believed she was dead, she had a car accident, who knows? But sufficiently concerned to actually go and report her as a missing person.
Of course, his suspicions in relation to his wife's infidelity, being told in terms of her wanting to take the car, it is absolutely - absolutely being my word, 'none of your business.' A man who is not treated with courtesy, who is not being told what is going on, who is being kept in the dark, who is, in effect, as he recorded in the diary, being treated like a dog. It is a lot of thanks, isn't it, for bringing somebody into this country, taking them under your roof, providing for them and their distant family, to be treated in this fashion. And, of course, we have that incident recorded in the diary. Just another little incident. Another drop in the ocean.
Then there is this resentment that you can see building, that is held behind his personality, that he is attempting to handle, to cope with in his own way. And the fact that he even gets a can of shaving cream thrown at him, it is a lovely thought, isn't it? You are in your own house and in just a few years you have gone from being your own master in control to, in essence, being the dogsbody around the house. He, of course, as we know, had his medical condition which was, no doubt, a problem to him. And then, to cap it all off, she wants to take the car to go and see her lover, as he believes that to be the case. If you have got any doubt, if he was wrong about that, she has the temerity, having been told she couldn't, having been physically stopped, locking the door to make sure she can't take the car, not setting out to physically restrain her but simply putting a barrier between her and the roadway, that was his act of attempting to stop something that he didn't believe was right, his thanks for that is he is attacked; his punishment for that, for having the temerity not to let her take the car to see her lover.
I think, ladies and gentlemen, it would be difficult to find much more provocation than that. This is a build up over the months. Certainly it would seem building up since his return from Hungary.
Now, he had been stunned, no doubt, you might think, that she wanted to take the car; not telling him why, but knowing deep in his heart why; but then to actually physically assault him, because he wouldn't let her do it. How much more provocation do you need, as it has been building, being contained, no longer a walk away situation. The problem, it seems, was not the problem any longer that his first wife suffered. Do you remember Margit Szabo telling you one of the problems she had with him was she couldn't have a real fight with him. I don't imagine you would think for a moment she was talking about a physical fight. Little doubt you would accept she was talking about a verbal altercation. Bring it out. Have a good full-on blew. Release the tension. That was apparently not his make-up. That was not the way he conducted his affairs.
So, slowly, I suggest ladies and gentlemen, is this build up over the years, particularly over the last few months, where he didn't get it out of his system - in this day and age we are told it is in fact healthy to do that; we are told it can relieve the tension. This is a man of a different culture and, in essence, from a different age and not his style. So, surely but slowly it has been building up and building until such time as the final act of provocation, which was the attack upon him, I suggest to you, from then on end has driven him over the edge. It is for the Crown to prove to you beyond reasonable doubt that he did not act under provocation, by the way."
31 The criticism advanced by the appellant proceeded by confining attention to the passages set out in paragraphs [16] and [17] above. Whatever force it has when put in that fashion is diminished when attention is given to the whole summing up, both in what it said expressly and in what it incorporated by reference to the evidence. The trial judge chose to give his directions in relation to the applicable law primarily at one place relatively early in the summing up, while leaving to later stages his directions in relation to matters of fact. Thus it was at a relatively early stage that the trial judge directed the jury in relation to the law on murder, self-defence, provocation, diminished responsibility and automatism. He chose not to relate each of the propositions of law he expounded to the particular facts in detail at that stage. However, by the end of the summing up, the trial judge had reminded the jury of the relevant evidence repeatedly. He did so in a general way at the outset. He also did so in a more particular way when he referred to the relationship evidence, in the course of which he spoke of assessing "the significance or importance to [the appellant] of any matter which came into dispute", of "understanding … the nature of any argument that morning, the effect upon the accused … of any matters which had led up to that event, the extent of their love or lack of affection for one another, and the extent to which either or both or neither had … accepted any possible separation" and of appreciating the accused's feelings, the depths to which his marriage had sunk, the seriousness of any quarrels with his wife, the period over which they had developed and the circumstances which led up to those quarrels. He then went into further detail in describing specific particulars of that evidence. Those details would have been fresh in the mind of the jurors because of the contents of the three recorded police interviews which each counsel in address had asked the jury to replay on retiring and which the judge several times referred to and several times suggested they should play on retiring. Finally, those details were narrated again while the trial judge summarised the defence submissions on provocation.
32 It cannot justly be said of the summing up, as the appellant's submissions would have it, that the directions did not adequately stress the ethnicity of the appellant, the significance of his personal relationships, the significance of his past history (including his personal experiences in Hungary involving physical abuse) and his dependence on the deceased for support in his old age. These matters all received ample attention, either explicitly or by cross-reference. The most that can justly be said is that these matters were not dealt with at the very moment the trial judge was explaining the law on provocation. But in that respect the trial judge was faced with an unavoidable dilemma. He could have referred to the relevant evidence as he expounded each integer of the law of provocation. Alternatively, he could have done what he did: expound the law in one place and make general and specific reference to the evidence in other places. If the former course had been adopted for provocation, as a matter of consistency, it would have been necessary to have adopted it in relation to the separate legal issues of murder, self-defence, diminished responsibility and automatism as well. That would have led to considerable repetitiveness. It would have disturbed the exemplary elegance and clarity which the summing up displayed in relation to the complex legal issues it had to deal with. It would have blown out the length of the summing up, with no necessary gain in intelligibility or fairness.
33 When the trial judge referred, in his account of the law of provocation, to the accused losing "his self-control", to conduct which "must have actually caused the accused to have lost his self-control", and to the accused "as you see him in his own natural personality and being … as he exists, with his temperament, his approach to life and his age and all his personal features, …", the jury was being invited to take into account the totality of the relevant evidence on those subjects. They had heard it; they had been reminded of it in general; they were about to be referred to particular aspects of it both in the trial judge's summary of it and in the trial judge's summary of the defence submission about it at the end of the summing up.
34 In my judgment the decision of the trial judge to adopt the course he did adopt did not render the summing up vulnerable to the first criticism to which it was exposed. The trial judge, by reminding the jury of the evidence generally, by explaining the law orally by reference to the "Summary", by giving more specific directions on the relationship evidence, by summarising the defence submissions on the defences (particularly provocation) and by permitting the jury to consider the facts in the light of the "Summary" left with them, adopted methods which were likely to cause the jury to consider the material facts in the light of the complex defences raised in an intelligible way.