68 For the reasons earlier given, I would reject the contention that in a case of manslaughter the jury have to be agreed on the basis of liability for manslaughter. It is sufficient if all the jury are agreed on a verdict of manslaughter and it does not matter if some travelled the provocation route and others found that there was an unlawful and dangerous act. This accords with the approach that has been taken by the courts over many years.
69 In any event in the present case any jurors who were satisfied beyond reasonable doubt that the appellant intended to kill the deceased or inflict grievous bodily harm, but who were not so satisfied that the Crown had negatived provocation, must have been satisfied that there had been an unlawful and dangerous act. On any view, a knife was presented at close quarters by the appellant to the deceased and the jury rejected self defence.
70 At the trial counsel for the accused did not ask the judge to correct, alter or add to the directions which he had given, The judge was not asked to give directions along the lines now contended for by the appellant. I would stress the importance of these points being taken at the trial. It is unnecessary, however, to pursue that matter in the present case.
71 I would reject Appeal Ground 1.
72 Appeal Ground 2 reads:
That the trial judge erred in directing the jury with respect to intoxication.
73 The appellant contended that despite the appellant and the Crown not raising the question of intoxication at the trial, there was sufficient evidence of intoxication to require the judge to give a direction. No direction was given or sought as to intoxication and its effect on whether the act was deliberate and the issue of intent to kill or inflict grievous bodily harm.
74 At no stage in either his record of interview or his evidence did the appellant suggest that he was affected by liquor to the extent that the stabbing was not his voluntary act or that he lacked the intent. He did not suggest that his ability to function was affected.
75 As earlier mentioned, he estimated in his record of interview that he had 8 schooners of "new" between 10.30 a.m. and 7.30 p.m. He described himself as "Pretty sober" and said that when he left the hotel he felt all right. The appellant was not at the Woolsack hotel from about 11 a.m. to 4.30 p.m. The deceased was there drinking steadily from about 11 a.m. to 7.00 p.m.
76 Mr. Wolfgang Blau was at the Woolpack Hotel from about 5 p.m. to 6.30 p.m. He saw the appellant and the deceased sitting together and drinking. He talked with the appellant who complained about the deceased. Mr. Blau said that the appellant "was quite sober, yeah, yeah, he wasn't drunk, no." It appears that apart from briefly greeting the deceased on entering the hotel Mr. Blau did not talk to him, and that he (the deceased) remained seated at another table in the hotel. When asked if he had formed any opinion as to how drunk or sober the deceased was, Mr. Blau replied "Same stage I would say, yeah." It is apparent that Mr. Blau had little opportunity to gauge the state of the deceased's sobriety. He made a guess as his answer indicates.
77 On the evidence, the issue of intoxication did not arise. The appellant appreciated what he was doing and it could not be said that his capacity to form the requisite intent was affected. The evidence as to what the appellant did made it virtually impossible to contend to the contrary.
78 When dealing with "self defence" the judge said at SU 61:
"Next, because the question involves this particular accused, you have to take him as he is in terms of his personal characteristics and as he was at the time in terms of his mental state as you find it to have been. Now, his personal characteristics include, for example, his size relative to that of the deceased. The accused's mental state includes the extent to which he may have been affected by alcohol, for example. A person's perceptions may be affected by alcohol. You may take that into account in determining whether the Crown has established that the accused did not believe on reasonable grounds that it was necessary in self defence to do what he did. You are bound to consider whether alcohol may have affected either the accused's appreciation of the gravity of the threat which he faced or the reasonableness of his response to that danger."
In the circumstances of the present case this was an adequate direction. Indeed, given the evidence, it was a favourable direction.
I would reject Appeal Ground 2.
79 Sentence
Appeal Ground 3 reads:
(a) The sentencing judge erred in sentencing the appellant on the basis of manslaughter by provocation.
(b) The sentence was unduly harsh and severe.
80 The appellant contended that as the judge did not ask the jury for the basis of its verdict, he could not know whether his findings were consistent with the basis of the verdict. Hence the judge should have asked the jury as to the basis of its verdict. This submission is contrary to Isaacs and must be rejected. Isaacs should not be reconsidered.
81 It was further submitted that there was a great difference for sentencing purposes between the criminality involved in manslaughter on the basis of provocation and manslaughter by an unlawful and dangerous act. I do not agree. Nor did the Court in Isaacs. This not an area in which discussion in abstract terms is useful. The focus should always be on the particular facts of the case under consideration and what they reveal.
82 My study of the evidence has led me to the conclusion that there was ample material to support the judge's view that this was a case of manslaughter because of provocation. Indeed, any other finding would have been surprising.
83 In his challenge to the severity of the sentence, Counsel submitted that the judge failed or failed sufficiently to take into account
"* the age of the applicant (49 years at the time of sentencing)
* the circumstances of the offence namely that the applicant had stabbed the deceased after the deceased, a much taller and bulkier man in comparison with the applicant and who was significantly affected by alcohol at the time, had been verbally abusive and had made threats of physical violence