R v Yasso [2002] VSC 469

Supreme Court of Victoria|2002-09-06|Before: COLDREY J

PROVOCATION - Consideration of ordinary person test - Issue not to be left to the jury.

This is a ruling as to whether there is evidence upon which provocation should be left to the jury having regard to the requirements of the objective test. That evidence must be assessed in its most favourable light from the point of view of the accused.

On 8 May 2001, the accused, Mazin Yasso, killed his estranged wife, Eman Hermiz, by stabbing her many times with a kitchen knife. The fatal attack occurred at Meadow Heights Shopping Centre. Shortly after midday the accused had gone to the centre seeking out his wife. He had gone there armed with the knife, (albeit he claimed it had been in his jacket pocket for some weeks), and confronted the deceased in breach of an intervention order made on 23 March 2001.

Details of that confrontation are provided in the evidence of eye-witnesses and by the accused in his record of interview. The accused did not give evidence as part of the defence case. I shall turn to those details shortly.

In recent years the courts have grappled with the concept of provocation and, in particular, the circumstances in which the issue should be left for the determination of a jury. Whilst the legal principles have been refined, the myriad of factual situations have produced a variety of responses from trial judges in determining their application.

What is ultimately involved is a judicial value judgment and one which frequently falls for review by an appellate court. Even at that level, the views expressed would appear to have a subjective element. (See, for example, Green v. The Queen (1999) 161 A.L.R. 684, where the High Court judges were divided three to two as to whether a non-violent homosexual approach to a person sensitive to sexual abuse, could constitute provocation.

The applicable legal principles may be taken as being enunciated in Masciantonio v. The Queen [1995] HCA 67; (1995) 183 C.L.R. 58. At pp.66 and 67 of the judgment, the majority of the court, Brennan, C.J. And Deane, Dawson and Gaudron, JJ. said this:

"Homicide which would otherwise be murder is reduced to manslaughter if the accused causes death whilst acting under provocation. The provocation must be such that it is capable of causing an ordinary person to lose self-control. The provocation must actually cause the accused to lose self-control and the accused must act whilst deprived of self-control before he has had the opportunity to regain his composure. It follows that the accused must form an intention to kill or to do grievous bodily harm, putting recklessness to one side, before any question of provocation arises. Provocation only operates to reduce what would otherwise be murder to manslaughter. Since the provocation must be such as would cause an ordinary person to lose self-control and act in a manner which would encompass the accused's actions, it must be such as could cause an ordinary person to form an intention to inflict grievous bodily harm or even death. The test involving the hypothetical ordinary person is an objective test which lays down the minimum standard of self-control required by the law. Since it is an objective test, the characteristics of the ordinary person are merely those of a person with ordinary powers of self-control. They are not the characteristics of the accused, although when it is appropriate to do so because of the accused's immaturity, the ordinary person may be taken to be of the accused's age. 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. 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 would cause an ordinary person to lose self-control and act in the manner which would encompass the accused's actions ."

Later on in that judgment the majority stated the test to be applied in determining whether provocation should be left to the jury. They did so in these terms:

"It is 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." (p.67-8)

Recent decisions in which these principles have been applied include R. v. Tuncay [1998] 2 V.R., 19; R. v. Parsons [2000] VSCA 15; [2000] 1 V.R. 161; R. v. Abebe [2000] 1 v.R. 429; and R. v. Leonboyer [2001] VSCA 149.

I should add that, on the current state of the law, the fact that the accused breached the intervention order, or that he set up the confrontation with the accused, would not necessarily prevent a defence of provocation being advanced.

In the present case, the evidence of witnesses to the killing suggests a frenzied attack perpetrated by the accused from which it may be inferred that he had lost his self-control.

In his description of what occurred provided to interviewing police, the accused claimed that, having met his wife at Meadow Heights Shopping Centre, he asked her to return to him a gold necklace and his British passport. According to his version, she agreed to do so the next day. He sought a guarantee of her appearance at that time by asking her to give him custody of her handbag and mobile phone. She agreed to give him the handbag but not the mobile phone.

"After she agreed to return the two things that I asked her for, she promised me that she would see me tomorrow at 11 o'clock, close to the shopping centre. So I told her to guarantee that she is coming tomorrow by giving me her handbag and the mobile phone, which she was carrying. She agreed to give me the handbag and I held the handbag in my hand. But she disagreed to give me the mobile phone. Then I pulled the knife at her - I pulled the knife at her. And I repeatedly told her to give me the mobile phone. But she did not agree. She spat at me. And I hit her with the knife. After I hit her with the knife - after I hit her with the knife, there was my brother-in-law - the husband of Eman's sister. He was coming towards the bus stop in a car. After that, I left Eman and I went to a school after the shopping centre. And went out of the school, where I had the last cigarette which I - was on me - and I went around the area for about an half an hour - in the park - Meadow Heights park."

The accused's account was reiterated later in the interview. Although he claimed there was no yelling between he and his wife (question 112), the evidence of the witnesses indicated loud angry voices preceding the stabbing.

At question 126ff the accused described the deceased as being frightened after he pulled the knife, and spoke of her unsuccessful attempts to run away. He described himself as being "in an hysterical situation" (question 134). Question 177 was a leading question framed in terms of the deceased spitting on the accused, a proposition he affirmed. However there is no specific question in the interview as to where any spittle might have landed.

At question 252ff the accused again spoke of the deceased spitting at him, (rather than on him), which was part of his original account in answer 65 and, in effect, states that he became angry. It is not asserted in the interview that Ms Hermiz said or did anything provocative on this occasion beyond what I have set out.

In submitting that provocation should not be left to the jury, Mr Leckie, on behalf of the Crown, argued that, even conceding that the accused had lost his self-control as a result of the provocative act of spitting, the degree of gravity of such conduct could never provoke an ordinary person into the murderous response of the accused

In arguing that provocation should be left to the jury, Mr Brustman, on behalf of the accused, relied not only on the gravity of the act of spitting, but also generally on the ethnic background of the accused.

In relation to the former, the evidence from a matriarch of the Iraqi community, a Mrs Suoad Kakos, suggested the spitting of a wife at her husband was a big insult but the extent of any reprisal was not clear. For example, (at p. 720) she suggested it might result in the husband breaking his wife's arm or leg. Later, at page 723 this exchange occurred:

"If in circumstances where a man and woman are separated?" Answer, "M'mm." Question, "And they meet and have an argument, if she spat at him?" Answer, "Spat on him?" question, "Spat at him, not on him, at him, he would regard that as a very big insult, is that correct?" Answer, "Very, very big insult." Question, "And again would his honour be damaged by that act of hers?" Answer, "And if they have already been upset and they have a problem and they are arguing and she spat at him, of course he would lose control of his nerves and - - -." Question, "Would he regard it as - would he regard that as an attack against his honour, a woman spitting at him, his wife spitting at him?" Answer, "Yes of course. How can a woman spat(sic) at a man?" Answer, "And might he take action against her in a violent way?" Answer, "Depends on his nerves."

There is an equivocal aspect to these answers but it may be accepted that the act of spitting constitutes a serious affront. However, the question is whether the action of spitting alone, or in combination with other factors, attracts the application of the doctrine of provocation.

In regard to such factors a number of events in the history of the relationship were relied upon. These were the fact that Ms Hermiz had left the accused and the distress it occasioned to him; the fact that he believed she was having an affair with another man, Nasir Haba, which also upset him; the fact that he believed Ms Hermiz had taken his British passport and, on his version, taken and used his Mastercard; the obtaining of the intervention order against him; and the withdrawal of sponsorship by Ms Hermiz which would result in his expulsion from the country. Consequently it was argued that the spitting should not be seen in isolation but as the explosive culmination of a series of distressing events.

The evidence of the humiliation of a man in the situation of the accused and the destruction of his honour within Iraqi society is also relied upon. Mr Brustman cited Abebe's case as illustrative of how such ethnic considerations should be accommodated in assessing the issue of provocation.

In response, Mr Leckie submitted that the accused in his police interview placed no emphasis on the background matters which I have enumerated as playing any role in his loss of self-control. Indeed, he disavowed that his wife's separation from him was caused by her purported affair with Nasir Haba or that he was upset by the rumours sweeping the Iraqi community about that relationship; (see questions 486 and 487).

As for Abebe's case, Mr Leckie argued that it could be distinguished in that the sexually explicit conduct in that case could be directly linked to the cultural background of the accused. I think that view has some weight. In any event each case will depend upon its individual facts.

As I intimated to counsel, this is a difficult area of the law and assessments by judges as to what may constitute legal provocation vary widely.

This is particularly so in relation to whether the requirements of the objective test have been met. This is the determination I must make.

In the instant case, the background events, if I can call them that, appear to have largely occurred in February, March and April of 2001. No doubt they created upset and anger in the accused. However, by late April it appears on the evidence that his major concern was for the return of gold jewellery and his British passport. Certainly these were the topics raised by him in his final conversation with his wife, according to the record of interview. Moreover in recounting the events of the fatal afternoon he placed no emphasis on the earlier causes of conflict between the couple as influencing his fatal conduct.

On a view of the evidence most favourable to the accused I have concluded that the events at the scene, (which include the spitting), are not such that "a jury acting reasonably might fail to be satisfied beyond reasonable doubt that the killing was unprovoked in the relevant sense", to borrow from the court in Masciantonio. Even adding the prior events to the mix, I do not regard the test as having been satisfied.

Accordingly, it is my ruling that provocation should not be left to this jury.

Although not part of this ruling, I make the following general comments.

Cultural values inevitably change over time. In our modern society persons frequently leave relationships and form new ones. Whilst this behaviour may cause a former partner to feel hurt, disappointment and anger, there is nothing abnormal about it.

What is abnormal is the reaction to this conduct in those small percentage of instances where that former partner (almost inevitably a male) loses self control and perpetuates fatal violence with an intention to kill or to cause serious bodily injury.

In my view, this will rarely, if ever, be a response which might be induced in an ordinary person in the 21st century. Significant additional provocative factors would normally be required before the ordinary person test could be met.

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