R v Yasso [2004] VSCA 127

Court of Appeal (Vic)|2004-08-05|Before: CHARLES, BATT and VINCENT, JJ.A.

CRIMINAL LAW - Conviction - Murder - Provocation - Objective test - Gravity of provocation - Ethnicity - Self-induced provocation - Whether issue to be left to jury - Appeal allowed (by majority).

On 20 August 2002 the applicant pleaded not guilty in the Supreme Court at Melbourne to the charge that he murdered Eman Hermiz, his estranged wife. The jury on 11 September 2002 found the applicant guilty. After a plea, the applicant was sentenced on 20 September 2002 to be imprisoned for 20 years and the judge fixed a non-parole period of 15 years. The applicant now seeks leave to appeal against both conviction and sentence. A principal issue at the trial was whether the issue of provocation should be left to the jury, the trial judge ruling that it should not. The sole ground of the application for leave to appeal against conviction is that the judge erred in so ruling.

The Crown case was as follows. Eman Hermiz was stabbed to death by the applicant outside the Meadow Heights shopping centre shortly after midday on 8 May 2001. The applicant fled the scene but was arrested shortly afterwards in a reserve several blocks away. When interviewed by the police he admitted that he had stabbed the deceased. He said that he had gone to meet her and his brother-in-law, and was seeking the return of his British passport and a gold necklace. He said they spoke normally, and that she had agreed to meet him the next day to give him his passport and the necklace. He then asked her to give him her mobile telephone as some assurance that she would return. She, however, refused to do so and then spat on him, after which he drew a kitchen knife which he had carried for protection from his brother-in-law and stabbed her. He said that he did not know how many times and had not meant to kill her.

The scene of the killing was an undeveloped paddock beside the shopping centre, in an area almost immediately abutting the wall of the centre. The deceased had recently commenced English language classes in a "learning shop" in the centre. The applicant and the deceased were observed arguing beside the wall, and the applicant was seen blocking his wife's way. She appeared to be scared and he was seen to be angry. Not long afterwards other witnesses heard a woman's scream. They then saw from a distance the applicant apparently punching the victim repeatedly. One witness said it was a frenzied attack. Various witnesses described her falling to the ground, where the applicant knelt beside her and continued punching her to the chest. As the witnesses drew closer, some calling for the offender to desist, they saw that he had a kitchen knife in his hand and was in fact stabbing her in the chest. The applicant looked up at the persons approaching, stabbed the deceased twice more, and then hurried away to the rear of the shopping centre, and was afterwards observed running through the centre. No witness saw the deceased spit on the applicant or act aggressively towards him.

Examination of the deceased's body later revealed that she had been stabbed twenty times, including six wounds that entered the chest cavity, causing six injuries to the lungs and one to the heart. There were also eight defensive injuries to the upper limbs. The lung injuries had resulted in a collapsed left lung. The injury to the heart, aggravated by those to the lung, had caused major bleeding inside the chest, and it was this bleeding which ultimately caused death.

Evidence was given by the deceased's sister, Hanna Kalandos, and her husband, Gemi Hanna. Both spoke of the history of the family and the relationship between the applicant and the deceased. They had married in Iraq in 1990, and later in the 1990's went to Jordan, from where the applicant, who had been born in England, returned to the United Kingdom. It was then intended that he would bring his wife with him, but he failed to do so. After two years in Jordan, Eman Hermiz returned to Iraq and was sponsored to come to Australia by her sister Hanna Kalandos. She arrived in 1999 and began building a life, taking English and driving classes and obtaining work as a hairdresser.

About a year later the applicant came to Australia on a visitor's visa. He moved in with his wife who was living with her sister. After a period the couple moved out, and it was then that the relationship deteriorated. The applicant had a gambling problem and lost $12,000 his wife had borrowed to commence a hairdressing business. The applicant was also controlling by nature, and the deceased told family members that he had begun to engage in threatening behaviour. She moved back in with her sister in March 2001, and from that point they received telephone calls from the applicant in which he threatened the deceased, and other family members. Hanna Kalandos, Gemi Hanna and their two children all described in evidence incidents where they witnessed the applicant threatening to kill the deceased, and her fearful response to his presence.

Evidence was given by various witnesses of the friendship between the deceased and Nasir Haba, who was also called as a witness. Haba was a friend the deceased had met in language classes, and in her hairdressing work. Evidence was given that for a period the deceased would constantly telephone Haba. The witnesses did not suggest that the relationship was an improper one, but agreed that the applicant was angry about it. Nasir Haba himself gave evidence of what he called his brotherly relationship with the deceased, confirming that she had called him persistently on the telephone to talk about her problems. He said that after the deceased moved out with the applicant from the home of the Hanna family, their only contact was by telephone, and that there was no romantic or otherwise improper relationship between them. Nasir Haba said that he encouraged the deceased to be patient and to work out her problems with the applicant. He described the applicant's harassing behaviour towards him and threats made by the applicant to kill him. He also supported Eman Hermiz's descriptions of the applicant's threats and threatening behaviour towards her.

On 13 March 2001 Eman Hermiz applied for and was granted an interim intervention order against the applicant. On 23 March, following a contested hearing, the magistrate granted a final intervention order. A transcript of the two hearings was tendered in evidence. In her applications the deceased described the applicant's threats to kill her and her family, and an occasion when he had sharpened a knife in front of her, and other threatening behaviour. She described his controlling and suspicious behaviour. During the hearings the applicant denied the accusations and stated that he loved his wife. However, he also accused her of the theft of his MasterCard and of other property. Two witnesses, Thamr and Salam Allos, gave evidence of their dealings with the applicant. They said that they had met him through the deceased and befriended him. They observed the failure of the relationship and the applicant's anger about Eman Hermiz taking his money, jewellery and passport. They gave evidence of having driven the applicant around in a search for the deceased's new address after she moved out from the Hanna household. Salam Allos spoke about the applicant's suspicions in respect of Nasir Haba. He gave an account of the mores of the Iraqi community in respect of extra-marital affairs. Other witnesses gave evidence of the applicant's searching for the deceased at two language schools.

At the end of the intervention order proceedings, Gemi Hanna told the applicant that Eman Hermiz had withdrawn her sponsorship of his visa application. Christopher Coleman, an immigration official, gave evidence that this was formally done on 26 March 2001. On 11 April 2001 the applicant's immigration application was refused and the applicant was given 28 days to leave the country. He consulted community worker Sharon Urquhart about his immigration appeal. The applicant told Ms Urquhart that his wife had entered Australia using false information, and asked if it was possible for her visa to be cancelled.

Carlos Martinez, a property manager, gave evidence about the lease arrangements for the marital flat of the applicant at 1/8 Prospect Street, Glenroy. On 1 May 2001 the landlord obtained an order for the eviction of the applicant from that flat on 9 May 2001.

The applicant stood mute upon his trial, but called two witnesses, a retired couple, George and Souad Kakos, who gave evidence primarily as to the response to extra-marital relations in the Iraqi Chaldean Christian community, to which both the applicant and his estranged wife belonged.

After the evidence was completed, and before counsel's addresses to the jury, the prosecutor argued that provocation should not be left to the jury. Basing his argument substantially on the contents of the record of interview of the applicant, he submitted that the applicant's chief concern in confronting the victim was his anxiety to obtain the return of his passport and the gold necklace. Reference was made to the victim having spat "at" the applicant, but the effect of this was down-played, it being said that the applicant never claimed that the spitting had had much, if any, effect upon him. Insofar as the difficulties with his wife and rumours that she was involved with another man were concerned, it was put that the applicant did not claim that this had had an effect on him at the time of the assault. The prosecutor relied on R. v. Tuncay[1]. Reference was also made to R. v. Parsons[2]. The prosecutor conceded that it would on the evidence have been open to the jury to find that the applicant had lost self-control. His argument was, however, that on the best view of the evidence from the viewpoint of the applicant, the circumstances were not such as could have led an ordinary person to lose self-control as the applicant did.

In response defence counsel submitted that provocation should be left to the jury, relying principally on the decision in R. v. Abebe[3].

The judge, a most experienced criminal lawyer, ruled that provocation should not be left to the jury. In the ruling, which is reported, his Honour said[4] -

"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 included 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."

In Masciantonio v. The Queen[5] there was evidence that the accused believed his son-in-law had acted violently towards the accused's daughter, had caused financial difficulties for the daughter's family by excessive gambling, and had left the daughter taking property belonging to her. The accused sought out his son-in-law and said to him "Can't you do something better than what you are doing?". The son-in-law then told the accused to "piss off", attempted to kick him and pushed or shoved him causing the accused to injure his arm. The accused then got a knife from his car and in the ensuing struggle the son-in-law was stabbed. The son-in-law broke away and went to the other side of the car where he collapsed on the footpath. The accused followed him there and stabbed him again, the son-in-law later dying from a stab wound to the heart. The trial judge left the question of provocation to the jury in relation to the struggle but not in relation to the incident on the footpath. The High Court held[6] that the judge had wrongly withdrawn provocation from the jury in relation to the incident on the footpath. The majority said[7] -

"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 could cause an ordinary person to lose self-control and act in a manner which would encompass the accused's actions."

The statement of the objective test in Masciantonio set out above requires an assessment of the powers of self-control of an ordinary person not having the characteristics of the applicant. However, the gravity of the allegedly provocative conduct is to be assessed by reference to characteristics of the accused which relevantly includes race, ethnicity, personal relationships and past history. The application of this test cannot be easy for a jury to understand, let alone apply. The problem almost invariably is raised at murder trials before the final addresses of counsel commence, when argument takes place as to whether provocation should be left to the jury. More often than not such a discussion will commence with defence counsel arguing that provocation should be put to the jury. But this is not invariably so. For example, a claim of provocation may "weaken, if not destroy, self-defence" as Mason, J. put it in R. v. Van Den Hoek[8]. Examples of cases where appellate courts have ruled that provocation should have been left to the jury, notwithstanding that at the trial defence counsel agreed with the trial judge that provocation should not be left, or even asked the judge not to put provocation, include Van Den Hoek[9], R. v. Koutsourides[10], R. v. Shea[11] and R. v. Thorpe (No. 1)[12]. No matter what attitude may be taken by defence counsel the judge is obliged to leave provocation to the jury if the defence is open on the evidence[13]. Furthermore this issue must be assessed on the view of the evidence most favourable to the accused.[14]

The result of these considerations is that a trial judge will frequently find the question whether to leave provocation to the jury in a murder trial a most difficult one to answer. It is, as Eames, J.A. said in R. v. Kumar[15] -

"very easy for a judge, having heard the evidence, and without appreciating that he or she is doing so, to act upon his or her own assessment of the facts, whereas a jury, whose province it is to decide facts, might have come to a different conclusion as to those facts."

A judge who considers an accused to have acted with savage violence to an innocent victim - especially a woman - may well be averse to leaving to a jury a defence which may, if successful, substantially reduce the period of imprisonment to which the accused will later be sentenced.[16] In Masciantonio the majority said[17] that "as a matter of practicality a trial judge is likely to lean towards leaving provocation if he or she can". In like fashion Eames, J.A. said in Kumar[18] -

"A judge should be slow to conclude that there is no evidence which a jury - when applying the objective test - might decide justified a verdict of manslaughter. McHugh, J. observed in Masciantonio that, `once there is evidence of provocative conduct, the evaluation of that conduct and its effect on an innocent person is almost invariably a question for the jury. A judge who takes the issue away from the jury assumes a grave responsibility.'[19] The need for caution is especially so where there is evidence (taken at its highest, and however much it might seem implausible to the judge) that the accused had in fact lost self-control in response to identified conduct and words."

I agree. But on the other hand, as Hedigan, A.J.A. said in R. v. Tuncay[20] -

"It is self-evident that it cannot be that a trial judge in every case in which provocation is raised, however distant from the realities of human response, must leave provocation to the jury to determine."

Since Masciantonio was decided, the question of ethnicity in the context of the objective test for provocation has arisen for consideration in a number of cases. I shall refer to four, three of which have already been mentioned. In Tuncay the accused was charged with the murder of his wife, they both being of Turkish background. The wife had told the accused that she intended to leave him taking the children with her because of his drinking and saying that she would look for a man who adhered to the religious beliefs of Islam. The accused was begging her not to leave, saying he could not live without her and the children and that he would suicide, to which she said "gebher". The accused said through an interpreter that this expression meant "I would be free of you in that way" or "If you want to see someone dead you ask them `gebher' in Turkish". The accused then killed his wife in a savage and brutal attack. The trial judge left the defence of provocation to the jury. The Court of Appeal in considering the accused's application for leave to appeal against conviction, concluded that the issue of provocation should not have been left to the jury, deciding that no reasonable jury could have concluded that any incident of the behaviour by words or conduct of the deceased could have caused an ordinary person to form an intention to inflict serious bodily harm or death.

In Abebe, the accused had been convicted of the murder by stabbing of his ex-wife's lover. At the trial he admitted killing the deceased but relied on provocation. The accused and the deceased were Ethiopian, the accused's ex-wife being Eritrean. The accused gave evidence that the behaviour of his ex-wife and the deceased was contrary to Ethiopian custom, that there were rumours about their relationship circulating in the Ethiopian community, and that this had upset him and made him ashamed. He said that shortly before he attacked the deceased, his ex-wife said to him, in the presence of the deceased, that she and the deceased were lovers and were going to live together and the deceased had then smiled at him in an arrogant or condescending manner. The prosecution agreed that provocation should be left to the jury. The appeal succeeded on the ground that the judge had misdirected the jury by failing to explain to them that, in the consideration of the gravity of the allegedly provocative conduct, the accused was entitled to have brought into consideration his ethnicity, that is, the fact that he and all the others involved were Ethiopian or Eritrean, and the evidence of what was occurring between the accused's ex-wife and the deceased, the rumours in the Ethiopian community as to their relationship, and the accused's shame and humiliation.

In Kumar the accused was convicted of the murder of his former de facto wife. The accused and the deceased were both Indians, and their relationship had been a stormy one. On the morning of the killing, the accused went to the home of the deceased seeking entry and asking for food but she refused to open the door. In a record of interview with the police, the accused referred to insults and abuse by the deceased directed at him and his parents when she refused him entry. The accused departed but returned about half an hour later and ultimately broke into the house and killed the deceased by stabbing her with a knife and striking her with a meat cleaver. The accused said in his interview that the deceased had spoken in Hindi when abusing him and his parents. A Hindi translator gave evidence that the words spoken by the deceased were deeply hurtful and insulting. The judge refused to leave the defence of provocation to the jury, holding that the objective test had not been satisfied. Upon application for leave to appeal against his conviction for murder, the Court of Appeal by a majority[21] held that the judge was right to withdraw provocation from the jury. Batt, J.A. concluded that the accused's reaction fell far below the minimum limits of the range of powers of self-control to be attributed to the hypothetical ordinary person.[22] O'Bryan, A.J.A. held that in that case the provocative conduct had been mere words alone and that words which are merely insulting, hurtful and offensive, but not of a "violently provocative character" cannot satisfy the objective test.

R. v. Leonboyer[23] concerned the murder of a woman to whom the accused had been engaged. The accused had been born in Chile and was engaged to marry the deceased who was Colombian. The accused killed the deceased in their bedroom by stabbing her with a knife some 22 times. On the first trial of the accused, Hampel, J. left the issue of provocation to the jury. When the applicant came to be tried a second time the Crown did not oppose the issue of provocation being put to the jury. The second judge, however, ruled that provocation was not open to be left in the limited circumstances of the case. The evidence which was put forward to suggest provocation included a confession of infidelity, a statement that the deceased did not propose to be faithful to the accused in future and a taunt. Reliance was placed upon Chilean cultural issues which were said to include the importance of Chilean culture to the applicant, superstitions in Chilean/South American culture, and jealousy in the applicant's relationship with the deceased, evidencing the passion and intensity of the South American romantic culture. The Court of Appeal upheld the conviction, holding that the judge was correct in not putting provocation to the jury, although Callaway, J.A. dissented on different grounds.[24] In Leonboyer there was no evidence given that the applicant was in any position of particular vulnerability to the sexual taunt, and the cultural evidence upon which the applicant relied said very little as to the gravity of the supposed provocation in relation to him.

In the present case the provocative conduct of the deceased was said to have been constituted by the following: that she spat at or on the applicant; that she had engaged in a relationship with Nasir Haba during her cohabitation with the applicant, and had continued her relationship with Nasir Haba after leaving the applicant's home; that she brought shame and humiliation upon the applicant in the Melbourne Chaldean community by virtue of her relationship with Nasir Haba; that she acted to ensure the removal of the applicant from Australia in circumstances where the applicant was led to believe this was being done out of spite; and that she had stolen the applicant's passport and jewellery in circumstances where the applicant believed he faced imminent deportation and needed his passport.

In assessing the gravity of the provocation to the applicant it was put that the following matters said to be established in evidence were relevant. The applicant was a Chaldean Christian, who had been born in England but returned to Iraq at the age of four and lived there until he was 35. The applicant and the deceased had been married in Iraq. The applicant migrated to Australia to live with the deceased in 1999. They lived in Meadow Heights and Glenroy for some time. They lived there as part of and were active in the Chaldean Iraqi community of Melbourne and the applicant lived by way of Chaldean culture and traditions. There was evidence that the Melbourne Chaldean Iraqi community is very small and close-knit, and is geographically concentrated around Meadow Heights and Glenroy, and the religious life of the community is concentrated in one church. Nasir Haba was also a member of the Chaldean Iraqi community, and he and the applicant were friends. The relationship between Nasir Haba and the deceased was an insult to the applicant within Chaldean Iraqi culture. By virtue of the relationship between Nasir Haba and the deceased the applicant was the subject of rumour and discussion within the Chaldean community. This caused the applicant humiliation. The applicant himself was criticised and stigmatised by members of the Chaldean community as a result of the relationship between the deceased and Nasir Haba.

Mr Tehan, who appeared for the applicant, submitted that the following matters of Chaldean culture had been established in evidence and were relevant. Chaldeans live under a code of strict traditions and customs that have continued for many hundreds of years. In Chaldean tradition marital fidelity is of paramount importance. Divorce is not allowed nor remarriage upon the death of one of the spouses and no distinction is drawn between married parties who live together and those who live apart. In Chaldean tradition the wife's marital infidelity is a source of strong, social disapproval not only for the wife but for the husband with the potential to result in a lifelong smear upon the husband who is considered responsible for the acts of his wife. There was evidence also that the act of a wife spitting at or upon her husband is an act of almost unthinkable insult of such gravity that there would be an expectation that the wife would be beaten or killed if not by her husband then by her family.

Mr Tehan submitted that the judge erred in failing to leave provocation to the jury. He submitted that there were significant similarities between the facts in Abebe and the present case. Next he submitted that the judge failed to consider certain evidence and gave insufficient weight to such aspects, preferring contradictory evidence, in determining the version of events most favourable to the accused. Thirdly, it was submitted that the judge gave inappropriate and excessive weight to answers given by the applicant in his record of interview. Next it was argued that the judge failed to put the version of events most favourable to the applicant with respect to the suggestion that the deceased had spat upon him.

For the Crown, Mr McArdle argued that in considering the issue of provocation, the emphasis in this case was on the objective limb. He submitted that the applicant had chosen not to give evidence at his trial, and the material accordingly available was simply the applicant's record of interview and evidence from witnesses concerning cultural laws. He relied upon the record of interview as being particularly significant in the absence of evidence from the applicant, since it indicated that the immediate cause of the attack upon the deceased was her reluctance to hand over her mobile phone in addition to her bag as a pledge to meet the applicant the next day. He argued that there was no mention of sexual activity, infidelity or taunts. It was put that the judge had been correct to distinguish the decision in Abebe, arguing that in any event one could not use the facts of a different case as a template for the case under consideration.

It is convenient to consider first the argument that the judge erred in failing to consider the version of events most favourable to the applicant when considering whether to put the issue of provocation to the jury. The prosecutor at the trial submitted that the decision in Abebe was distinguishable, in that in that case what was happening in the community, the rumours of the relationship, and the shame and humiliation had all become highly significant because of what happened in the particular incident leading to the death of the deceased. The sexual aspect in Abebe, it was argued, was very well and clearly connected back to what was happening in the community, the shame and humiliation. The contrast was then drawn with the present case, where it was said that the trigger was the refusal to hand over the phone, and the victim spitting at the applicant. It was vigorously argued that in the record of interview the applicant had not claimed that the sexual aspect, the shame and humiliation, had had anything to do with the applicant using his knife on the deceased.

The judge clearly accepted this argument, for his Honour said[25] -

"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."

See also the passages from his Honour's reasons set out in paragraph [14] above.

There was, however, a substantial body of evidence linking sexually explicit conduct in the present case with the cultural background of the accused. Furthermore there was some evidence that the background events, as the judge described them, did not cease in April 2001. Similarly there was at least some evidence which contradicted the view taken by his Honour that by late April the applicant's major concern was for the return of the gold jewellery and the U.K. passport. For example, Gemi Hanna gave evidence that about a week before the deceased was killed, the applicant rang his home telephone and said that he had seen his wife that day with Nasir Haba. The applicant had then spoken to the deceased on the telephone. Gemi Hanna said that on that occasion the applicant from his tone of voice and attitude was "mad, very mad". The deceased's sister, Hanna Kalandos, after initially disagreeing, said that a woman who is not divorced could not have or be seen to have a boyfriend. She agreed that a husband of a wife from whom he is separated would consider the suggestion that his wife was seeing another man as a very bad thing. She said that one day before the killing, the applicant contacted the deceased's brother Nabil and spoke about the fact that the deceased had a boyfriend. Nasir Haba said that on many occasions the applicant threatened him. The last time the applicant rang him was about ten days before the victim was killed. On that occasion he was also threatening him and swearing at him. Haba confirmed that there was a lot of gossip within the Iraqi community about himself and the deceased, although he claimed that there was nothing between them. He agreed that in the month or two before the death of the deceased, he was aware that the applicant was "going increasingly crazy" about the situation between himself and the deceased. He said he did not know what sort of problems there had been between the couple. Salam Allos said that about ten to fourteen days before the death of the deceased the applicant asked him to help him find where she was living so that he and the deceased could reconcile. They searched for the deceased by car and eventually found her, and when the applicant went to speak with her he noticed that the deceased was very frightened. The applicant was seen by him to be talking normally. On returning to the car he described the applicant as being very much aggrieved. In cross-examination he said that the rumours about the applicant and his wife got stronger and stronger within the Iraqi community and he said he was very concerned that the cultural values in this situation could lead to the killing of the deceased. He said he was very worried about this because "all doors had been closed" to the applicant. Mrs Souad Kakos gave the following evidence -

"Q. We are talking about a woman spitting at her husband, right. First of all, I think you have said to us, but is it the fact that this would humiliate him? A. It is a big insult, it is not a normal insult. Q. It is not a normal insult? A. It is a big insult. Q. It is a very serious insult for a woman to do that? A. Very, very. Especially a married woman, a woman with a husband. Q. If such a woman, that is, a woman with a husband, spits at her husband, would there be any, within your beliefs, would there be any expectation of what he should do? A. Yes, yes. Q. What would that be? A. He would either kill her or kick her out of the house and send her to father's, it depends on the individual, but most of the times he would kill her. I don't mean that killing her to death, but like beating her to death, like breaking her arm or her leg, something like that. Q. Is there any worse insult within your community to do to a husband that is, than to spit at him? A. Only if she is cheating him and spitting in his face, that's all."

It is apparent from these pieces of evidence that the conclusions drawn by the judge set out in paragraphs [14] and [28] above represent considerably less than the most favourable case from the viewpoint of the applicant. His Honour was plainly relying in large measure on the answers given in the record of interview. But there were, with respect, good reasons why the record of interview may have presented rather less than the version most favourable to the applicant's case. In the record of interview the applicant had indeed placed little or no emphasis on the earlier causes of conflict between the couple as influencing his fatal conduct in recounting the events of the last afternoon. But the record of interview was conducted by way of interpreter. The original Arabic interpreter said that he believed that the applicant may not have been understanding his translations. Although a second, Assyrian, interpreter was later introduced, problems of interpretation continued. The applicant said he was mentally tired and very ill. But, most important of all, on several occasions the applicant attempted to speak about past events, but was either told by the officers present that the interview related only to matters of that day, or was cut off when trying to speak of earlier matters. For example, at one point the interview went as follows -

"Q.58 Would you like to tell me what happened. A. Would you like to know the story from the beginning? Q.59 Well, what - what I might do is get you to tell me what actually took place today, starting from this morning. A. Only just today? Q.60 Just for starters, today, and then we will talk about other things."

In my view, with great respect, the judge placed too much weight on the record of interview.

In any event the applicant was entitled to have the issue of provocation considered on the evidence most favourable to him. That evidence was to be found not in the record of interview, but in the evidence which was part of the Crown case. For this purpose, the applicant is of course entitled to rely on the evidence called by the Crown, as is apparent from Parker v. The Queen[26]. When Mr McArdle submitted that great weight should have been given to the record of interview, and that it was important that the applicant did not attempt to supplement his record of interview by giving evidence, Batt, J.A. drew the attention of the Court to what was said by Dixon, C.J. in Parker v. The Queen[27], where his Honour said in relation to a question of provocation -

"The point is that the issue before the Court of Criminal Appeal was whether by any possibility the jury might not unreasonably discover in the material before them enough to enable them to find a case of provocation. The selection and evaluation of the facts and factors upon which that conclusion would be based would be for the jury and it would not matter what qualifying or opposing considerations the Court might see; they would not matter because the question was, ex hypothesi, one for the jury and not for the Court."

Not dissimilar considerations arose in Shea[28], where Crockett, J. said -

"It is perfectly true that in his statement to the jury, the applicant made no reference to his having lost his self-control; still less that in doing what he did he did it under the effects of a loss of self-control. The authorities are quite clear. There is no necessity for any such evidence to be given directly, the matter being one for the jury to determine as to whether, notwithstanding any express assertion by the accused person to that effect, the fact might not remain that he was, at the relevant time, acting under the effects of a loss of his self-control: see Van den Hoek[29]. Furthermore, the account which the applicant did give in his statement might be described as one which suggested that he was in full control of his faculties, that he was reasoning what it was that he wanted to do and why he wanted to do it, namely, to get to the hotel as quickly as possible in order to ensure that his wife did not get into any undue trouble. Again, I think that that consideration is immaterial. Indeed, it was quite open for the jury to refuse to accept that as a reason put forward for his return to the hotel. He had ample incentive to give such an incorrect account in order ultimately to provide some support for the plea of self-defence which he raised for consideration in the course of his defence."

It was no doubt to authorities such as Parker that Crockett, J. was referring in the passage from his judgment in Shea just quoted.

In the present case there was much evidence that the alleged affair between the deceased and Nasir Haba had brought shame and humiliation to the applicant and caused him much distress. All of this would have provided a basis for suspecting that the applicant in speaking to the police may have down-played or lied about the deceased's relationship with Nasir Haba.

In all these circumstances I think that the judge, with the greatest of respect, clearly did not consider the version of events most favourable to the accused in deciding not to leave provocation to the jury.

In his reasons the trial judge said that[30] "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."

Although the Crown did not initially raise this issue in written submissions, the Court invited the parties to make submissions as to whether in the circumstances of this case provocation might not have been available as a defence to murder on the ground that any provocation was self-induced.

Both Mr Tehan and Mr McArdle in response made helpful submissions on the subject. Mr McArdle relied on the fact that the applicant sought out the victim in defiance of an intervention order, carrying a knife and made demands for the return of the passport and jewellery. He argued that any provocation had been caused by the actions of the applicant and accordingly that such provocation had been self-induced. He argued that the preponderance of authority in Australia was that self-induced provocation was not a defence.

The term "self-induced provocation" has been used to refer to at least two different situations. First, and most obviously, an accused may have actively goaded a victim into a provocative response, in order to use that provocation as an excuse to kill. An early example is the case of Mason[31]. The accused had been fighting with his brother. The brother offered to play cudgels with the accused, which the latter accepted. But after the brother hit the accused twice with a cudgel, the accused drew a sword from under his coat, and killed the brother. The Court held that the crime was murder, not manslaughter, because there was "plainly a provocation sought on his part, that he might execute the wicked purpose of his heart, with some colour of excuse."

A Victorian statement of the rule in this form is to be found in R. v. Newman[32], where Barry, J. in a charge to the jury said -

"It is not permitted that a man should seek out his enemy and await some provocation in order to use that as a pretext for slaying him. The provocation must be of a grave kind, and it must actually influence the conduct of the person charged. It will be seen that, in the circumstances I have supposed of a man deliberately seeking out an enemy and merely using provocation as a pretext for killing his enemy, there is no honest acceptance of the position that has arisen. In reality what has happened is that the person who does the killing under those circumstances has exhibited considerable malignity against his enemy, and has merely sought the conduct of his enemy for the purpose of inflicting the killing."

In cases where the accused deliberately incites the provocation, acting with premeditation or actual foresight, the accused cannot be said to act as a result of a loss of self-control. In such circumstances the accused had a pre-existing mental state for murder, at a time before the victim's allegedly provocative actions occurred. The authorities to which I have already referred show that in such circumstances the accused should not be entitled to rely on the defence of provocation.

The second situation to which self-induced provocation might be said to refer is where the accused by his conduct risked an attack which might constitute provocation or where the conduct of the deceased was a predictable consequence of the accused's prior conduct. The first case in which it was suggested that an accused could not rely on the predictable consequences of his actions was Edwards v. R.[33] The leading case in Victoria on the subject is R. v. Allwood[34]. The accused and the deceased had lived together as man and wife for a period of four years, and had a daughter aged two. The deceased left the appellant and went to live with another man, taking the child with her. She rejected the accused's attempts at reconciliation and offer of marriage. The accused took a rifle to the house where she was living and renewed his offer of marriage. He questioned the deceased about her sexual relationship with the other man. They quarrelled and the accused fired four shots which struck the deceased, and then shot himself in the head. After the shootings, a note which had been written earlier in the day was found in his pocket. It said "I am personally guilty of this crime being in sane mind. All women should take notice of this letter never take a man's family away from him. He works hard to get it and maintain it." The trial judge refused to allow provocation to go to the jury, and the Court of Criminal Appeal supported this view. Crockett, J. said[35] -

"The applicant sought out the deceased. He was set upon a confrontation. Not only was he determined to speak with her but he selected the subject-matter and controlled the course of the conversation. He knew the answers that could be expected from her. He wished merely to goad her into giving them - no doubt to give emphasis to what he believed was justification for his imminent suicide. Knowing that she had left him for Donnelly he must have been aware that sexual relations had occurred between them, not only, of course, after they commenced to live together, but also probably at about the time of, or shortly before, their departure from the applicant's home. If then to hear her later admit those relations was provocative, it could not be provocation in law, seeing that it was the applicant who forced her to make those admissions. Even if it was open to the jury to consider that the applicant could have construed the words as an imputation of the applicant's sexual inferiority to Donnelly, the applicant cannot be heard to claim that the words had provoked him. His own earlier hope, boldly expressed by letter, that she was now getting the gratification she may have craved demonstrated that if the deceased's words carried the imputation contended for they could not have possessed any element of surprise and fell into the category of words that the applicant was forcing the deceased to utter ... only if the hostile reaction goes beyond the reasonably predictable can provocation that is itself provoked be fit for consideration by a jury."

All but the last sentence of the passage just quoted might be thought to relate to circumstances where the applicant actively goaded a victim into a provocative response as a pretext or excuse. Only the last sentence supports the proposition that conduct risking provocation may render provocation unavailable. The whole passage is obiter since the discussion had been stated to be unnecessary and was included only because the ground had been fully argued and the matter might become relevant on retrial. Similarly in R. v. Borthwick[36] Crockett, J. said that -

"Provocation induced in turn and by the provocative action of the accused person is inoperative in law to produce a defence of the kind which it was suggested should have been left to the jury to consider in the present case."

As in Allwood, this passage also was obiter, and it was unnecessary to the decision since the Court found that the facts were clearly incapable of forming a foundation for a defence of provocation.

The question whether conduct which risks causing or in fact causes (whether or not the result was predictable) a victim to act in a provocative way should prevent a defence of provocation being available remains undecided. As Vincent, J.A. observed in argument in the present case, one of the problems is that it is difficult to recall a case in which provocation was put to the jury in which there was not an element of inducement on the part of the accused.[37] Frequently, cases of provocation involve an angry male confronting a supposedly unfaithful wife or partner. Professor Morgan, in her article already cited[38], with every justification takes the view that the provocation defence is imbued with gender bias. But while the Victorian Law Reform Commission has argued[39] that the defence of provocation ought to be excluded in cases where the accused deliberately places himself in a situation that is likely to be provocative, the New South Wales Law Reform Commission[40] takes a different view, that -

"An accused in such a situation should not be automatically excluded from pleading the defence of provocation. The underlying basis for the defence of provocation is that the accused lost self-control and acted without premeditation. It follows that a person should not be automatically excluded from raising the defence when that person acts as a result of a loss of self-control and without premeditation, but ought to have foreseen that the victim would retaliate. To inject a test of reasonable foresight into the defence of provocation would be to add an unnecessary complication to the defence, and arguably would run contrary to a view of the defence as an excuse for loss of self-control."

It is, I think, not necessary for the purposes of this case to decide which of the foregoing views is correct. Here the applicant had approached the deceased in possession of a knife and in defiance of an intervention order, but he gave as a reason for carrying the knife his concern that he might need to defend himself from his brother-in-law. He had been told he was shortly to be deported, and he said in the police interview that he believed the deceased had his passport and a necklace belonging to him, which she had wrongly taken from his premises. He was anxious to obtain their return. According to his statements in the record of interview, the deceased promised to return them the next day. He asked her to give him her mobile phone as an assurance that she would in fact meet him to do so. His case was that when he asked for the mobile phone, she refused and spat on or at him.

In my view the only evidence which required the issue of provocation to be left to the jury was such evidence as there was that the deceased spat on or at the applicant, taken with the evidence going to the cultural significance of such conduct, such as that given by Mrs Kakos. If the jury were left with a reasonable doubt as to whether this event had taken place, all the other evidence of alleged provocation upon which Mr Tehan relied as aforesaid then became relevant. But if the jury were satisfied that the deceased had not spat on or at the applicant, the evidence before them could have established no more than that the applicant met the deceased, that he asked her, and she agreed, to give him his passport and necklace the next day, and that he then asked her, but she refused, to let him have her mobile telephone. Notwithstanding the earlier allegedly provocative behaviour, that refusal could not, on any view, have been said to raise the issue of provocation.

It was not suggested in argument that the applicant acted with premeditation or actual foresight of what occurred. Nor does it seem to me, on the facts set out above, that it could be said that his behaviour risked, or made it predictable, that the deceased would act in the manner he alleged. There was no basis for suggesting that if the deceased had given him her mobile telephone, as he requested, the meeting would not have passed off peacefully. On the other hand, if the deceased had simply refused to pass over her mobile telephone, the predictable consequence was that the applicant would seek some alternative assurance from her that they would meet the next day.

Insofar as Mr McArdle's submissions relied on the statement by Crockett, J. in R. v. Borthwick (supra) that "provocation induced in turn by the provocative action of the accused person is inoperative in law to produce a defence" of provocation, that judgment was delivered extempore, no authority was cited for it, and the statement was (as I have said) obiter. With the greatest of respect, in light of the authorities previously discussed, I doubt whether Borthwick represents a correct statement of the law on provocation. As Watkins, L.J. said in Johnson[41], although dealing with s.3 of the U.K. Homicide Act 1957, "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".

Accordingly, the trial judge was, I think, correct in ruling that the appellant's conduct would not necessarily have prevented a defence of provocation being advanced.

On the version of events most favourable to the applicant, it would, in my view, have been open to a jury, acting reasonably, to fail to be satisfied beyond reasonable doubt that the killing was unprovoked in the relevant sense. Accordingly provocation should have been put to the jury.

The application for leave to appeal against conviction should be granted, the appeal allowed, the conviction and sentence set aside and the applicant retried. It is unnecessary therefore to deal with the application for leave to appeal against sentence.

I should add that the judge added a rider to his reasons[42] which he said was not part of his ruling. Since these paragraphs were not part of his Honour's ruling, I need only say that the comments suggest first that there is a particular category of case in which there ought to be a presumption against leaving provocation to the jury; and secondly that the relevant gravity of conduct, in the context of relationship breakdown, is to be judged by the ordinary person test without reference to the ethnicity of the accused. If this is a correct interpretation of these paragraphs, they are in my respectful view inconsistent with the test propounded in Masciantonio which was set out in paragraph [15] above. I think a preferable view was that stated

earlier by his Honour[43] that "In any event each case will depend upon its individual facts."

I have had the benefit of reading in draft the judgment of Charles, J.A. For the reasons his Honour gives I respectfully consider that, in deciding whether provocation should be left to the jury, the trial judge did not consider the version of events most favourable to the applicant. The question whether on that version it was open to the jury to find a case of provocation has caused me more difficulty, especially when it is realised (as Mr Tehan conceded) that Mrs Kakos's references to killing were not to be taken literally. In the end, however, I have concluded that such a finding was open to the jury. I agree in the order Charles, J.A. proposes.

There is no need to recite the evidentiary background against which the trial judge's decision that the issue of provocation was not to be left to the jury was made. That has been set out with considerable care in the judgment of Charles, J.A. Nor is it necessary to address in any detail the applicable principles of law for the same reason.

The task of a trial judge in determining this question is, as Charles, J.A. pointed out, a remarkably difficult one as the cases to which he referred amply demonstrate. Eames, J.A. in the passage quoted by him[44] has drawn attention to the very different functions of the judge and jury in a criminal trial, emphasizing the "grave responsibility" assumed in withdrawing the issue. But the judge does have a role to play and must assume that responsibility in an appropriate case.

Although the judge is, of course, required to put before the jury any defence

that may be available to an accused on the view of the evidence most favourable to him, even in the face of the express disavowal of the particular defence, it is not required that the judge instruct the jury with respect to every possibility, however remote, from ordinary human experience or community standards it may be.[45] Many theoretical possibilities and arguments are considered and discarded by the judge and counsel alike in the day to day conduct of criminal trials. Often, as a consequence of shared understandings and experience, if such possibilities are referred to at all, it is only in passing and briefly. Counsel regularly make well-informed and sensible judgments about the wisdom of pursuing particular lines of approach in the justified belief that they may simply invite rejection by the jury not only of the specific possibility or argument, but the defence in general. Ultimately there must be, and fortunately there usually is, a sense of reality about the process.

From the perspectives of the trial judge and jury alike, the respective roles performed by them in a criminal trial becomes increasingly complex and onerous. The number of issues and volume of material with which they must deal on occasions can be seen to strain the process to its limits, and even cast doubt upon the confidence with which the outcome can be accepted.

The provision of instructions is designed to ensure that the jury understand what it is that they have to decide, what material can or cannot be taken into account in arriving at their decision and the manner in which that material may be used. Often, as a trial judge, I experienced concern about the capacity of jury members to follow and comply with the plethora of sometimes complicated instructions that I was obliged to give them. I am confident that this view would be generally shared by most, if not all, of those currently performing that role. It is not simply a question of the protraction of an already complex and costly process that is involved, but much more importantly the reliability of the jury verdict and the respect with which it is regarded in the community. It is clearly inappropriate for a judge to address issues that are not properly before them. To do so attracts the risk of the introduction of confusion and the perception of unreality to which I have earlier adverted.

With respect to the question before the trial judge in the present case, it is well to bear in mind the context within which his decision was made. The issue of provocation only arises in circumstances in which the jury would be entitled to find, beyond reasonable doubt, that all of the other elements constituting the crime of murder were present; in other words, where it was open to the jury to find that the accused brought about the death of the deceased by the commission of conscious and deliberate acts, performed with murderous intent. There was overwhelming evidence, in this case, to support the finding that the applicant attacked and stabbed his wife with the intention that she would die.

Where then does the concept of provocation fit and what is its area of operation? The law has long recognized that circumstances can arise in which a person of ordinary firmness of mind and powers of self-control might, by reason of a loss of self-control induced by the provocative behaviour of another, breach what is perhaps the most fundamental principle of human society - "Thou shalt not kill". The concept provides to the law a degree of flexibility such that in such circumstances the crime is reduced from one of murder to manslaughter. However, the law has also taken the view that there must be some sensible limits imposed upon the area of operation of this concept which otherwise could provide a partial justification for the fatal expression of uncontrolled anger and aggression. It is confined to situations in which there exists a reasonable possibility that there may have been an actual loss of self-control. Additionally, there must be an appropriate relationship between the perceived provocation and the resultant killing. That relationship is assessed by reference to the response which might have been induced in the precise circumstances that existed at the time in a person with ordinary powers of self-control.[46]

As I have indicated, and bearing in mind the strictures within which the decision must be made, before the issue can be properly left for consideration by the jury, the judge must determine, inter alia, that there is evidence upon which it would be open to them to conclude that the prosecution had not excluded beyond reasonable doubt the possibility that an ordinary person might have acted as the accused did in the circumstances.

In the present matter, there was evidence that the applicant was almost certainly deeply concerned and offended by his view of the relationship between Nasir Haba and his wife and his awareness of the rumours which were circulating in their ethnic community concerning that relationship. The trial judge did not ignore that background and specifically decided that:

"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." (Emphasis added.)[47]

It must also be accepted for present purposes that, upon being confronted by him, the deceased resisted and spat at him, although, I should add, none of the witnesses observed any such incident, and the likelihood that she would insult him in this fashion in the circumstances is, I would suggest, at least, doubtful when regard is had to the evidence that she feared violence at his hands. Be that as it may, in this context, I observe that the evidence of Mrs Souad Kakos fell far short of suggesting that even for a "cheating" wife to spit at her husband constituted an insult of such seriousness that an ordinary person with the cultural background of that applicant and in his situation might be provoked to stab her twenty times with a kitchen knife. Her evidence was as follows:

"Q. We are talking about a woman spitting at her husband, right. First of all, I think you have said to us, but is it the fact that this would humiliate him? A. It is a big insult, it is not a normal insult. Q. It is not a normal insult? A. It is a big insult. Q. It is a very serious insult for a woman to do that? A. Very, very. Especially a married woman, a woman with a husband. Q. If such a woman, that is, a woman with a husband, spits at her husband, would there be any, within your beliefs, would there be any expectation of what he should do? A. Yes, yes. Q. What would that be? A. He would either kill her or kick her out of the house and send her to father's, it depends on the individual, but most of the times he would kill her. I don't mean that killing her to death, but like beating her to death, like breaking her arm or her leg, something like that. Q. Is there any worse insult within your community to do to a husband that is, than to spit at him? A. Only if she is cheating him and spitting in his face, that's all."[48]

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

The evidence of a witness Salam Allos, a friend of the applicant, is also informative on this aspect. At one point in his evidence-in-chief, the following exchange took place:

"Was it part of the law as you understood it and your culture back in Iraq that a man could kill his wife if she had an affair?---Well, the laws of my country, they do not say that anybody can kill his wife for nothing unless he's got a proof or he can prove that, it's a matter of investigations and material witnesses and evidence, it's not that simple, nobody can kill his wife for nothing. I am not saying for nothing, I am asking you about if she had an affair, she had sex outside her marriage?---Do you want me to answer this from my own point of view or how - if you are asking about my own point of view or how - if you are asking about my own point of view, I would answer you. What you understand of the culture and law of the country you came from. INTERPRETER: Sorry, could you repeat that for me? PROSECUTOR: What he understands - what you understand of your own culture and law in Iraq, from where you came?---Well, I know that the law is introduced so that there would be a justice among people. And the strong won't be able to oppress the weak. And if there was any injustice done to anybody, it could go to law and the law would bring them there, would give them justice, that's what I, that's my understanding about law."[49]

A little later, however, the witness said that if he established that his wife was committing adultery he, personally, would not only kill her but her father also. Finally, in re-examination, the following evidence was given:

"Yes. But if the couple are living separately, they are living apart, and the wife sees another man, does she get into trouble?---OK - I answered your question, I told you it depends on the level of education of the individual himself and the way he sees things. If he saw her, like, sleeping with him, well, as far as I am concerned, as I told you, I would kill her and kill her father also. All right. PROSECUTOR: If the person - if the husband believed that his wife was - - - COUNSEL: That's really getting into realms which this witness probably can't answer. HIS HONOUR: I think he might have, I think he has - wait a moment. COUNSEL: I understand what my learned friend is asking, but that's really beyond what this witness, in my submission, can answer. HIS HONOUR: I suspect we have got the answer if we go back through the questioning. COUNSEL: That's right. HIS HONOUR: Because I think the answer is, you need a bit of cogent evidence, not just rumour, that there is an affair going on. PROSECUTOR: Then you can take appropriate action. HIS HONOUR: As I understand it."[50]

Each of these witnesses spoke of the cultural expectations concerning the husband's response in such circumstances. It is not to the point that as a matter of cultural background an individual may regard himself as entitled to kill his unfaithful or insulting wife, or her father for that matter, or to beat her or break her arm or leg. Importantly, neither of the witnesses dealt with the likelihood, or otherwise, that an ordinary person with that cultural background may have lost control and acted as the applicant did; the central notions underlying the availability of the partial defence of provocation. The closest that Mrs Kakos came to that suggestion was her remark that it "depends on his nerves". Mr Allos said at one point that the response of the individual may be influenced by his or her level of education. Again he did not suggest that an ordinary person, operating according to the cultural mores of his community, might have less control and act in the fashion of the applicant. If anything, he seemed to be at pains to communicate the notion that individuals would be expected to react rationally according to those mores.

The uncontroverted evidence in the trial demonstrated that the applicant was becoming increasingly angry over the period leading to his wife's death. She was clearly frightened of him. He threatened Nasir Haba on several occasions. He rang the sister of the deceased a number of times, threatening and swearing. It appears that on one occasion he went to the home of this witness with a knife. She was sufficiently concerned to secure police assistance. When finally, in flagrant breach of an intervention order designed for her protection against his potential violence, he approached the deceased, he was carrying a kitchen knife and was observed by witnesses to block her passage. He told the police that he approached her not as a consequence of his concern about the relationship between the deceased and Nasir Haba, upsetting and humiliating as that may have been, but because, faced with the imminent prospect of deportation, he needed to regain possession of his passport. He was angry and she was scared, as he acknowledged in his police interview,. It is possible that she defied him and perhaps spat at him. His response by any reasonable measure was grossly disproportionate and certainly could not be attributed to a person with ordinary powers of self-control. He said that he became hysterical. He attacked her and repeatedly stabbed her causing her to fall to the ground. He knelt beside her and continued the attack. Witnesses called upon him to stop. He looked at them and then stabbed her twice more before hurrying away. Altogether he inflicted 20 stab-wounds. There were eight defensive injuries to her upper limbs and her chest cavity was penetrated six times.

The trial judge, who I should add, was one of the most experienced members of the Bench dealing with such cases, directed his mind to the relevant principles of law to be applied in dealing with this matter. In his ruling, after setting out a lengthy passage from the joint judgment of the majority in Masciantonio, he stated[51]:

"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[52]; R. v. Parsons[53]; R. v. Abebe[54]; and R. v. Leonboyer[55]. 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 deceased, 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. In answer 65, his account continued:

`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 was arrested shortly thereafter. 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."[56]

In my view it was clearly open to his Honour, who clearly had regard to all of the relevant legal principles and evidence addressed in the trial including that concerning the cultural background of the applicant, to conclude in effect that, as Brooking, J.A. found in Parsons:

"no reasonable jury could have failed to be satisfied beyond reasonable doubt that the applicant's reaction to the victim's conduct fell below - indeed, fell a long, long way below - the minimum limits of the range of powers of self-control that must be attributed to the ordinary person."[57]

[1] [1998] 2 V.R. 19 at 20 per Ormiston, J.A. and at 29-30 per Hedigan, A.J.A.

[6] By Brennan, Deane, Dawson and Gaudron, JJ., McHugh, J. dissenting.

[13] Pemble v. R. [1971] HCA 20; (1971) 124 C.L.R. 107 and the cases cited in R. v. Thorpe (No. 1) [1998] VSCA 13; [1999] 1 V.R. 326 at 330-331.

[14] Stingel v. R. [1990] HCA 61; (1990) 171 C.L.R. 312 at 334; Masciantonio v. R. 183 C.L.R. at 67-68.

[16] For example, in R. v. Parsons [2000] VSCA 15; (2000) 1 V.R. 161, Brooking, J.A. at 166-167 said that "To hold that provocation arose in this case would be to encourage savagery at the expense of civilised behaviour".

[18] (2002) 5 V.R. at 220. Eames, J.A. was speaking in dissent, although not, I think, dissenting on this point.

[21] Batt, J.A. and O'Bryan, A.J.A., Eames, J.A. dissenting.

[27] 111 C.L.R. at 616. Dixon, C.J. was dissenting, but his opinion was upheld in Parker's direct appeal to the Privy Council, see [1964] UKPCHCA 1; (1964) 111 C.L.R. 665 at 680; [1964] A.C. 1369 at 1390.

[31] (1756) Foster 132. See Ashworth, Self-Induced Provocation and the Homicide Act [1973] Crim.L.R. 483, esp. at 485.

[33] [1972] UKPC 1; [1973] A.C. 648 at 658. The notion of self-induced provocation has been considered in detail in at least three articles - Ashworth (op. cit.), Ian Leader-Elliott, Sex, Race and Provocation: In Defence of Stingel, (1996) 20 Crim.L.J. 72; Jenny Morgan, Provocation Law and Facts: Dead Women Tell No Tales, Tales Are Told About Them (1997) 21 Melb. Uni. L.R. 237.

[36] Court of Criminal Appeal of Victoria, unreported, 18 March 1991 at p.3. But see R. v. Thorpe [1998] VSCA 13; [1999] 1 V.R. 326 at 333; and R. v. Johnson [1989] 1 W.L.R. 740, at 744.

[37] See, e.g., The Queen v. Dutton (1979) 21 S.A.S.R. 356; The Queen v. Radford (1985) 42 S.A.S.R. 266; R. v. Gardner (1989) 42 A.Crim.R. 279; and R. v. Masciantonio [1995] HCA 67; (1995) 183 C.L.R. 58.

[39] Victorian Law Reform Commission Options Paper, Defences to Homicide, (2003) p.72 at para.[3.90].

[40] New South Wales Law Reform Commission Report, Partial Defences to Murder: Provocation and Infanticide, October 1997, pp.65-66, paras.[2.109-2.110].

[45] R. v. Tuncay [1998] 2 V.R. 19 at 30 per Hedigan, A.J.A.

[57] R v Parsons [2000] VSCA 15; (2000) 1 VR 161 at 166 per Brooking, J.A.

At a glance

Court

Decision date

Before

Source

Judgment (147 paragraphs)

Parties

Cases Cited (1)