R v Szabo

The appellant's criticisms of the provocation directions in relation to s 23(2) 10 Section 23 of the Crimes Act 1900 provides: " 23. (1) Where, on the trial of a person for murder, it appears that the act or omission causing death was an act done or omitted under provocation and, but for this subsection and the provocation, the jury would have found the accused guilty of murder, the jury shall acquit the accused of murder and find the accused guilty of manslaughter.

(2) For the purposes of subsection (1), an act or omission causing death is an act done or omitted under provocation where: (a) the act or omission is the result of a loss of self-control on the part of the accused that was induced by any conduct of the deceased (including grossly insulting words or gestures) towards or affecting the accused; and (b) that conduct of the deceased was such as could have induced an ordinary person in the position of the accused to have so far lost self-control as to have formed an intent to kill, or to inflict grievous bodily harm upon, the deceased, whether that conduct of the deceased occurred immediately before the act or omission causing death or at any previous time. (3) For the purpose of determining whether an act or omission causing death was an act done or omitted under provocation as provided by subsection (2), there is no rule of law that provocation is negatived if: (a) there was not a reasonable proportion between the act or omission causing death and the conduct of the deceased that induced the act or omission; (b) the act or omission causing death was not an act done or omitted suddenly; or (c) the act or omission causing death was an act done or omitted with any intent to take life or inflict grievous bodily harm. (4) Where, on the trial of a person for murder, there is any evidence that the act causing death was an act done or omitted under provocation as provided by subsection (2), the onus is on the prosecution to prove beyond reasonable doubt that the act or omission causing death was not an act done or omitted under provocation. (5) This section does not exclude or limit any defence to a charge of murder." 11 The appellant made two criticisms of the trial judge's summing up so far as the requirements of s 23(2) were concerned. His argument was structured around a passage from Masciantonio v R (1995) 183 CLR 58 at 67 which commenced by discussing the common law principles which in Victoria correspond with s 23(2)(a), and in particular the expression "conduct of the deceased … towards or affecting the accused". Brennan, Deane, Dawson and Gaudron JJ said: "However, the gravity of the conduct said to constitute the provocation must be assessed by reference to relevant characteristics of the accused. Conduct which might not be insulting or hurtful to one person might be extremely so to another because of that person's age, sex, race, ethnicity, physical features, personal attributes, personal relationships or past history. The provocation must be put into context and it is only by having regard to the attributes or characteristics of the accused that this can be done."

They then turned from the common law principles corresponding to s 23(2)(a) to those corresponding to s 23(2)(b) and said: "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." 12 The appellant also referred to Green v R (1997) 191 CLR 334 at 339-341 (which quoted Stingel v R (1990) 171 CLR 312 at 326-7), 353-355 and 366-371. The following words of Brennan CJ at 340 received some attention in argument: "Paragraph (b) requires the jury to take full account of the sting of the provocation actually experienced by the accused, but eliminates from the jury's consideration any extra-ordinary response by the accused to the provocation actually experienced. Thus extra-ordinary aggressiveness or extra-ordinary want of self-control on the part of an accused confer no protection against conviction for murder." 13 The first criticism which the appellant made of the summing up related to s 23(2)(a). The appellant submitted: "The learned trial judge's directions in relation to the 'gravity of the [deceased's] conduct' did not impress upon the jury key features of this appellant which were relevant, particularly his ethnicity and the significance of his personal relationships and his past history. …. The way in which his Honour dealt with the appellant's personal characteristics left the matter in an incomplete and unfair state. It certainly did not draw attention to the significance of the matters raised in the appellant's interview with the Police as to his relationship with the deceased, and his personal experiences in Hungary. … The appellant was 'old world' with significant history of physical abuse in his homeland and he was highly dependent upon the deceased to provide him with future support in his old age. His ethnicity was a significant feature threading through his attitudes and experiences." 14 The second criticism which the appellant made of the summing up related to s 23(2)(b), or, as the appellant sometimes put it, the "relationship" of paragraph (a) and paragraph (b) in s 23(2). The submission was that the trial judge had failed to explain that, in considering whether the provoking conduct of the deceased was such as could have induced an ordinary person in the position of the accused to have so far lost self-control as to have formed an intent to kill, the jury must take into account the accused with all his actual personal characteristics. The appellant said that the jury should have been told also to take into account in relation to s 23(2)(b) the gravity of the provocation which caused the accused to lose self-control. This criticism partly overlapped the first criticism in that, according to the argument, the trial judge should have stressed the appellant's relationship with the deceased, his personal experiences in Hungary and his ethnicity in relation to how an ordinary person having those characteristics could have behaved in the light of the gravity of the provocation which, ex hypothesi, caused the accused to lose self-control. As the appellant put it: "This was not explained either as to the subjective test [i.e. s 23(2)(a)] or the objective test [i.e. s 23(2)(b)] to be applied."

The summing up on provocation 15 The trial judge summed up the law to the jury by reference to a document entitled "Summary of Directions". The part which related to provocation occupied the bottom third of page 3 and the top two-thirds of page 4 and read materially as follows: "Before the accused can be convicted of murder , you must additionally be satisfied by the Crown, beyond reasonable doubt, that the act of his that brought about the death of Helga Szabo was NOT one done under provocation. In order to prove that the act of the accused was NOT one done under provocation, the Crown must show beyond reasonable doubt EITHER that: [a] Helga Szabo did not engage in conduct or utter words directed towards or affecting the accused, before the act bringing about her death, which were provocative; Proved Not Proved or [b] if Helga Szabo did engage in conduct or utter words directed towards or affecting the accused that were provocative, then the accused did not lose his self control because of such conduct or words; Proved Not Proved or [c] if the accused did lose his self control because of such conduct or words, then the act of his that brought about the death of Helga Szabo was not one that occurred while he was in loss of his self control; Proved Not Proved or [d] if the accused did the act bringing about the death of Helga Szabo while in loss of his self control because of the provocative conduct or words of Helga Szabo, then that conduct, or those words, were not such as could have caused an ordinary person in the position of the accused (ie a person who has the temperament and powers of self control within the limits of what is ordinary for a person of the age and maturity of the accused) to so far lose his self control as to form an intent to kill, or to cause grievous bodily harm to the person responsible for such conduct or words. Proved Not Proved ….". 16 The part of the trial judge's summing up of which the appellant complains is as follows. He began by saying: "Provocation in law consists of conduct or words on the part of the deceased directed towards or affecting the accused which caused a loss of self-control, on the part of the accused, which results in the act which brings about death. If, as a result of provocative conduct by the deceased, in this case Helga Szabo, the accused lost his self-control and killed her while lacking that self-control, then he is regarded as having acted in law under provocation and to be guilty of manslaughter rather than murder."

This passage is a summary of s 23(1) and (2)(a). The trial judge then said: "That is, so long as the conduct of the deceased was such as could have caused or induced an ordinary person in his position to have so far lost his self-control, as to have formed an intent to kill the deceased or inflict really serious bodily harm upon him."

This passage is a summary of s 23(2)(b). The trial judge then said: "Now, there are a number of elements in that and they are all spelt out on page 4 of the summary you have. So let us go to each of those."

Page 4 of the "Summary" contained questions [b]-[d]. The trial judge continued: "As I have pointed out, the Crown has to prove that the accused was not acting under provocation if it is to make out a case of murder. The Crown may do that in various ways. By disproving one or other of those elements that I just mentioned. We will do that, for example, by proving here that Helga Szabo did not engage in conduct or utter words, that is speak words, directed towards or affecting the accused before the act which brought about her death which were provocative."

He then said: "Now, I need to explain to you in that regard that although the words or conduct must occur before the act bringing about death, it is not essential, as a matter of law, that they occur immediately before the act causing death. They may have occurred over a period of time. They may be cumulative or act in combination with one or other to cause the accused to lose his self-control. Sometimes there are cases where there are a series of niggling events over a period of time which together build up and eventually cause a person to crack."

This was a reference to s 23(3)(b). He continued: "However, whatever be the case, you have to ask yourselves: Are you satisfied in relation to this matter that the conduct or words of the deceased were or were not provocative. If the Crown proves that the deceased did not engage in conduct or words directed towards or affecting the accused which were provocative, then it has removed provocation from this case. That is, it has proved that the accused was not acting under provocation. That is the first element."

This was a reference to the first limb of s 23(2)(a). The summing up proceeded: "The second element is that the conduct must have actually caused the accused to have lost his self-control and to have killed the deceased while in a state where he was deprived of that self-control. As you might expect, if the deceased didn't in fact lose his self-control, then that would necessarily be the end of provocation, because by definition the accused would not have been acting in a way that he did because of the conduct or words of the deceased. As you appreciate, again revenge or punishment for misconduct which are carried out, where a person is still in retention of his or herself control, involve very different considerations. They can't be said to be acts done under provocation. The next requirement, I have actually dealt with both B and C together in that paragraph - I think it is probably easier for you to understand them in that context - but …".

This was a reference to questions [b] and [c] of the "Summary". It completed his references to s 23(2)(a). Pausing there, the appellant's complaint was of a want of explanation by the trial judge about the particular characteristics of the deceased relevant to actual loss of self-control. 17 The summing up continued: "… the next requirement of the matter of provocation is an important one, because if the Crown proves that the conduct or words of the deceased are said to have been provocative and to have brought about the loss of self-control which was present when the act was done, which brought about death, were not such as could have caused an ordinary person in a position of the accused to so far lose his self-control as to form an intent to kill or to cause grievous bodily harm to the person responsible for such conduct or words, then the Crown again has removed provocation from the case. Let me go into that in a little more detail. Let me move back a step. When you are asking yourselves the question as to whether the conduct of the deceased in that case actually caused the accused to lose his self-control, then you are dealing with him as you see him in his own natural personality and being. In other words, you look to him as he exists, with his temperament, his approach to life and his age and all his personal features, to see whether in fact he was caused, by those provocative words, to lose his self-control. When you come to this third element, you are looking at a person who, by definition, is an ordinary person. That is, a person who has the temperament and the powers of self-control within the limits of what is ordinary for a person of the age and maturity of the accused. And the question you ask yourselves here is whether the words or conduct of the deceased were such as could have caused an ordinary person, in the position of the accused, that is a person who has the temperament and powers of self-control, within the limits of what is ordinary for a person of the age and maturity of the accused, to so far lose his self-control as to form an intent to kill or to cause grievous bodily harm to the person who offered those provocative words or conduct. You will appreciate that ordinary persons do come in all shapes and sizes. I emphasise we are dealing here, in this third element, with the ordinary person. That is, a person who is not exceptionally or abnormally sensitive to insult, or exceptionally or abnormally fearful. We are concerned with a person who is mentally sound and who has the temperament and powers of self-control within those limits I have mentioned, of an ordinary person of the age and maturity of the accused. The question here is whether the conduct was such as could have caused that ordinary person to lose his self-control so as to form that intent to kill or cause grievous bodily harm. You look, therefore, at the possible reaction of such a person. You do not look at the necessary or even inevitable reaction of that person. You look to see whether the words could have caused that person to lose his self-control, the way I have explained. So again, you are looking at this in the circumstances of the particular case and in the time and setting of any provocative conduct which is identified." 18 Soon after this a short adjournment was taken. The trial judge said that after it he would deal with diminished responsibility. In the absence of the jury, the trial judge then asked whether the directions had caused any problems. No redirection of the type which would have answered the complaints of the appellant on appeal was requested; the Crown Prosecutor asked for examples of what can and cannot be provocation to be given in relation to hearsay provocation and the defence counsel drew attention to a matter not affecting provocation. On resumption, the trial judge gave directions in accordance with these requests and turned to diminished responsibility. Nor was there later any request by the defence for a redirection on provocation, even though the summing up continued well into the following day and even though the trial judge requested counsel to bring any matters which they wished to to his attention at the end of the summing up. The trial judge made it plain to counsel before the summing up began that he was not going to reproduce counsel's addresses in their entirety. He also said that he was not going to read out "great slabs of transcript" and that if counsel thought the jury should be taken to any passages in full, counsel were invited to draw that to his attention at the end of the summing up. They did not.

The summing up on provocation: the s 23(2)(a) criticism 19 In my opinion the first complaint about the summing up is not valid. 20 The trial judge on numerous occasions pointed out that the s 23(2)(a) test called for a loss of self-control on the part of the accused (pages 21.2, 21.4, 22.6, 22.7, 23.2, 23.5-7, 93.7 and 93.9). The "Summary" in three places identified the need for the prosecution to show that the accused had not lost his self-control. Members of the jury must have asked themselves many times how it was that the elderly man accused before them - silent, but constantly visible - had come to kill his wife. They heard much evidence about him. 21 The trial judge frequently referred them to it. The trial judge reminded them of the evidence in a general way at the outset. He said he would not be reading it, but stated his confidence that they had listened carefully to it and could recall most of it. He said that if they wanted any of it re-read he would do so. He then proceeded to offer general advice on a number of matters before stating the law on murder, self-defence, provocation, diminished responsibility and automatism. In relation to each of those topics he did not go to specific evidence: his directions on provocation were no different from his other directions in this respect. He then turned to the evidence in the case, reminding the jury once again that if they wanted any part of the transcript of any witness's evidence read he would do it. 22 The first detailed exposition of the evidence given by the trial judge concerned the evidence given about the relationship of the appellant and the deceased. He said that that evidence: "… is available solely, and I emphasise solely, to understand the environment in which the accused and the deceased lived, to appreciate the nature of any differences between them, particularly any which had been building up over the last four months or so, and to assess the significance or importance to each or either of them of any matter which came into dispute over those closing days, and particularly on the Monday which might have been lingering over the preceding days. That may assist you in understanding or reaching a conclusion as to the nature of any argument that morning, the effect upon the accused or the deceased 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 for that matter accepted any possible separation. Were you not to have that material then you may have been placed in something of a vacuum concerning the feelings of each other by that, the depths to which their marriage had sunk, if it had sunk, the seriousness or otherwise of any differences or quarrels between them, the period over which any quarrels had developed and the circumstances which led up to those quarrels. So I repeat, then, that material is before you for that single purpose of setting the context" (pp. 37-38). 23 After an overnight adjournment, the trial judge made various specific points in discussing the relationship evidence. These were that the marriage was in difficulties; that the accused had gone to Hungary from May to July; that there had been arguments, swearing, abuse and some hitting and threats, and that the deceased had suffered bruises. He referred to the evidence of Mrs Cipov, the evidence of the appellant's former wife, and the evidence of his son to the effect that the accused was "an old-fashioned man with old-fashioned views", "a person who lived in his own little world and would not adopt a modern life", and "stoic, quiet, a disciplinarian and perfectionist" (pp. 53-55). Reference was made to the fact that the appellant was speaking in a foreign tongue at the time of the death and in a foreign accent after it. Reference was made to the deceased speaking in a foreign language at that time. 24 The trial judge then discussed the evidence of what happened on 16 September 1996. He discussed the evidence of nine neighbours. He discussed the evidence of the police officers and the doctor who saw the accused straight after the killing. He referred to the records of interview. He referred to various items of physical evidence in relation to the premises, items found on it, and the physical characteristics of the appellant and the deceased's corpse. He then summarised various things the appellant said to the police which were not recorded. He then referred to some parts of the records of interview, but repeated that he did not propose to read them. He did, however, say - and this his third reference to the playing of the videos in the summing up: "It is very important you play them in full so as to get the full version of the accused as to the historical setting or as to the relationship as to what he said occurred that day." He then referred to the evidence of other witnesses to whom the accused had spoken and given a version of events. 25 He then read some parts, and summarised other parts, of the histories given to two of the psychiatrists. He referred to evidence about the appellant's mental state after his departure to Hungary emanating from his first wife and his sons. He then summarised the evidence of the three psychiatrists. The concluding part of his summing up was directed to the addresses of counsel. 26 Before turning to what the trial judge said about the addresses of counsel, it is convenient to interpolate that in evaluating the summing up it is important to remember that the jury viewed the recordings of the appellant's three police interviews in open court on 20 and 21 July 1998 (the summing up being on 28 and 29 July) and that the jury were asked numerous times to view the recordings after they retired - by Crown counsel in address- ("as many times as you need to"), by defence counsel in address, and several times by the trial judge. The jury was also given transcripts of the recordings. These interviews revealed that he came to Australia in 1950 from Hungary via West Germany; that his wife spoke Slovakian to a friend which he did not understand; that when he went to Hungary on 9 May it was to see his 73 year old brother for the last time; and that when he returned on 28 or 29 July his wife did not pick him up at the airport and was not at home, so that he had to report her as a missing person. He also said that he married her so that "somebody would be able to look after me in my old age. I am a few months away from 70 of my birthday, and while I was overseas she changed, she changed everything. She must, she must had somebody in, in Canberra because constantly she was there" (5/190). He further said: "I must put it on the record, you know, that my life had been destroyed in one way, in, in, in my old country back in Hungary. The communist regime, you know, provided eight woman to, to attacking me, you know, and bringing me to court for things. I, I, I had nothing to do with them and in one occasions the Communist detective invited eight woman, you know, and they broke in, into the police department in there, you know, and they started hitting me, you know, eight woman. When I seen that the detective is not assisting me, you know, the woman can kill me, I went back into the corner and whenever somebody comes, you know, I, I fight at them back, and that made, can be that something in my mind, you know, that if I dreaming something in, in my life, you know, that I, I am about getting into fight with somebody, you know, I, I, I'm not waiting anything, you know, in me that I hit first, but my wife had nothing to do with me, you know, hitting me on the head starting a fight" (5/194-195).

He said: "I respect, always in my life, you know, I respect the authorities". He said (5/209): "You remember I mention it that the Communist womans in my blood, they put me in and they attack me and they … even at the deepest, soundest sleep when, when I dreaming, you know, that somebody I have to face and fight, you know, I hit immediately instead of waiting to be hit". 27 The trial judge stressed the following points as having been made by the Crown in address. It pointed to various circumstances tending to show the improbability of the view that the appellant's conduct was done by way of self-defence or under provocation. While these matters obviously militated against the appellant's interests, they naturally called to mind any possible more innocent explanation. After dealing with automatism, murder and self-defence, the trial judge summarised the Crown submission on provocation as follows (pages 93-94): "Going on to provocation, the Crown said that it didn't concede that there was any affair but even if there was one, then that was a matter for the family courts and the like and was not enough to cause the accused to lose his self-control and kill his wife or, indeed, to [cause] a reasonable person in his shoes to so far lose his self-control as to form an intent to kill or to cause grievous bodily harm. In essence, the Crown was saying that the various matters leading up to this day, for marital discord and arguments and so on, were not those which provoked the accused, or if they did provoke him and cause him to lose his temper, then they were not those that could cause a reasonable person, that is, a person of the ordinary temperament and control and so on, with a person of his age and maturity, to so far to lose his self-control as to form an intent to kill or cause grievous bodily harm. The Crown, of course, suggests that this fight did not begin with the accused striking the deceased with the brick, so that on the Crown case, that aspect of provocation just didn't exist in this case. Rather, the Crown said, the fight began with the punch to the nose. So on that basis, the Crown says you will be satisfied, beyond reasonable doubt, this was not an act done under provocation. Rather, that it was an act done in revenge, punishment and so on, but not as a result of a provocative conduct of the kind which would cause the act to be done under provocation at law."

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.

The summing up on provocation: s 23(2)(b) criticism 35 The second complaint about the summing up is also not valid. The trial judge on numerous occasions pointed out that s 23(2)(b) called for them to consider the reaction of an ordinary or reasonable man with the characteristics or in the position of the accused. The question of what the characteristics of the accused were was adequately brought to the attention of the jury by the means discussed in relation to the first criticism put by the appellant, and so far as this second criticism overlaps with the first criticism it must be rejected for the same reasons. 36 This second criticism of the appellant, however, has a further dimension. It became sharply defined in the address on behalf of the appellant in reply. That address focused on the words quoted in paragraph [17] above in relation to s 23(2)(b): "And the question you ask yourselves here is whether the words or conduct of the deceased were such as could have caused an ordinary person, in the position of the accused, that is a person who has the temperament and powers of self-control, within the limits of what is ordinary for a person of the age and maturity of the accused, to so far lose his self-control as to form an intent to kill or to cause grievous bodily harm to the person who offered those provocative words or conduct."

The appellant's submission in reply concentrated on this sentence because Crown counsel had submitted that the words "in the position of the accused" picked up the particular characteristics of the appellant. Crown counsel said that the "clue is given by the use of" those words. Counsel for the appellant responded: "As a matter of importance in the conduct of criminal trials juries are to be given and should be given clear and unambiguous directions on matters of law. The jury should not be left to divine clues from particular words used by the judge to understand what the law requires them to do."

Counsel for the appellant submitted that in the sentence quoted above, after "the deceased" the trial judge should have inserted the words "having regard to their gravity as they affect the accused". He concluded: "Those words make clear what the jury has to consider arising out of sub-paragraph (a) and his Honour did not do that. My friend used the words 'the clue' there. Well, with the jury sitting in the jury box and having listened to a lengthy and detailed summing-up, consideration of the proper principles of law to apply should not depend upon divining a clue from three or four words uttered by the judge." 37 It is questionable whether, if what the trial judge did say was inadequate, the jury would have been better off by the addition of the further ten words suggested by the appellant into a sentence which was already, and necessarily, complex. However, the question is whether the proposition conveyed by the suggested words was not in fact conveyed by the trial judge by the words he did use. 38 Again the summing up as a whole must be considered.

(a) The trial judge told the jury that the conduct of the deceased had to be "such as could have caused or induced an ordinary person in his position to have so far lost his self-control, as to have formed an intent to kill the deceased or to inflict really serious bodily harm upon him" (bold emphasis added). An element which might have caused an ordinary person in the "position" of the accused to lose self-control is the gravity of the words as they affected the accused, and their effect on the accused can only be assessed in the light of his personal characteristics.

(b) Further, the trial judge told the jury that the Crown had removed provocation from the case if the Crown proved that the allegedly provocative items of conduct "were not such as could have caused an ordinary person in a position of the accused " to lose self-control in the manner described in s 23(2)(b) (bold emphasis added). The expression "position of the accused" necessarily refers to the gravity of the items of conduct as they affected him, and their effect on the accused can only be assessed in the light of his personal characteristics.

(c) The trial judge told the jury that the question was "whether the words or conduct of the deceased were such as could have caused an ordinary person, in the position of the accused " to lose self-control in the manner described in s 23(2)(b) (bold emphasis added). Again, the expression "position of the accused" necessarily refers to the gravity of the items of conduct as they affected him, and their effect on the accused can only be assessed in the light of his personal characteristics.

(d) The trial judge also said, in summarising the Crown argument on provocation near the end of his summing up, that if the deceased was having an affair, that "was not enough to cause the accused to lose his self-control and kill his wife, or, indeed to call [cause] a reasonable person in his shoes to … lose his self-control" in the manner described in s 23(2)(b) (bold emphasis added). An examination of a reasonable person in the shoes of the accused would include a consideration of the gravity of the conduct as it affected the accused, and their effect on the accused can only be assessed in the light of his personal characteristics. (i) That passage late in the summing up, uttered in the early afternoon of 29 July 1998, would have caused the jury to call to mind the following passage in the Crown Prosecutor's address which they heard shortly before the luncheon adjournment on 27 July 1998: "The Crown doesn't concede that there was an affair between Mrs Szabo and any person, but even if there was an affair between Mrs Szabo and some other person … , then what was it about that that could have provoked this accused to have so far lost control of his actions through anger, words directed at him or actions directed at him, so as to commit the crime of murder? Because it has got to be the crime of murder first, then reduced by provocation, and the Crown says that there is nothing in the evidence that could possibly cause, firstly, the Crown says, him to have lost his self-control in that way or, secondly, for it to be considered that a reasonable person in the place of the accused could have lost his self-control in that fashion."

That passage, in relation to the actual accused, links the "words directed at him or actions directed at him" as a cause of loss of "control of his actions through anger" with the issue of whether "a reasonable person in the place of the accused could have lost his self-control in that fashion."

(ii) Similarly, the trial judge's reference on 29 July to the Crown argument, would be likely to have brought to the minds of the jury the statements of defence counsel during his argument on 28 July which are quoted at paragraph [30] above. For present purposes some key passages are as follows (emphasis added): "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 …

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. …

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. …

I think, ladies and gentlemen, it would be difficult to find much more provocation than that. …

How much more provocation do you need, as it has been building, being contained, no longer a walk away situation." The invitation, by the repeated use of "you" and "your", and in other ways, to the jury to put themselves in the accused's position, involved a suggestion that the gravity of the provocation, in its impact on reasonable persons such as the jurors, had to be assessed by reference to the personal characteristics of the appellant which counsel was describing in considerable detail. Similarly, the contentions that this was either the most extreme case of provocation imaginable or something approaching it, taken with the trial judge's general directions on s 23(2)(b), would have suggested that the gravity of the provocation would not only have caused a person with the personal characteristics of the appellant to lose self-control, but it would also have caused any person, including any ordinary person, with the personal characteristics of the appellant to lose self-control. (e) Finally, and most importantly, the terms of the "Summary" must be remembered. Its terms are important because the trial judge frequently spoke to it and left it with the jury. It is to be presumed that they worked through it and paid careful regard to its language. Question [d] was: "if the accused did the act bringing about the death of Helga Szabo while in loss of his self-control because of the provocative conduct or words of Helga Szabo, then that conduct, or those words, were not such as could have caused an ordinary person in the position of the accused … to so far lose his self control [in the manner described in s 23(2)(b)]" (bold emphasis added). Again, the expression "position of the accused" refers to the gravity of the items of conduct as they affected him in the light of his personal characteristics. 39 The "Summary" also illustrates a point which is true of the references to s 23(2)(b) in the summing up itself, but highlights it more starkly. Question [d] is preceded by questions [a] - [c]: see paragraph [15] above. Question [a] concentrates on the existence of "conduct … or words directed towards or affecting the accused … which were provocative" (bold emphasis added). Question [b] assumes the existence of conduct or words directed towards or affecting the accused which were provocative, and concentrates on whether "the accused did not lose his self control because of such conduct or words" (bold emphasis added). Question [c] assumes that the accused did so lose his self-control, and concentrates on whether "the act of his that brought about the death of Helga Szabo was not one that occurred while he was in loss of his self control" (bold emphasis added). As the jury worked through questions [a] - [c], they must have been concentrating on the particular behaviour of the deceased and its actual impact - its gravity or otherwise - on the accused. When they turned to question [d], having performed those inquiries, they must have read "the position of the accused" as requiring them to bear in mind the gravity of the conduct as it affected the accused in the light of his personal characteristics in assessing what that conduct could have caused an ordinary person in the position of the accused to do. 40 However, there is a competing possibility to be dealt with in relation to question [d] in the "Summary". That possibility is that the expression in question [d] "in the position of the accused" is explained by the words which follow in parenthesis, being words which do not import any consideration of an assessment of the gravity of the provocation by reference to its significance to the appellant. If this competing possibility is a sound reading, the words in parenthesis "(i.e. a person who has the temperament and powers of self control within the limits of what is ordinary for a person of the age and maturity of the accused)" would not qualify the words "an ordinary person", but would qualify the words "the accused". If this were a sound reading, then the "Summary" would not have assisted the jury to grasp the s 23(2)(b) element of provocation and indeed might mislead them into concentrating mainly or solely on the ordinary person without considering the gravity of the provocation by reference to the appellant's personal characteristics. This point was not advanced in these terms by the appellant on the appeal, but it must be dealt with. In my judgment the suggested reading is not a sound reading. The words in parenthesis include a reference to "what is ordinary" for a person of the accused's age and maturity: that is a reference back to the ordinary person, not to specific features of the accused. The specific features of the accused, and the assessment of the gravity of the provocation on the ordinary person by reference to the accused's personal characteristics, were brought into play by the reference to the position of the accused. 41 There are three further matters relevant to an assessment of the appellant's second criticism. The first is that defence counsel who appeared at the trial was of very considerable experience in criminal cases. As already noted, despite opportunities to do so, he did not seek any redirection on provocation which would meet the criticism now made, though the Crown did seek a redirection on a different aspect of provocation. Though this circumstance in itself could not constitute a preclusion of the appellant from making any otherwise valid criticism of the summing up in relation to provocation, it does support the view that at the trial there was not felt to be any problem with the summing up in this respect and that in truth there was no such problem. 42 The second matter to be borne in mind arises out the way in which the appellant's arguments were presented. The original written submissions of counsel for the appellant approached the identification of the supposed defect by reference to the passage from Masciantonio v R set out in paragraph [11] above. In further written submissions, the matter was approached by reference to Masciantonio v R, Stingel v R and Green v R. In oral argument, the matter was approached by reading quite lengthy passages from Masciantonio v R and Green v R, including passages quoted in the latter case from Stingel v R, before the argument turned to analysis of the second criticism. The fact that the contention that there was a radical deficiency in the summing up called for such elaborate approach work raises a real question of whether there was in truth any such deficiency. If a "deficiency" takes a long time to expose and can only be exposed by reading numerous partially conflicting judgments in three different High Court cases, the force of the suggestion that it is a deficiency is weakened. The form in which appellate courts state their reasoning in analysing rules of law - here rules of law found in quite brief statutory provisions - is not necessarily appropriate for adoption and incorporation in jury directions. The trial judge's directions to the jury followed the statutory language and, taken as a whole, those directions explained it accurately. No vice in them can be found in not incorporating the juristic analysis of other judges expounded to a different audience for a different purpose. Nor can any fair criticism be based on the fact that particular passages taken in isolation did not state the totality of the statutory meaning, when all the material passages read as a whole did. 43 The third matter concerns the question of what exactly the trial judge should have done. Defence counsel at the trial having made no suggestion that the trial judge should do anything different from what he did do, counsel for the appellant on the appeal propounded only general criticisms in the written submissions and the oral argument in chief. In the oral argument in reply an explicit suggestion was made that the trial judge should have added the words "Having regard to their gravity as they affect the accused": see paragraph [36] above. The smallness of this change raises doubt about whether it was really necessary. Is a lengthy summing up in a difficult case which is in every other respect impeccable fairly open to criticism by reason of so small an omission? Once the first criticism in relation to provocation, and so much of the second criticism as overlaps with it, are accepted as failing, it must be accepted that there was sufficient explanation of the need for the jury to assess the gravity of the provocation by reference to the personal characteristics of the accused. The second criticism then reduces itself to a complaint of a somewhat formal and artificial character. If the second criticism could have been overcome so simply and briefly, analysis of the validity of that criticism must focus on whether the problem was not in truth overcome in some other way in the quite substantial passages devoted to provocation. In my judgment it was, because on almost every occasion when the objective test in s 23(2)(b) was mentioned, the jury were told to consider the reaction of an ordinary person in the position of the accused, and the central inquiry about the position of the accused would inevitably have turned on the gravity of the allegedly provoking conduct of the deceased as it affected the accused in the light of his personal characteristics. 44 The appellant also submitted as part of the second criticism that the trial judge erred in expressing the tests stated in s 23(2)(a) and (b) as two tests without explaining the relationship between them. So far as he did divide up the issues for consideration, he proceeded in a manner likely to be of positive assistance to the jury. But in doing that he did not use language capable of causing them to fail to appreciate the relationship between the two paragraphs. 45 There is no doubt that the intellectual process which s 23(2)(b) calls for is a complex one. In my opinion the trial judge explained that process adequately to the jury, and the second criticism propounded of the summing up fails.

The appellant's criticisms of the provocation directions in relation to s 23(3)(a) and (c) 46 The appellant's submission was as follows: "… his Honour failed to direct the jury that the provocation claimed was not negatived by the fact that the act was not 'reasonably proportional to the conduct of the deceased that could induce the acts' causing the death of the deceased. Nor did his Honour direct the jury that the acts of the appellant if done with an intention to kill or an intent to inflict grievous bodily harm did not negative provocation (s 23(3)(a)(c) Crimes Act ). These were important directions in this matter particularly having regard to the character of the attack upon the deceased and the nature of the provocation claimed by the appellant. The directions left the issue of 'proportionality' unaddressed in circumstances where it clearly would be of concern to a jury. In fact the issue, if anything may have been interpreted by the jury as requiring 'proportionality' to be considered in determining whether relevant conduct could induce 'an ordinary person' to relevantly lose self control." 47 The directions which the appellant contends should have been given were not requested by his counsel at the trial. 48 The duty of the trial judge was to direct the jury on the applicable principles of law. Unless the circumstances of the case made it necessary, he had no duty to direct them about what was not the law. The Crown did not suggest, contrary to s 23(3)(a), that provocation was negatived by any lack of reasonable proportionality between the accused's conduct and the deceased's conduct. The trial judge repeatedly directed the jury that the s 23(2)(b) issue was whether the ordinary person would have lost self-control in the manner described in that paragraph; if so, it would not matter how much greater the accused's reaction might have been compared to that of the ordinary person, and the trial judge did not suggest that it would matter. 49 The Crown did not make any submission to the contrary of s 23(3)(c). Hence the s 23(3)(c) direction, to which no oral argument was directed, was not called for.

Miscarriage of justice: was it open to the jury to be satisfied beyond reasonable doubt that the Crown had excluded provocation? 50 The appellant submitted that on examination of the whole of the evidence, it was not reasonably open to the jury to be satisfied beyond reasonable doubt of the guilt of the appellant on the charge of murder: M v R (1994) 181 CLR 487 at 493-494; Jones v R (1997) 191 CLR 440 at 450-453. This submission, so far as provocation is concerned, calls for consideration of whether it was reasonably open to reject the contentions of the appellant in that regard. It was submitted that the Court of Criminal Appeal should entertain a doubt as to whether the prosecution had adequately established beyond reasonable doubt that the appellant had not acted under provocation. The following aspects of the evidence were pointed to. The appellant at the time of the killing was nearly 70 years of age and of frail health. He was of Hungarian origin with "old world views". He had been married to the deceased for eight years, he was dependent upon her, and he had an expectation, given the circumstances of the marriage, that she would care for him in his old age. He had been the subject of threats and insults. He believed on reasonable grounds that she had been involved in an affair with another person behind his back. He had been let down or neglected by the deceased over a period of time immediately before the killing. The deceased had indicated a desire to sell the family home and possibly divorce the appellant contrary to his wishes. The deceased promoted verbal disputes with the appellant on the day before her death, causing the appellant to leave home, and had also promoted verbal disputes with the appellant on the day of her death. There was evidence that the appellant believed that the deceased had wished to travel out of Sydney on the day of her death to continue her affair. The deceased had struck a blow or blows to the head of the appellant. It was submitted that the Crown evidence from members of the deceased's family suggesting that the appellant had been violent towards her was weak and contradicted by less biased sources. It was submitted that at its highest that evidence was concerned with remote incidents of a relatively minor nature, particularly having regard to the circumstances of the fatal assault upon the deceased. Persons who knew both the appellant and the deceased gave evidence to contradict the view that the appellant was argumentative with the deceased or was disposed to resort to force against her. It was submitted that the evidence strongly supported the view that the appellant lost control by reason of the specific events of the day, which, in the context of the background evidence and the appellant's characteristics, pointed to provocation. Anger, translated into extreme violence, was entirely uncharacteristic of the appellant. Hence provocation could not be excluded beyond reasonable doubt, and the jury's conclusion to the contrary was perverse and unreasonable. It was also submitted that use of a brick as weapon showed that the killing was without premeditation or planning. These arguments were similar to some of those summarised by the trial judge in the passage quoted at paragraph [28] above. 51 At the trial the appellant contended that the deceased had been the aggressor in the acts of violence which occurred and led to the death of the deceased. There was material before the jury in which the appellant asserted that the deceased began the violence by hitting him on the head with a brick while he was still in bed, and thereafter persistently attacked him by the use of violence including kicking (three times in the groin), punching and biting. The appellant, in his records of interview and statements to psychiatrists, pictured himself as being largely on the defensive to the point where he believed that he was going to have the worse of the fight. 52 One difficulty in these contentions is that they were contradicted by other material emanating from the appellant to suggest, not that he had been lying on the bed when he was first attacked, but that he had been making it. Another difficulty was that he was taller and heavier than the deceased. A further difficulty was the disparity between the deceased's very severe injuries and the appellant's relatively superficial injuries, which suggested improbability in the appellant's claim of being on the receiving end of aggression from the deceased. There were aspects of the appellant's story which he repeated to some witnesses but not to Dr Anderson, who said that the accused had not mentioned being hit on the head with a brick or being kicked in the groin. The evidence of the neighbours Tracey Moore, Angela Griffith and Kathleen Ann Henley of female screaming and moaning suggested that the deceased was fearful and on the defensive, not the appellant. Some of what the appellant said in his records of interview pointed to the conclusion that just before the deceased was struck with the final blow from the brick, she was helpless, promising to stay with him and in effect pleading for her life. That could support a conclusion that any provocative conduct had ceased to influence the appellant. 53 These factors point to the conclusion that it was well open to the jury to reject the appellant's account of what happened in the period leading up to the death, and thus to reject his account of having been provoked by a physical attack. So far as material emanating from the deceased supported the argument based on provocation by the deceased's conduct apart from any physical attack, it was in consequence open to the jury not to believe it. Thus the jury were entitled to conclude that there was no provocation, or that it did not cause the accused to lose his self-control, or that his attacks on the deceased which caused her death did not occur while he had lost self-control. The appellant's submission was that it was not open to the jury to conclude that provocation was negatived, because there was no explanation for the appellant's conduct except provocation. In my opinion it was open to them to have done so.

Miscarriage of justice: was it open to the jury to convict in relation to diminished responsibility? 54 The appellant submitted that on examination of the whole of the evidence at the trial it was not reasonably open to the jury to be satisfied beyond reasonable doubt of the guilt of the appellant because having regard to the evidence as to the background and presentation of the appellant at the time of the deceased's death and the medical evidence as to his mental state, he had, on the balance of probabilities, established that he was suffering from an abnormality of mind that substantially impaired his mental responsibility for the acts causing the death of the deceased: Crimes Act 1900, s 23A. The precise issue raised by this argument was whether it was open to the jury to decline to be satisfied on the balance of probabilities that diminished responsibility had been established. 55 The appellant submitted that on the evidence of the appellant's conduct prior to the killing, his conduct during the investigation, and observations made of him immediately afterwards, taken with the medical evidence advanced in his case, supported the conclusion that his conduct had been induced by an abnormality of mind which had substantially impaired his mental responsibility. It was submitted in relation to the contrary view of Dr Skinner that nothing in her examination revealed any understanding or information about the appellant from persons who had some knowledge of his background and his manner and presentation prior to the killing of the deceased. It was submitted: "Importantly, … significant matters in the evidence of the Crown's witnesses (such as delusional beliefs and 'telescoping' of events) that reflected either evidence of memory loss or thought disorder were either not available to Dr Skinner as history or alternatively, were ignored or down played by her in the assessment of the mental state of the appellant."

It was submitted that the appellant had acted so uncharacteristically that his conduct must have been induced by a state of mind which substantially reduced his mental responsibility. Finally, it was submitted that this was supported by his distress and expressions of contrition, rather than anger or self-justification, within minutes of the killing, and that there was no evidence of premeditation or planning. 56 The medical evidence advanced in the appellant's case was that of Dr Jurek and Dr Robertson. Dr Jurek was of the view that the appellant had dementia to a degree that was beyond the normal ageing process. She thought that because of the appellant's cardiovascular problems, cerebral perfusion would have been induced by the stress of the struggle between the appellant and the deceased. She considered that, under the stress of the struggle, the appellant would have gone into a disassociated state, in which he would not have known what he was doing, but would have just kept lashing out. She considered that the appellant had been in a state of automatism. She did agree that brain scans of the appellant had not indicated the presence of dementia or any serious head injury. 57 While Dr Robertson thought the appellant had brain damage and thought disorder in the form of perseverating and considered that the appellant would have become hypoxic during the struggle, which would have very significantly impaired his judgment and his ability to control his behaviour, he did not think the appellant had dementia and he rejected the possibility of automatism. 58 Dr Skinner said that the appellant showed no abnormality of mind. She found no evidence of dementia or thought disorder. She said psychological testing had shown no significant abnormality of brain function and no evidence of brain damage. In relation to the suggestion by Dr Jurek and Dr Robertson of hypoxia, Dr Skinner said that persons affected by hypoxia usually act in a purposeless and confused way with an unawareness of their surroundings. She regarded the appellant's statements to police and actions in the company of the police while being interviewed walking around the house as inconsistent with hypoxia. She disagreed with Dr Robertson's view that the accused had been suffering thought disorder in the form of perseverating. She said the appellant showed no mental impairment or mental illness. 59 It was open to the jury to conclude that the appellant had failed to discharge the burden of proof which lay on him of establishing diminished responsibility. His two witnesses to a significant extent contradicted each other on the questions of automatism and dementia. So far as their opinions depended on what the appellant had told them, they were liable to be affected by adverse views open to the jury about the credibility of the appellant's hearsay statements. To the extent that Dr Skinner rested her opinions not on what the appellant told her but rather on her own observations and on objective testing, it was open to the jury to treat her opinions as more soundly based. The criticisms of Dr Skinner which the appellant made on the appeal were not put to Dr Skinner in cross-examination in such a way as to cause her to modify her opinions.

Miscarriage of justice: irregularities in the conduct of the trial 60 It was submitted by the appellant that there were irregularities in the conduct of the trial which caused a miscarriage of justice: M v R (1994) 181 CLR 487 at 492-493; Gipp v R (1998) 194 CLR 106 at 114. 61 This submission raises an inquiry into whether there was some defect in the summing up or some feature of the case raising a substantial possibility that, either in the conclusion which the jury reached or in the manner in which it was reached, the jury might have been mistaken or misled. 62 The first contention was that the trial judge's directions on provocation, even if not technically misdirections, were incomplete and misleading. This submission did not point to any submission beyond those advanced in relation to the first ground of appeal, which have been rejected. They must also be rejected in relation to the second ground of appeal. 63 Secondly, the trial judge was criticised for failing to direct the jury in relation to the appellant's good character. The trial judge asked the appellant's counsel whether he wanted a good character direction. Counsel, after referring to a shoplifting charge in relation to which the appellant received the benefit of s 556A of the Crimes Act 1900, indicated that he had decided not to ask for a character direction and that he did not do so. The trial judge said to the Crown: "If there is evidence there of good character then I have got to give the direction, but at the moment I don't see it". The Crown did not suggest there was evidence of good character and did not ask for a character direction. 64 The appellant submitted: "In reality there was a body of evidence in the trial of good character. There was evidence of his generosity to his fellow countrymen, his relationship with his children, his generosity to the deceased and her family, his non violent temperament (on one view of the evidence), his unwillingness to be involved in arguments, his industry and hard work throughout his life, his affection for the deceased and his remorse for the killing of the deceased amongst other matters. He was described as 'shy' and 'retiring'. … In this matter the jury had the benefit of a direction that the evidence of the appellant's conduct towards the deceased, in a sense evidence of 'bad character', although not available to establish that he was likely to have murdered the deceased, was available for the purpose of explaining the relationship between the appellant and the deceased, so as to put the allegations in context (eg: SU18.2). The jury had no directions whatsoever as to the relevance of evidence to the contrary as it may explain the conduct of the appellant in circumstances where the jury was considering the issue of provocation and the defence of diminished responsibility or even self defence. … the appellant was entitled to an appropriate direction on character to provide a balance to the Crown's case." 65 The items of "good character" suggested were not put to the trial judge apart from the appellant having assisted members of his community. Contrary to what the trial judge suggested, it is not obligatory on a trial judge to give a character direction in every case: Simic v R (1980) 144 CLR 319 at 333-4; Melbourne v R (1999) 164 ALR 465 at 471-478, 484 and 505-506. If a character direction is requested, it is generally wise to give it; but here it was not requested. The appellant submitted that it was appropriate to give it because of the relationship evidence. However, the trial judge did explain the limited use to which the relationship evidence could be put and told the jury that they were not to "infer or reason from that evidence that [the appellant] was a person who was likely to have killed [the deceased]". Since the appellant did not testify, evidence of good character was irrelevant to the credibility of sworn testimony. Its relevance to the issue, if any, was to show him to be a person who was not likely to have killed the deceased unless he was acting under provocation, acting in self-defence, acting under the influence of automatism, or acting with diminished responsibility. The direction against using the relationship evidence on that issue meant that the case was not one in which it was appropriate for the trial judge to give a good character direction. The authorities on which the appellant relied, R v BRS (1991) 148 ALR 101 and R v D (1996) 86 A Crim R 41, have no application to the present circumstances. 66 The third criticism which the appellant advanced was as follows: "Another aspect of the conduct of the trial which had the potential to mislead the jury was the introduction of 'reckless indifference' as a basis for finding the appellant guilty of murder. It should not be left in an inappropriate case ( La Fontaine v The Queen (1976) 136 CLR 62 at 69). His Honour was concerned about whether it was appropriate … The Crown called it 'the very fall back situation' … Counsel for the appellant acquiesced quite unnecessarily. The introduction of this 'head' of murder raised a particular complication given the terms of s 23(2)(b) Crimes Act in respect of provocation. This was clearly an intent case. The appellant's violence was directed at the deceased. It is wrong in principle for the Crown to alternatively plead in inappropriate circumstances." 67 The matters of fact relevant to provocation would have been the same even if the question of reckless indifference had not been left to the jury. Hence no additional complication was created in relation to s 23(2)(b), and the trial judge's decision to leave reckless indifference to the jury did not cause anything to take place which had the potential to mislead the jury in that or any other respect.

68 I propose that the appeal be dismissed. 69 JAMES J: I agree with the judgment of Heydon JA. 70 BELL J: I agree with the reasons of Heydon JA. **********

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