7 The defence case at trial concentrated upon the issue of provocation allegedly offered by the victim to the prisoner. The evidence given at trial by the prisoner made a day-by-day canvass of his interactions with the victim from 29 June to 4 July. The picture that emerged was one of a domestic situation that was volatile, essentially dysfunctional, and not infrequently violent. According to the prisoner, the victim, during these few days, abused him verbally, assaulted him with a hammer on one occasion and a shoe on another occasion, and threw over him wine and cordial.
8 On one occasion, according to the prisoner, he ejected the victim from the home, only to have her break back in by smashing the window with a piece of firewood. The overall situation cannot have been improved by the tendency of both the prisoner and the victim to drink alcohol to excess. There seems to have been a heightened tension by reason of suspicions harboured by the victim that the prisoner was having affairs with other women.
9 The foregoing history as given by the prisoner in his evidence, and his alleged reaction to the accumulated effect of those events, clearly raised in the sense contemplated by s 23F(4) of the Crimes Act 1900 (NSW): "evidence that the act causing death was an act done ... under provocation as provided by sub-section (2)". It became, thereupon, the burden of the prosecution to prove beyond reasonable doubt, "that the act ... was not an act ... done under provocation".
10 That latter reference to provocation calls into operation sub-sections (1) and (2) of s 23. Those sub-sections provide:
"(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."
11 Clearly enough the jury was persuaded beyond reasonable doubt that the prisoner's criminal liability should not be reduced by reason of provocation. There is, however, no way of knowing at what stage of the relevant process of reasoning the jury reached that conclusion. There are several possibilities.
12 First, the jury might have been satisfied beyond reasonable doubt that the continuum of the victim's conduct, as described by the prisoner in his evidence, was not in fact provocative. This seems to me to be unlikely, given the nature of the relevant evidence. In so far as I have now to make my own findings of fact, I would not be satisfied beyond reasonable doubt that the acts of the victim were not provocative in fact.
13 Secondly, it is possible that the jury was satisfied beyond reasonable doubt that there had not been in fact a loss of self control as contemplated by s 23(2)(a). This, too, I would think a highly unlikely conclusion on the part of the jury. I, as fact finder for present purposes, am not satisfied beyond reasonable doubt of this possibility.
14 Thirdly, it is possible that the jury was satisfied beyond reasonable doubt that the conduct of the victim, even were the prisoner's version of it to be accepted, did not meet the test that is contemplated by s 23(2)(b). Of all the available possibilities, it is this one that seems to me to provide the likeliest key of the ultimate reasoning of the jury. I at any rate am satisfied beyond reasonable doubt that it is the s 23(2)(b) factor which defeats the prisoner's claim at trial that his criminal culpability should be limited to culpability for manslaughter rather than murder.
15 The Crown's submissions on sentence argued for a finding, for the purpose of sentencing, that the prisoner had stabbed the victim with an intent to kill, rather than with an intent to do grievous bodily harm. The Crown contended that the overall cast of the trial evidence suggested that the prisoner wanted the victim out of his life; and that he was so set upon accomplishing that end that he deliberately stabbed her to death.
16 In this connection, as indeed in connection generally with the issue of provocation, it is relevant and useful to have regard to the nature and evocation of the stab wounds to the victim's body.
17 There were four such wounds. Two of them were at locations on the victim's back. They were consistent with body movements of the kind described in the prisoner's evidence. A third wound was located on the side of the victim's neck. Dr Lawrence, who did the post mortem examination, thought that this particular wound was perhaps consistent with those same body movements. I myself consider that to be highly unlikely given the nature and location of the wound when compared with the "bear hug" movements described by the prisoner. The fourth wound was located on the front of the victim's torso. There is, in my opinion, no way of reconciling that wound with "bear hug" movements, a view endorsed by Dr Lawrence.
18 The Crown's hypothesis cannot be simply dismissed as fanciful, but I do not accept it as having been established beyond reasonable doubt. I am satisfied, however, and beyond reasonable doubt, that the prisoner, when he stabbed the victim, intended to cause her really serious bodily harm; and was, in truth, uncaring whether what he might do in fact was not injure the victim, but kill her.
19 It seems to me that, at the end of the day, the prisoner's culpability for the death of the victim is not to be measured by a minute, and necessarily imprecise, dissection of theoretical possibilities as between an intent to kill and an intent to do grievous bodily harm. The true measure of objective culpability seems to me to derive from the simple and common-sense proposition that a person who, while struggling with another in a situation of volatility and violence, stabs that other four times in, variously, the back, the neck and the front torso, cannot be heard to say that he did not understand that what he was doing raised a real risk of death rather than of injury.
20 The murder of which the prisoner has been convicted is, in my opinion, objectively culpable, on any reasonable reckoning, in very high degree. It is timely to say, yet again, that a civilised society cannot, and does not, tolerate the notion that violence, using an offensive and obviously dangerous weapon, is in any way acceptable as a method of resolving domestic disputes.
21 It is necessary to turn, next, to a consideration of relevant subjective matters.
22 The prisoner was born on 17 February 1942. He is aged therefore, 60 years and some 10 months. He has been in continuous custody since 7 June 2001. On 13 June 2001, he applied to be placed in protective custody: " ... after discussion with senior officers & re threats against my life, and as I don't want any troubles". I infer, although there is no precise evidence about the topic, that the prisoner will remain in some form of protective custody into the foreseeable future.
23 The prisoner seems to have, and to have had, some health problems while in prison. There is some discussion of these matters in a Corrections Health Service report dated 26 November last; but it is a discussion based upon an examination of medical records and not upon a personal examination. The evidence is imprecise and inconclusive. I think that all that can be done now is to take into account, in a broad-brush sort of way, the apparent existence of ailments as described in the report. The report is exhibit P3 on sentence.