Ground 3
40 Hidden J did not leave to the jury at trial the issue of provocation. There was, however, some discussion between his Honour and the Crown Prosecutor prior to the commencement of the summing-up. The relevant exchanges are recorded in paraphrase at pages 465 and 466 of the trial transcript. I think that in the present case it is preferable to quote the entirety of the recorded discussion rather than to paraphrase a paraphrase. The relevant passages read:
" (The appellant's counsel at trial) indicated that he would not be relying on provocation.
The Crown Prosecutor raised the question of whether there was evidence fit to go to the jury on the question of provocation..
His Honour indicated that s 23(2) envisaged a loss of self control induced by the conduct of the deceased and that any provocative conduct of any significance came not from the deceased but from Mark Webber, although there was a little evidence of her own activity.
The Crown Prosecutor indicated that four aspects of the evidence dealt with the question of loss of self control on the part of the accused: the evidence of Mr. Acord at p 89E, Mr. Maroun at p 77, Mark Webber at p 33 and Mr. Sternbeck at p 419
The Crown Prosecutor submitted that the Crown case was one of courses of driving at a time when affected by alcohol, and being angry and humiliated as a result of the conduct of a number of people, including Miss Webber. A matter that might need to be considered was, when the conduct of the deceased was considered, did the jury consider that conduct in the context of other conduct occurring at the same time, or did the jury need to divide the conduct of the deceased from the conduct of others at about the same time, the section speaking of conduct of the deceased.
His Honour indicated that, subject to any further submissions counsel wished to make, his present view was that what s 23 required him to consider was the conduct of the deceased, not of anyone else. He was prepared to assume that he should assess that conduct in the light of the surrounding circumstances and in the light of what others were doing. Even so, in his view, the evidence was such that it could not possibly pass the ordinary person test. The evidence was such that a jury would have to be satisfied beyond reasonable doubt that no ordinary person provoked by the conduct of the deceased in those circumstances could have lost self control so far as to have formed the intent to kill or inflict grievous bodily harm.
The Crown prosecutor in addressing the first aspect of provocation submitted that there was barely sufficient evidence to go to the jury on the subjective aspect. As to the objective aspect, he agreed with what his Honour had put and submitted that the jury should not be instructed on provocation, it being no part of the accused's case that he did lose self control and formed the intent to kill or do grievous bodily harm.
His Honour indicated he was happy to add, as the evidence stood, that there was insufficient evidence to raise the issue of loss of self control in any event, quite apart from the ordinary person test required under s 23."
41 At the hearing before this Court two affidavits, both sworn by the appellant's counsel at trial, were tendered in support of the appellant's case on Ground 3. In the earlier of those affidavits the appellant's counsel at trial explained as follows his approach to the issue of provocation:
"3. Before the trial began, I considered whether provocation should be raised in relation to the murder charge. I believed that there was evidence of a loss of control by the appellant, but I did not believe that could be attributed only to the kicking of the appellant by the victim, and so did not raise provocation at the trial. The question of whether, in the circumstances of this case, provocation could be based in addition on acts done by people other than the victim never entered my mind."
42 In the later of the two affidavits counsel expanded this explanation as follows:
"3. As stated in my previous affidavit, I had decided before the trial began that I would not raise provocation at the trial. From reading pages 465 and 466 of the transcript, I believe that I did not take part in discussion of the issue of provocation at the trial except to say that I would not be relying on it. Specifically, though I had formed the view, as stated in my previous affidavit that there was evidence of a loss of self control by the appellant, I did not seek to argue that issue before the trial judge because I had decided against raising provocation for the reason given in my previous affidavit.
4. In referring in my previous affidavit to the question of whether provocation could be raised on acts done by people other than the victim, I was including any concept such as common purpose or transferred malice by which responsibility for the acts of others might be attributed to the victim."
43 The foregoing background having been set in place, it is convenient to turn next to the relevant provisions of s.23 of the Crimes Act 1900 (NSW). They are:
"(1) Where, on the trial of a person for murder, it appears that the act or omission causing death was an act done or omitted under provocation and, but for this subsection and the provocation, the jury would have found the accused guilty of murder, the jury shall acquit the accused of murder and find the accused guilty of manslaughter.
(2) For the purposes of subsection (1), an act or omission causing death is an act done or omitted under provocation where:
(a) the act or omission is the result of a loss of self-control on the part of the accused that was induced by any conduct of the deceased (including grossly insulting words or gestures) towards or affecting the accused; and
(b) that conduct of the deceased was such as could have induced an ordinary person in the position of the accused to have so far lost self-control as to have formed an intent to kill, or to inflict grievous bodily harm upon, the deceased,
whether that conduct of the deceased occurred immediately before the act or omission causing death or at any previous time.
(3) For the purpose of determining whether an act or omission causing death was an act done or omitted under provocation as provided by subsection (2), there is no rule of law that provocation is negatived if:
(a) there was not a reasonable proportion between the act or omission causing death and the conduct of the deceased that induced the act or omission;
(b) the act or omission causing death was not an act done or omitted suddenly; or
(c) the act or omission causing death was an act done or omitted with any intent to take life or inflict grievous bodily harm.
(4) Where, on the trial of a person for murder, there is any evidence that the act causing death was an act done or omitted under provocation as provided by subsection (2), the onus is on the prosecution to prove beyond reasonable doubt that the act or omission causing death was not an act done or omitted under provocation."
44 In considering the applicability of s.23 to the present particular case, it is convenient to begin by re-stating certain established propositions as explained by Badgery-Parker J in his Honour's judgment, with which Gleeson CJ and Clarke JA agreed, in Tumanako (1992) 64 A Crim R 149 at 154:
"It is clear that there is an obligation on a trial judge to leave the jury a matter capable of being relied upon by the accused by way of defence, notwithstanding that he does not expressly seek to rely upon it, and notwithstanding that his counsel has not addressed the jury upon it. The question then is whether there was evidence which, if believed, might reasonably have led the jury to return a verdict of manslaughter on the ground of provocation.
Whether there was evidence fit for consideration by the jury on a question of provocation is a question of law. In order to justify the trial judge in leaving an issue of provocation to the jury, there must be evidence on which the jury would be entitled to find a provocative incident, which in fact caused the accused to lose self-control, and which was of such nature as could have induced an ordinary person in the position of the accused to have done the same. It is proper that the words or conduct of the deceased said to be capable of amounting to provocative conduct should be considered not in isolation but in the light of the history of the relationship between them because particular acts or words which, considered separately, could not amount to provocation may, in combination or cumulatively, be enough to cause the appellant to lose his self-control in fact and may also be capable of causing an ordinary person in his position to lose self-control and resort to violence."
45 Was there in the present case "evidence on which the jury would be entitled to find a provocative incident" at all?
46 If one looks no further than the evidence touching upon the relevant conduct of the deceased herself, it seems to me that there was such evidence. There was a body of evidence, not inherently incredible, and which, if accepted by the jury, could have given rise to a rational finding of fact that the deceased, having seen her brother become embroiled in a fight with the appellant, went to her brother's assistance, calling upon the appellant to let her brother go; and striking the appellant either by slapping him with her hand or by kicking his head.
47 At the hearing of the appeal there was a deal of discussion as to whether, in the circumstances of the present case, the jury properly instructed could reasonably have attributed to the deceased provocative conduct on the part of her brother.
48 I am content for present purposes to accept as correctly stated the principle, to which Badgery-Parker J refers in Tumanako: "…………….that the provocative conduct which may sustain a defence of provocation need not necessarily be conduct of the deceased personally if it is conduct in the presence of the deceased by a person so closely associated with the deceased that it is reasonable for the jury to attribute the conduct of that person to the deceased". There was, in the present case, plenty of evidence of conduct on the part of the deceased's brother which was capable of being regarded reasonably as provocative in the relevant legal sense. I am myself unpersuaded that the available evidence shows that the deceased so conducted herself as to make it reasonable to attribute to her the provocative conduct of her brother. Her brother's provocative conduct continued for some time. The intervention of the deceased seems to me to have been, on any reasonable view of the available evidence, a very brief intervention focused upon saving her brother from injury at the hands of somebody who was, as the evidence suggests to me to have been the fact, bigger and heavier. The evidence suggests that almost as soon as the deceased intervened, she was either waved away by her brother, pulled away by somebody else, or both of those things. In such a setting, it does not seem to me to be reasonably open to say that such a limited intervention has the effect of attracting onto the deceased herself the legal consequences of the entirety of her brother's provocative conduct.
49 I think, however, that given the current state of appellate authority, and in particular the reasoning of the Court of Criminal Appeal of Victoria in Gardener (1989) 42 A Crim R 279, it would be prudent to approach the present case upon the footing that, although I myself would not have found as a fact that the deceased could be visited fairly with the consequences of her brother's provocative conduct, the aggregate effect of the individual pieces of relevant evidence at trial was such that a reasonable jury properly instructed could have taken the contrary view on that aspect of the present matter.
50 In that event, it is necessary to proceed to the next relevant question which is whether the provocative incident in fact caused the accused to lose self-control.
51 As Gleeson CJ pointed out, Finlay and Abadee JJ concurring, in Mui Ky Chhay (1994) 72 A Crim R 1 at 14:
"Emotions such as hatred, resentment, fear, or the desire for revenge, which commonly follow ill-treatment, and sometimes provide a motive for killing, do not of themselves involve a loss of self-control although on some occasions, and in some circumstances, they may lead to it. What the law is concerned with is whether the killing was done whilst the accused was in an emotional state which the jury are prepared to accept as a loss of self-control."
52 To the same effect is the following statement of Wood J (as he then was) in Peisley (1990) 54 A Crim R 42 at 48:
"More is required than anger or loss of temper or building resentment. There must, in my view, be a loss of self-control which I understand to include a state in which the blood is boiling or a state of fear or terror, in either case, to the point where reason has been temporarily suspended."
53 The fact that the appellant gave no evidence at trial is not, of course, of itself fatal to the case that he now seeks to make in this Court. That fact does have, however, the practical consequence that this Court must make what it reasonably can, as indeed Hidden J had to do at the trial, of evidence which, so far as it bears directly upon the asserted loss of self-control, in the requisite legal sense, by the appellant, is exiguous to say the very least.
54 The only recorded version of relevant events which the appellant has given is the version to be found in his recorded interview held on 16 December 1996 between the appellant and investigating police officers.
55 During the course of that interview the appellant was questioned about his recollections of the fracas which set in train the events that culminated in the death of Miss Webber, and the serious injury of both Mr. Webber and Mr. Piper. The appellant told the police the following things:
"I just remember that they were swinging and I was swinging and that was it. That's all I remember." (answer to question 49)
"There was about six or seven guys on me and no-one came. I just could hear people screaming and that was it. And then they stopped and I just got in my car and went up and did a uey and went back down and I came back up and they were all in the middle of the road." (answer to question 51)
"Question 174 - O.K. Can you describe any of these people ---
Answer - Not really
Question 174 - ---- that were involved in the fight?
Answer - I didn't see any of them.
Question 175 - Do you have any idea how old they were?
Answer - I think about the same age as me, 22, 23."
56 It is, in my opinion and to say the very least, an available inference from this material that the appellant did not identify in any particular way at all any individual person or persons of whom he was in a position to say that such person or persons had behaved towards him in a fashion which might be thought, on a reasonable view, to have been provocative in the requisite legal sense.
57 I confess to some difficulty in understanding how the appellant can be heard to say that his killing of Miss Webber is lessened in its criminal culpability by reason of the fact that she provoked him, when in fact he does not seem ever to have identified her positively as having done anything in particular that provoked him to do what he did.
58 What the evidence does show clearly, however, is that in the aftermath of the street brawl earlier herein described, the appellant did not get into his motor vehicle and thereupon drive the vehicle in a blind and irrational fashion at people standing on the roadway. What the evidence shows the appellant to have done is to have got into his motor vehicle and driven away in the direction of Victoria Road. If he had kept driving in that direction he would have quickly enough taken himself and his passenger completely away from the scene of the fracas. What he is shown to have done, however, is to have stopped during the course of that journey towards Victoria Road, to have turned deliberately around, to have driven deliberately back to the scene of the fracas, and thereupon to have driven his vehicle at Mr. Webber and Mr. Piper, not in some state where his normal processes of reasoning were temporarily suspended, but with a deliberate and cold-blooded determination to exact revenge upon those who had, in his perception, so grievously offended him. There was, so far as I can see, absolutely no evidence to show that in the aftermath of the first impact, the appellant in some way lost his self-control in the sense now relevant, and was still so out of control when he involved himself in the second impact in the course of which the deceased was fatally injured.
59 In my opinion, there was no evidence capable, if accepted by the jury, of giving rise to a reasonable finding of fact that the appellant, at the time he inflicted the fatal injuries upon the deceased, had lost his self-control in the particular sense now relevant. In Peisley, to which I have earlier referred, Wood J, immediately following the passage earlier quoted from his Honour's judgment, said this:
"Here, it seems to me that the evidence could not rise above a state of anger on the part of the appellant, arising out of an assessment by him that he was sick and tired of what he considered to be unreasonable conduct of ……..(the two particular victims in that case)…….. leading to a decision to go over and give them a good scare."
60 It is, of course, the case that the detailed facts of the appellant's case and the detailed facts in Peisley are not identical; but in my opinion it would take no great adjusting of Wood J's assessment in Peisley to describe what I would consider to be the only finding reasonably available on the question whether the present appellant did in fact lose his self-control in the relevant sense.
61 Even if I be mistaken in the foregoing conclusions: that is to say, even if the better view is that there was evidence fit to go to the jury on the requisite element of loss of self-control, it was still necessary to identify, before leaving provocation to the jury at trial, evidence which, if accepted by the jury, was capable of supporting reasonably a finding that the provocation put forward by the appellant not only caused him to lose his self-control in the relevant sense, but was such as could have caused an ordinary person in the appellant's position so far to lose his self-control as to form an intent to kill or to inflict grievous bodily harm.
62 After proper allowance has been made for the fact that the appellant was aged only a little more than 22 years at the time of the relevant incidents; and for the facts that he was seriously drunk, seriously angry, and in all likelihood humiliated by having been in large part bested in a street brawl which he himself had in large part instigated; there remained in the evidence at trial, in my opinion, nothing capable of supporting a rational assessment that an ordinary person answering to that description and in the appellant's relevant position at the time could have so far lost his reason as to have formed an intent to kill or to inflict grievous bodily harm upon those who had recently been his adversaries.
63 For the whole of the foregoing reasons I have come to the conclusion that Hidden J did not err in his decision not to leave provocation to the jury at trial.