R v Thorpe [1998] VSCA 13

(2) on the charge of murder, the trial judge erred in his directions to the jury concerning self-defence;

(3) the judge erred in his directions to the jury concerning circumstantial evidence.

16. The Crown case relating to these offences was as follows. The applicant, who had a history of epilepsy and was taking Dilantin to control major epileptic seizures, lived at 14 Kookaburra Court, Norlane, sharing the house with one Gary Stewart. The applicant was a heavy drinker who had developed pancreatitis, which caused him to suffer a mild form of diabetes controlled by taking Diamicron tablets.

19. Robert Terek (the brother of Drago Terek Henry) gave evidence of an occasion before Christmas 1996 when he travelled to Kookaburra Court to get some cigarettes. Terek said that he took with him a piece of timber (which became Exhibit D in the trial) as protection, saying that the area was a crazy one. He also said that Gary Stewart and the deceased (Charles Peter Carleton, known as "Irish") were at home when he arrived. Terek said that the only weapons he saw in the house were a steel bar in a corner of a bedroom and a knife kept under the bed. When he left the premises on that occasion he left behind the piece of timber he had brought. Drago Henry later gave evidence of the visit to the house before Christmas 1996 by his brother and identified the piece of timber said to have been left by his brother.

22. Adam Wayne Gleeson gave evidence that in the first week of February 1997 the applicant gave Gleeson a pornographic video to keep. Gleeson said he recognised the videotape as coming from Drago Henry's videotape collection and that he returned it to Henry.

25. Drago Henry said in evidence that on 10 February 1997 he walked to 14 Kookaburra Court and spent the afternoon drinking with the deceased, after which he spent the night there. On Tuesday 11 February, he woke there and he and his companions continued drinking.

28. At 10.05 a.m. on 11 February, Stewart, Henry and the deceased came to the home of Sharon McEwen in Robin Avenue, Norlane, and McEwen lent the deceased some money. The deceased and Henry left the premises and returned with two wine casks and a packet of cigarettes. They stayed and had some drinks. Later that morning, Robert Jazbinsek came to McEwen's home and drank with those present.

31. Adam Wayne Gleeson said that at about 11 a.m. he called in at McEwen's home, where he found McEwen, Steven O'Donovan (the boyfriend of McEwen), the deceased, Henry and Stewart all present and drinking. At about 1 p.m. Gleeson and his girlfriend, Jacqueline Lisa Keppell, walked to the South Corio Primary School, where they picked up Keppell's young daughter. When walking back home, they saw the applicant, Thorpe, at the corner of Robin Avenue and Cox Road, Norlane. The applicant and Gleeson then went to Sharon McEwen's home in Robin Avenue. Upon arriving there the applicant and Gleeson sat down and began drinking with O'Donovan, McEwen, the deceased, Stewart and Henry. Gleeson said a heated conversation began between Henry and the applicant concerning the pornographic videotape, over which both claimed ownership.

34. Henry, the deceased and Jazbinsek went back to 14 Kookaburra Court and the deceased, as they were leaving, asked Stewart, within the applicant's hearing, if he could have the keys to the house. Stewart gave his keys to the deceased, who then said to Henry, "Grab the box, Drago, and let's get out of here". They went back to 14 Kookaburra Court, where the deceased went to sleep on a couch. Jazbinsek and Henry continued to drink from the cask and heated some left-over food.

37. Gleeson said that he and the applicant remained at McEwen's home until about 5 p.m., and when they left both were quite tipsy. Gleeson and the applicant walked back to Keppell's home, and arrived there between 6 and 6.30 p.m., by which time both were under the influence of alcohol. They stayed for about half-an-hour while Gleeson ate dinner and the applicant ate a sandwich. They then walked back to McEwen's home.

40. Gleeson said that he and the applicant joined O'Donovan, McEwen and Stewart at McEwen's home. They sat down and continued drinking. At around 7 p.m. Gleeson, the applicant and Stewart went to 14 Kookaburra Court, where they sat down and continued drinking with Henry and the deceased.

43. Henry and Gleeson said that the dispute between the applicant and Henry over the ownership of the videotape was resumed, and became even more heated. There was an issue as to whether the disagreement involved simply the applicant and Henry, or whether it included Stewart and Gleeson as well. However, the disagreement ended with the applicant picking up the video-cassette and shattering it across his knee, letting the fragments drop to the ground, by which time his demeanour was described by Henry as being very aggressive and "in a frenzy". Henry then said that the applicant walked to a spot behind him where the piece of timber (Exhibit D) still was, picked it up and struck him (Henry) a heavy blow to the top of his head from behind. As he stood up he felt a second heavy blow to the back of his head near the right ear. He shouted to the deceased for help and the deceased said a few words to the applicant, who then went back to the couch and sat down holding the piece of timber. Henry was bleeding profusely and went to the bathroom to get a towel. The deceased telephoned for an ambulance, and Henry said that some 15 minutes later he left the house. At this stage, the applicant seemed composed but was talking loudly.

46. Henry went next door to 13 Kookaburra Court to seek help from the neighbours, Mr and Mrs George Patrick Walsh. Henry told them that the ambulance was taking too long and that he was bleeding to death.

49. George Walsh gave evidence that at about 8.15 p.m., Henry and the deceased came to his front door, and the deceased asked Walsh to telephone for an ambulance for Henry, who was bleeding badly from the head. Walsh said that the deceased's demeanour was agitated and affected by alcohol, and that Henry was holding his hands to his bleeding head. Henry refused to come into their house, saying that he did not want to get blood all over the place. Mr Walsh sat Henry down in the driveway on a chair and got a towel for him.

52. Henry's evidence continued that the deceased came out some ten minutes later. Henry said that the deceased came over to Henry and asked him how he was going, to which he replied, "Bloody well no good". Henry said the deceased was very upset at the sight of his condition and turned round to go back to 14 Kookaburra Court and said, "I'll fix that black bastard". The deceased then went back into the house at 14 Kookaburra Court, which was the last time anyone saw him alive.

55. Henry said that some time after the deceased went back to 14 Kookaburra Court, he asked Walsh if he could use the toilet in the back yard. As he was doing so, he heard loud thumps coming from inside 14 Kookaburra Court, the thumping lasting for three minutes or a little longer. Henry said that everything then went very quiet and he did not hear any voices.

58. Soon afterwards the police and ambulance services arrived. Constables Lister and Forster gave evidence of going to 13 Kookaburra Court, where they saw Henry seated on a chair in the driveway. They went to the front door of 14 Kookaburra Court, and Gary Stewart then arrived and tried to push his way in ahead of the officers. When they opened the front door, they entered the loungeroom and found the deceased lying on the floor in a pool of blood with horrific wounds to his head. The applicant lay unconscious but upright on a couch. He was wearing only jeans and shoes, and had an injury above his left eye. His hands were extended in front of him with the palms down and there was blood on the knees of his jeans.

61. The ambulance officers, who were called in by the police, soon ascertained that the deceased was dead. They then examined the applicant and found him to be still breathing with no signs of distress. Constable Lister found two pieces of timber on the floor, one a white-painted piece of timber with blood on each end (which became Exhibit C at the trial), which was found next to the couch upon which the applicant lay and about a metre away from the deceased. This piece of timber was the size of a fence picket and about 35 millimetres thick. The second piece of timber (Exhibit D) was found lying next to a chair and was identified by Henry as the same piece which his brother had brought into the house prior to Christmas. According to Henry, Exhibit D had not been in the room when the applicant assaulted him.

64. The defence called no evidence. At the close of the Crown case, defence counsel told the learned judge that he wanted to raise a question of provocation, to which prosecuting counsel responded that provocation simply did not exist on the evidence. Defence counsel then made submissions to his Honour that provocation was open on the evidence before the court, rather than a matter of mere speculation. The prosecutor continued to argue that there was no evidence that justified provocation being left to the jury.

67. After hearing counsel for the Crown, the learned judge, without calling upon the defence, ruled that there was sufficient evidence to raise the issue of provocation for consideration by the jury, saying -

"The evidence is clear and uncontested that the deceased was in an angry and argumentative mood. He declared his intentions outside before he went into the house. It is open on the evidence that he had the first go on the accused, and that the accused was not expecting it. It is possible that he coloured his actions with some inappropriate expletives, given his statements outside. Certainly the evidence unhappily indicates a very violent attack upon the deceased in the end, consistent with loss of self-control. All of that in my view is sufficient to raise the question of provocation before this jury."

71. Having ruled that provocation was open, his Honour went on to comment that it was a very difficult question for counsel as to how many defences could be run with credibility. He pointed out that there were forensic risks in relying upon the last element justifying provocation, namely the explosive force used. The matter was then adjourned to enable defence counsel to consider whether he wanted the defence of provocation to be put to the jury.

74. The next morning, defence counsel put to the judge that he did not propose to go to the jury on provocation. The learned judge then asked, if provocation was open, as a matter of law was he required to put it if counsel asked him not to do so. Defence counsel said that his Honour was not, and asked him not to put provocation to the jury. The prosecutor had previously argued that provocation was not open, largely, as I follow his submission, on the grounds that all that was proved was the making of a statement outside the house and outside the hearing of the accused, and that provocation must take place in the presence of the person provoked.

77. Now it is well-established by a line of authority that goes back in Australia beyond Pemble v. The Queen [1971] HCA 20; (1971) 124 C.L.R. 107, but in England to the judgment of Lord Reading, C.J. in R. v. Hopper [1915] 2 K.B. 431, that if the defence of provocation to a charge of murder is open on the evidence, the trial judge should leave it to the jury, no matter what course is followed by the accused's counsel or whether the defence was actually raised during the trial. In Australia this line of authority may be followed from Parker v. The Queen [1964] UKPCHCA 1; (1964) 111 C.L.R. 665, per Lord Morris of Borth-Y-Gest at 681-2, through Pemble per Barwick, C.J. at 118-119, and Menzies, J. at 132-133, to Van Den Hoek v. The Queen [1986] HCA 76; (1986) 161 C.L.R. 158 per Gibbs, C.J., Wilson, Brennan and Deane, JJ. at 162-163; Stingel v. The Queen [1990] HCA 61; (1990) 171 C.L.R. 312, at 334; and Masciantonio v. The Queen [1995] HCA 67; (1995) 183 C.L.R. 58, per Brennan, Deane, Dawson and Gaudron, JJ. at 67-68. In Hopper, Lord Reading said, at 435:

"We do not assent to the suggestion that as the defence throughout the trial was accident, the judge was justified in not putting the question as to manslaughter. Whatever the line of defence adopted by counsel at the trial of a prisoner, we are of opinion that it is for the judge to put such questions as appear to him properly to arise upon the evidence even although counsel may not have raised some question himself. In this case it may be that the difficulty of presenting the alternative defences of accident and manslaughter may have actuated counsel in saying very little about manslaughter, but if we come to the conclusion, as we do, that there was some evidence - we say no more than that - upon which a question ought to have been left to the jury as to the crime being manslaughter only, we think that this verdict of murder cannot stand."

82. Lord Reading's words point to the dilemma often faced by defence counsel, leading to a reluctance or refusal to put provocation to the jury. For provocation assumes that the accused has been provoked into a loss of self-control, an assertion which "is bound to weaken, if not destroy, self-defence", as Mason, J. put it in Van Den Hoek at 169, and which would probably destroy a defence of accident, as Lord Reading inferred. But this does not "relieve the trial judge of the duty to put to the jury with adequate assistance any matters on which the jury, upon the evidence, could find for the accused"; per Barwick, C.J. in Pemble at 118. It is equally well-established that whatever line of defence is followed by defence counsel at the trial, if provocation is open on the evidence, the judge must put it to the jury. In Pemble, counsel for the defence at the trial had expressly abandoned the defences raised on the appeal and confined the defence to the matters he did raise (per Barwick, C.J., at 118). In Van Den Hoek, counsel told the judge that the only issues were intention and self-defence. Gibbs, C.J., Wilson, Brennan and Deane, JJ. said, at 161, that "the fact that counsel in effect told the learned judge that provocation was not an issue" did not absolve the judge from the necessity of leaving the issue to the jury, if there was some evidence for its consideration. Even an express disavowal of provocation does not relieve the judge from leaving the case to the jury if the judge is of the view that the evidence might fairly allow a jury to give consideration to whether or not the accused did act under the influence of provocation; R. v. Trifon Koutsourides (1982) 7 A.Crim.R. 237; and R. v. John Arthur Shea (1988) 33 A.Crim.R. 394, at 397.

85. The reasons given by defence counsel for not pursuing provocation here were that the issue was "really at the periphery" and "not an issue that I see as a sensible or a reasonable one to go to the jury on". The learned judge on the other hand referred, as I have said, to the explosive force which had been used, and later said that in his view it would be more likely to be counterproductive than anything else, to raise provocation.

88. If there was a sufficient case of provocation to go to the jury, it was understandable that defence counsel did not wish to damage his two defences of automatism or self-defence by emphasising the evidence which suggested a furious, prolonged and uncontrolled attack upon the victim; but that dilemma plainly should not have prevented the learned judge putting the issue to the jury.

91. The test for deciding whether his Honour should have left provocation to the jury is whether there was evidence by which the jury might fail to be satisfied that the killing was unprovoked. In Masciantonio, Brennan, Deane, Dawson and Gaudron, JJ. said, at 67-68, quoting from Stingel, at 334, that the test was -

"whether, on the version of events most favourable to the accused which is suggested by material in the evidence, a jury acting reasonably might fail to be satisfied beyond reasonable doubt that the killing was unprovoked in the relevant sense."

95. But although the test is the same for a trial judge or an appellate court, a trial judge would naturally be very reluctant to withdraw such an issue from the jury, whereas an appellate court must apply the test with such exactitude as the circumstances permit; Lee Chun-Chuen v. The Queen [1963] A.C. 220, at 230.

98. The evidence (in particular that of Drago Henry) was that the trigger for the dispute in which he had been injured was an argument with the applicant about the ownership of the videotape. This had involved the deceased, who had told the applicant, "Give it back, it's not yours, it belongs to Drago." Henry said he could see things were getting out of hand, and told the applicant, "You can keep it, it's yours", at which the applicant smashed the video into pieces on his knee. Shortly afterwards Henry was hit twice with Exhibit D, which the applicant had with him in the living room at 14 Kookaburra Court. This caused Henry's head to bleed profusely and the sight of his injuries made the deceased very upset. The words then spoken by the deceased ("I'll fix that black bastard") were understood by Henry as angry, fighting words. 14 Kookaburra Court was not the deceased's house, and the jury would plainly have been entitled to conclude that the deceased, who had already had a disagreement with the applicant that day, had gone into the house with the angry and aggressive intention of attacking the applicant, in retaliation for the injuries he had inflicted on Henry. The jury would have been entitled to think it likely that the deceased had, as the learned judge put it, "coloured his actions with some inappropriate expletives, given his statements outside".

101. There was, of course, no direct evidence of what happened once the deceased went back into 14 Kookaburra Court. When Henry left the livingroom, after having been assaulted by the applicant, he said that there was only one piece of wood (Exhibit D) in the room. This was the weapon the applicant had used against him and which he was holding when Henry went outside. Later, after the deceased was killed, the second piece of wood (Exhibit C) was found in the livingroom. It would, I think, have been open to the jury to think it probable that this was obtained by the deceased for use as a weapon, his means of "fixing" the applicant, and that it was taken by him into the livingroom for the purpose. Thereafter, there was evidence which could have led to the view that the deceased, who went into the house with aggressive intent, struck the applicant first. The applicant's blood was found in a "medium velocity spatter", as though "cast off" from an object, on the south end of the west wall of the livingroom. There was evidence that the applicant's blood may have been on Exhibit C, and that the applicant's blood was on a doona in the room and on an urn. The applicant, according to Henry, did not have injuries when he last saw him in the livingroom, but he was later observed to have a laceration to the left eyebrow and other injuries. There was also DNA evidence indicating that the deceased's hand may have come into contact with the applicant, and of an injury to the knuckles of the deceased's left hand consistent with a punch having been thrown by him. In all these circumstances the learned judge was clearly justified in ruling that "it was open on the evidence that [the deceased] had the first go on the accused, and that the accused was not expecting it".

104. Dr Ranson, the pathologist who conducted a post-mortem on the body of the deceased, found evidence of extensive bruising and lacerations and abrasions to his head and neck, arms, particularly the left arm, and right leg. Dr Ranson found 17 areas of bruising of various sizes, 67 different lacerations and 31 areas of discrete abrasions. Again, as his Honour said, all of this indicated "a very violent attack upon the deceased in the end, consistent with loss of self-control".

107. In Van Den Hoek, at 169, Mason, J. pointed to the jury's capacity to infer loss of control from appropriate facts, saying that -

"a jury would be entitled to infer loss of self-control from facts suggesting a possible loss of self-control, even if the accused expressly denied loss of temper, especially when the nature of the main defence would account for the falsehood. Of course, an admission of fear is not as antagonistic to self-defence as an admission of anger. None the less the point remains that the absence of direct evidence of loss of self-control is explicable when self-defence is an issue with the result that the jury is entitled to infer it in the absence of direct evidence."

111. In these circumstances the submission of Mr Morgan-Payler, Q.C., who appeared with Mr Singh for the Crown in this Court, was that the evidence may have supported an inference that the applicant did in fact lose control when he killed the deceased, but there was no evidence upon which an inference could be drawn that the deceased offered any provocative action or words towards the applicant, nor, importantly, was there any evidence upon which the jury could have been invited to draw inferences in respect of the ordinary person. The mere fact that the applicant did lose control, so the argument ran, does not found an inference that the conduct which led him to have done so must have been so serious as to have affected an ordinary person in his position.

114. Mr Morgan-Payler also submitted that the applicant here was the initial aggressor and that provocative conduct induced by one's own conduct is inoperable in these circumstances to provide a defence. He relied on a statement to this effect made by Crockett, J., with whom Gobbo and Smith, JJ. agreed, in giving judgment in R. v. Borthwick, unreported, 18 March 1991. Notwithstanding the weight to be given to any statement of Crockett, J. in a criminal matter, I would leave open the question whether this is a correct statement of the law on provocation. The judgment in Borthwick was delivered ex tempore, no authority was cited for it, and the statement was obiter. There is some support for this view in what was said by the Privy Council in Edwards v. The Queen [1972] UKPC 1; [1973] A.C. 648, at 658. But I should myself have been inclined to prefer the view stated in R. v. Johnson (Christopher) [1989] 1 W.L.R. 740, where the Court of Appeal, dealing with s.3 of the U.K. Homicide Act 1957, said, at 744 -

"In view of the express wording of section 3, as interpreted in Reg. v. Camplin [1978] UKHL 2; [1978] A.C. 705 which was decided after Edwards v. The Queen [1972] UKPC 1; [1973] A.C. 648, we find it impossible to accept that the mere fact that a defendant caused a reaction in others, which in turn led him to lose his self-control, should result in the issue of provocation being kept outside a jury's consideration. Section 3 clearly provides that the question is whether things done or said or both provoked the defendant to lose his self-control. If there is any evidence that it may have done, the issue must be left to the jury. The jury would then have to consider all the circumstances of the incident, including all the relevant behaviour of the defendant, in deciding (a) whether he was in fact provoked and (b) whether the provocation was enough to make a reasonable man do what the defendant did."

118. In the present case, I think it is unnecessary to consider whether "self-induced" provocation ceases to be provocation for the purposes of providing a defence to murder. The evidence here was that after the applicant struck Henry, a considerable time had passed before the deceased went back into the house to confront the applicant. The deceased had telephoned for an ambulance for Henry, and Henry said that some 15 minutes later he left the house and went next door to seek help from Mr and Mrs Walsh. Henry was then given a chair in the driveway, and a further 10 minutes passed before the deceased came out of the Walshes' house and decided to confront the applicant. A period of 30 minutes or so must therefore have passed between the applicant's assaults on Henry and the decision made by the deceased to confront the applicant. In this situation, even if self-induced provocation may cease to be a defence, I should have thought that it would be open to the jury to say that the applicant's conduct here was on any view so far removed from the deceased's later actions that the deceased's behaviour relevantly constituted provocation. In this context I note that in Zecevic v. Director of Public Prosecutions [1987] HCA 26; (1987) 162 C.L.R. 645, Wilson, Dawson and Toohey, JJ. said, at 663, that -

"Where an accused person raising a plea of self-defence was the original aggressor and induced or provoked the assault against which he claims the right to defend himself, it will be for the jury to consider whether the original aggression had ceased, so as to have enabled the accused to form a belief, upon reasonable grounds, that his actions were necessary in self-defence."

122. In argument, mention was also made of the question whether a racial insult can amount by itself to provocation; as to which see Stingel, at 325, and Masciantonio, at 69-70, and 71-74, in the context of what are the characteristics of the ordinary person when determining whether the conduct of the deceased was such as to provoke an ordinary person to the relevant retaliation. It is unnecessary to pursue this question also, since Mr Morgan-Payler conceded that if, on the evidence, it was open to a jury to take the view that the deceased attacked the applicant with a weapon, at the same time uttering racial taunts, then provocation was open and should have been left to the jury.

125. Mr Priest, who appeared in this Court for the applicant, submitted that from the combination of circumstances it might reasonably be inferred that the deceased entered the livingroom where the applicant was present for the purpose of attacking the applicant for the injury done to Henry, and that he was angry and uttering racial taunts. He submitted that it was an irresistible inference that the deceased struck the applicant with the wood (Exhibit C) and possibly with his fist. A jury acting reasonably might, as a result, fail to be satisfied beyond reasonable doubt that the killing was unprovoked.

128. In my opinion the learned judge was correct in first ruling that provocation was open and that the defence should accordingly have been left to the jury. Indeed, on these facts, it might well be thought that the defence with the most likelihood of acceptance by a jury was provocation, having regard to the loss of self-control and the anger suggested by the deceased's injuries and the length of time that must have been taken to inflict them. The question whether the provocation was such as to cause an ordinary person to lose control was, in my view, one for the jury to answer.

131. Mr Morgan-Payler accepted that if provocation should have been left to the jury, a miscarriage of justice has occurred, notwithstanding the stance taken by defence counsel. In my view, ground 1 of the application succeeds, and it is unnecessary in these circumstances to consider the remaining grounds of the application.

134. I would accordingly allow the appeal, quash the verdict of guilty and direct that there should be an order for the retrial of the applicant.

139. I agree that this was a case where, on the version of the evidence most favourable to the accused, the jury could have entertained a reasonable doubt that the killing was unprovoked. The trial judge in fact ruled that there was evidence upon which a reasonable jury might have entertained such a doubt. Although Mr Morgan-Payler sought to attribute to this ruling the caution which is customarily displayed by trial judges in determining whether to leave provocation to the jury, I agree with Charles, J.A. that it was the weight of the evidence, and not caution, which led the judge in this instance to rule as he did. The deceased had no reason to re-enter the applicant's premises, save to carry out the purpose which he uttered immediately before such re-entry, namely to "fix the black bastard", the applicant being a man of aboriginal extraction.

142. It was also open to the jury to infer, as the Crown concedes, that in order to effectuate his purpose the deceased armed himself with the weapon which became the instrument of his own destruction, namely the piece of timber which became Exhibit C at the trial.

145. It was also open to the jury, in my view, to infer from the scientific evidence, the evidence of blood-staining on the wall and the evidence of injury to the applicant that the deceased had attacked the applicant and was the initial aggressor.

148. Mr Morgan-Payler, whilst accepting that these inferences were open to the jury, contended that it was not open to reasonable inference that the deceased had also "racially taunted" the applicant, and that if such inference was not open the other inferences could not of themselves support a defence of provocation.

151. For my own part, even without the inference of racial taunts, it would have been open, I believe, to the jury to entertain a reasonable doubt that the killing was unprovoked, on the inferences that were open to them. However, in my view it was open to the jury to draw an inference that, together with the acts of aggression, the deceased had also engaged in taunting the applicant by reference to his racial background. Furthermore, as Charles, J.A. has indicated, the ferocity of the attack on the deceased is itself some evidence of a sudden and temporary loss of self-control on the applicant's part.

154. The sum total of the evidence leads me to the view that there was sufficient material before the jury upon which they could have concluded that the killing might have been provoked, and, as I understood his submission, Mr Morgan-Payler did not contend otherwise if the combination of inferences to which I have referred was open to be drawn. The Crown, however, contended that, even if this was so, provocation was not open on the special facts of this case, because the provocation was "self-induced" by the acts of aggression which had earlier been committed by the applicant towards the man Henry. However, even if there is such a concept of "self-induced provocation, being no provocation", which is unnecessary to decide, it would clearly have been open to the jury on the facts of this case to conclude that such provocative acts as had been engaged in by the applicant on the earlier occasion had ceased to be of relevance by the time when the deceased determined to re-enter the house, and that the deceased had embarked upon a mission of retribution or revenge for the attack on Henry.

157. It is clear, for the reasons given by Charles, J.A., that the main reason why his Honour did not leave the issue of provocation to the jury was because he had been asked not to do so by counsel for the accused, on the basis that such a defence would detract from the defences of automatism and self-defence which were "the first line defences". That this was the reason why his Honour acted as he did is, I think, confirmed by his report to this Court pursuant to the Criminal Appeal and Procedure Rules. But this is a dilemma frequently faced by counsel in murder trials, and, for the reasons which Charles, J.A. has given, I agree that this was insufficient reason for his Honour to decline to leave provocation to the jury.

160. Although Mr Morgan-Payler initially argued that this Court should depart from the line of authority to which Charles, J.A. has referred, which establishes that it is the obligation of a trial judge to leave provocation to the jury where it is open on the evidence, notwithstanding that defence counsel has made a forensic decision not to pursue it, I think that in the long run he accepted that such a line of authority was so well established that it is too late in the day for this Court to decide to the contrary.

163. In the circumstances, the application will have to be allowed. Counsel agreed that if this was the result the proper order for this Court to make is that there should be a re-trial.

171. The application for leave to appeal against the conviction for murder is allowed. The appeal is treated as having been instituted and heard instanter. The appeal is allowed. The conviction on count 1 is quashed and in lieu thereof we direct that a new trial be had on that count.