R v Thorpe [1999] VSCA 172

Court of Appeal (Vic)|1999-10-22|Before: WINNEKE, P., CALLAWAY and CHERNOV, JJ.A.

For the reasons expressed earlier in this judgment the conviction must be quashed and a new trial of the applicant directed. We express our appreciation to Mr. Hicks for the written submissions that he filed, at the invitation of the Court, after the close of argument.

On 27th February 1998 the applicant was found guilty in the Supreme Court on one count of murder and one count of intentionally causing serious injury. His conviction on the former count was quashed and a new trial directed: see ; On 10th February 1999 he was again convicted of murder. He sought leave to appeal against that conviction on three grounds, of which one was not argued. The other grounds both impugned the learned trial judge's directions with respect to provocation. The evidence led at the second trial was not significantly different, at least for present purposes, from that summarized in especially but not only at 327-329, but provocation became a major issue. It was an issue that was made more difficult to consider because there was no direct evidence of what occurred between the applicant and the deceased when the events unfolded. One was dead and the other was found in what appeared to be a semi-comatose condition in which he was not responding to painful stimuli. The applicant gave evidence but said that he could not recall what had happened.

Rather than repeat what Charles, J.A. said in R. v. Thorpe (No. 1) at 327-329, we shall proceed directly to the reasons why it is said that the second conviction for murder should be quashed and that there should be a third trial. In dealing with them we shall from time to time refer to "provocative words or conduct". In doing so, we do not intend to foreclose future discussion of the kind of words that are now regarded as sufficient at common law: cf. Moffa v. R. [1977] HCA 14; (1977) 138 C.L.R. 601 at 605, 619 and 620-621, Stingel v. R. [1990] HCA 61; (1990) 171 C.L.R. 312 at 321-322, Green v. R. (1997) 191 C.L.R. 334 at 375-376 and R. v. Tuncay [1998] 2 V.R. 19. No argument was addressed to us on that question but it is hard to see why, like the former doctrine of proportionality, it is not subsumed under the objective test: cf. R. v. Tuncay at 20-21.

Mr. Russell for the applicant criticized the charge in five respects. The first concerned the way in which his Honour related his directions on provocation to the evidence. Although he expressly told the jury that provocation may consist of "some act or acts done or words spoken by the deceased, or both", counsel submitted that it was not made clear that an attack by the deceased when he re-entered the house could be enough on its own. There was evidence as to the kind of attack that was likely to have taken place but, counsel said, the judge had not drawn specific attention to it in the charge. Moreover, although the jury had been told to take into account the personal characteristics of the applicant, no more direct reference had been made to his Aboriginality than appears in the passage set out in [12] below. (It will be recalled from the report of the earlier case that the deceased had said that he was going back to "fix that black bastard".) The short answer to those submissions is that no exception was taken below and it is too late now. Counsel saw no injustice or error in what was done and, having regard to the nature of the criticisms, nor should this Court: see R. v. Wright [1999] VSCA 145 especially at [2] and [16-17].

The other two criticisms were of more substance. For convenience we preface them with the following passage from the joint judgment of Brennan, Deane, Dawson and Gaudron, JJ. in Masciantonio v. R. [1995] HCA 67; (1995) 183 C.L.R. 58 at 66:

As we have already mentioned, there was no direct evidence of what occurred after the deceased re-entered the house. The prosecutor asked the jury not to speculate. As will be seen in [12] below, the judge directed them that they were entitled to draw inferences based upon what happened before and afterwards but not to speculate. That was correct, but such inferences had only to be as to what may have occurred. The question was whether provocation (to use that word as shorthand) was reasonably open on the evidence: cf. Knight v. R. [1992] HCA 56; (1992) 175 C.L.R. 495 at 503-504. The jury did not have to make a finding as to what did occur.

2. The objective test is whether the provocative words or conduct, measured in gravity by reference to the personal situation of the accused, could have caused an ordinary person to lose self-control to the extent that the accused did: see Stingel v. R. at 325 and Masciantonio v. R. at 69. (Putting recklessness to one side, as the High Court did in Masciantonio v. R. at 66, it is the formation of an intention to kill or do really serious physical injury and the carrying out of that intention which are the important considerations, rather than the precise way in which the accused reacted: see Moffa v. R. at 605 and Masciantonio v. R. at 67 and 69-70.) In Stingel v. R. "could" and "might" were regarded as synonyms at 329, 331 and 335. See also Osland v. R. [1998] HCA 75; (1998) 159 A.L.R. 170 at [170]. In directing a jury, it is acceptable to use "might" rather than "could", preferably saying that "might" in this context means the same thing as "could". Experience shows that there is less chance of the judge's accidentally transposing "would" and "might" or of the jury's mishearing what the judge says. The corollary of both "could" and "might" is the Crown's establishing that an ordinary person "would not" have lost self-control: see, for example, Masciantonio v. R. at 71.

3. All the elements of murder must have been proved beyond reasonable doubt (and self-defence excluded if self-defence is an issue) before any question of provocation arises. If the jury reach that question, the Crown must also prove beyond reasonable doubt that the killing was unprovoked in the relevant sense, for otherwise the offence will be manslaughter and not murder. It follows that they must acquit the accused of murder if there is a reasonable possibility that the killing was provoked. To explain provocation that way is not contrary to Green v. R. [1971] HCA 55; (1971) 126 C.L.R. 28, any more than the standard direction in cases involving circumstantial evidence that the jury must acquit the accused if there is a reasonable hypothesis consistent with innocence. Similar directions have been approved by distinguished judges in cognate circumstances. Compare Morgan v. Colman (1981) 27 S.A.S.R. 334 at 337 proposition 8 and 339 proposition 8 per Wells, J., with whom Mitchell, A.C.J. and White, J. agreed, and R. v. Abusafiah at 544-545 per Hunt, J., with whom Gleeson, C.J. agreed and Mahoney, J.A. agreed generally. See also Moffa v. R. at 610 ("reasonably possible account") per Barwick, C.J., Green v. R. (1997) 191 C.L.R. 334 at 340 ("allow the possibility") per Brennan, C.J. and R. v. Best [1998] 4 V.R. 603 at 609 line 51 to 610 line 5. An alternative expression is a possibility that is reasonably open on the evidence: see [9] above and Moffa v. R. at 611.

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