Murder - power of the jury to return alternative verdict of manslaughter - trial judge's direction where no evidence to justify verdict of manslaughter

Sentencing - severity - objective seriousness of the crime - extraordinary subjective circumstances of the accused - extreme remorse

Sentencing - relevance of accused's state of health - disabilities which render imprisonment more burdensome

Crimes Act 1900, s.13

Lee Chun Chuen v. The Queen (1963) AC 220

The Queen v. Blake (Court of Appeal QLD, unreported, 31 March 1994)

Stingel v. The Queen [1990] HCA 61; (1990) 171 CLR 312

The Queen v. Brown and Morley (1968) SASR 468

Gammage v. The Queen [1969] HCA 68; (1969) 122 CLR 444

Tajber v. The Queen (1986) 13 FCR 524

The Queen v. Birks (1990) 48 A Crim R 385

The Queen v. Knowles [1984] VicRp 67; (1984) VR 751

R. v. Smith (1986-87) 44 SASR 587

Counsel for the Appellant: Mr S. Tilmouth QC and Mr S. Pilkinton

Solicitor for the Appellant: Porter Pilkinton Bradfield

Counsel for the Respondent: Mr K. Crispin QC and Mr K. Hempenstall

Solicitor for the Respondent: ACT Director of Public Prosecutions

(1) The appeal against conviction be dismissed.

(2) The appeal against sentence imposed by the Supreme Court of

the Australian Capital Territory be allowed.

(3) The said sentence be set aside and in lieu thereof the Court

sentences the appellant to imprisonment for 14 years and

fixes a non-parole period of six years and six months.

(4) The said sentence and non-parole period to commence on 30

May 1994.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

BLACK CJ, GALLOP AND MATHEWS JJ On the 23rd May 1994 the appellant was indicted before a jury in the Supreme Court of the Australian Capital Territory on a charge that on the 22nd July 1993 he murdered Leanne Ford. On the 30th May he was found guilty of that charge. On 1 June 1994 he was sentenced by Miles CJ to 16 years imprisonment with a non-parole period of nine years. He now appeals from both conviction and sentence.

2. The body of the deceased was found late in the morning of the 23rd July 1993 wrapped in a sleeping bag on a bed in the main bedroom at her home at Narrabundah. A post mortem examination revealed extensive head and facial injuries with a fractured skull. Lying beside the bed, but still alive, was the appellant, who had apparently been shot through the head with a nail extruded by a Ramset tool gun. He was taken to hospital where, in due course, he was questioned about the matter. He did not deny that it must have been he who inflicted the fatal injuries on the deceased, but said that he had no recollection of the event, nor of the circumstances leading up to his own injuries.

3. In order to explore how this tragedy occurred, it is necessary to describe a little of the appellant's background and the nature of his relationship with Leanne Ford. These matters were fully ventilated at his trial. The only matter which was realistically raised by way of defence was the issue of provocation. In the event, this was withdrawn from the jury by his Honour. But in the process a number of witnesses gave evidence who were in a position to give some insight into the appellant's personality and background, and his relationship with Leanne.

4. At the time of the offence the appellant was 25 years old, having been born on 4th November 1967. He comes from a close and supportive family which had apparently been able to provide him with material comforts and emotional security. His family has lived in Canberra all his life. When the appellant was in primary school it became apparent that he had serious difficulty with reading and writing. Although his parents tried hard to rectify this with remedial teaching he remained backward in his schooling. Nevertheless, he excelled in mathematics. His last year of schooling, in 1983, was spent at Scotts College at Bathurst. At the end of that year he obtained his School Certificate, with just sufficient grades to enable him to enter a plumbing course at ACT TAFE. Notwithstanding his literacy problems, by 1988 he had completed that course and his required term of apprenticeship. In 1989 he commenced business as a plumber on his own account, working from his parents home in Farrer. He was still working in that capacity in July 1993.

5. The other feature of the appellant's background, which should be mentioned because of its relevance to the appellant's subjective circumstances, is his former sporting ability. He has always been interested in sport and before these events was skilled in a variety of sports particularly water skiing. For some years he was an active member of the ACT Water Ski Club and ultimately became captain of that club. He was for a time the ACT Water Ski Racing Champion and participated in a number of major national events.

6. A number of witnesses gave evidence at the appellant's trial about his sporting prowess and also about his personality generally. It is apparent that he was a reserved, quiet young man who was generally liked and trusted. Until a few days before the killing he had never been prone to outbursts of anger, nor had he displayed aggression or violence in any of his previous reactions. Indeed the contrary would seem to have been the case. He had, if anything, an excess of control over his emotional responses. He was, to all intents, a mild mannered, patient, quiet young man, interested in his work, devoted to his sport, and attentive towards his family. However, an incident occurred five days before the killing which indicated a considerable level of emotional vulnerability and volatility. We shall describe this more fully later.

7. The appellant first met Leanne Ford at new year 1992/93. Up to that time he had had no serious emotional involvements with women. A previous relationship, earlier in 1992, had not been accompanied by any real emotional commitment, and had discontinued without incident. However, the relationship with Leanne - who was much the same age as he - developed very quickly. Within a matter of days he was spending most of his time at the home in Narrabundah which she shared with her brother, Rocky Harvey. By March or April of 1993 he had effectively left his parents' home and moved into the Narabundah house on a permanent basis. He remained there until very shortly before Leanne's death, during which time he carried out a number of renovations on the house. He was, however, continuing to conduct his work from his parents' home. Indeed he maintained close contact with his parents, who thus had ample opportunity to observe the relationship between these two young people.

8. The appellant's father commented that the relationship between the appellant and Leanne appeared to become a close one very quickly, and that the two of them were very attentive to each other and appeared comfortable in each others presence. Towards the latter stages there was, it seems, talk of children, and possibly of marriage, although the appellant said in evidence that he was not interested in marriage. On the surface therefore everything appeared to be going well for these two people.

9. However, it would seem that by the end of June 1993 Leanne must have been tiring of this relationship. She was concerned about diet and weight, and had arranged to go to a health farm near the Blue Mountains between the 5th and 12th July. Shortly before leaving she commenced a sexual relationship with a friend from work, a Mr Marini. This relationship continued, albeit on an intermittent basis, after her return from the health farm and until her death. Indeed she spent the last night before the killing with Mr Marini. The appellant knew nothing of this relationship although he was well acquainted with Mr Marini; the three of them had gone out together on a number of occasions, normally in the company of others.

10. The strain of the situation must have been telling on Leanne. Not long after her return from the health farm she told the appellant that she thought their relationship had developed too quickly. She suggested that they should try to live apart, whilst retaining a relationship as boyfriend and girlfriend. The appellant remonstrated at first, and said he could not understand this. However, after further discussion he started to move out, and on Thursday 15th July took a number of his belongings back to his parents' home.

11. Neither of the appellant's parents was at the Farrer house at the time; his father was working at Woomera and his mother was staying at the family's holiday cottage at Mollymook. That night, his first night away from Leanne's home, she came and spent the night with him at his parents' home. The appellant was optimistic that notwithstanding her unexpected request that they live separately, the relationship would nevertheless work out.

12. It is unnecessary to detail the events of the next week. Suffice it to say that the appellant appeared to be getting mixed messages from Leanne as to how she viewed the future of their relationship. By this time he had become wholeheartedly involved with her and was committed to the continuation of their relationship. On the Saturday night, 17th July, he became extremely distressed and stormed off from Leanne's home when, having returned from Mollymook at her request in order to attend a concert with her, she then displayed no sign of affection to him. He later telephoned and apologised to her. However, he remained upset, frustrated and weepy. This response was, in the circumstances, a considerable over-reaction. In retrospect it serves as something of a portent of what was to come.

13. Returning to the events of 18th and 19th July. Leanne's birthday was on Monday 19th, and her birthday celebrations extended over the two days, the Sunday and Monday. These celebrations, which included the appellant, apparently proceeded without incident. The two of them did not see each other either on the Tuesday or the Wednesday. On the Wednesday evening the appellant telephoned Leanne and invited her to his parents' home for dinner on the following evening, 22nd July. She agreed. She was with Mr Marini at the time but obviously did not tell the appellant this.

14. The next day, Thursday 22nd July, Leanne saw a psychologist, Margaret Groube, whom she had first consulted a month earlier in relation to an eating disorder. On this occasion, 22nd July, she told Ms Groube that she had a problem in the relationships with the men in her life, including her relationship with a man with whom she had been living, whom she named as Ross. She was sick of being adored, she said, and she told Ms Groube that she intended to end this relationship sooner rather than later.

15. That same afternoon Leanne had coffee with Mr Marini. She told him that when she saw the appellant that night she was proposing to make it plain that their relationship was over.

16. Also that afternoon Leanne telephoned the appellant and suggested that they go out to dinner rather than dining at his home. However he was unhappy about this as he had already bought the food and planned the meal. So she agreed to revert to the original plan and dine at his home.

17. Leanne returned to her Narrabundah house at about six o'clock that evening in order to change her clothing. There she told her brother that she was planning to tell the appellant that night that their relationship was over. She said in a manner which her brother described as half joking and half nervous, that if she did not come home he should come looking for her. She left at about 6.30 pm.

18. What happened thereafter - at least within the next few hours or so - comes from the appellant himself: primarily from accounts he gave to the police, to Dr Barclay, and also in his evidence at the trial.

19. The appellant said that before Leanne arrived he went to some trouble to prepare a special meal, using the household's best crockery and finest wine glasses. She arrived at about seven o'clock. They met outside the front door and kissed and hugged. She told him that her car was over-revving, so he went to his truck, obtained a lubricating spray and sprayed it onto her car's accelerator. He told her that he would service her car over the weekend. They went inside where dinner was already prepared. They sat and ate at a table in the family room. It was a single course which presumably did not take long to eat. They drank about half a bottle of wine. After dinner they cleared away, stacked the dishwasher, and sat down in front of the slow combustion fire. That was the appellant's last recollection of that night. His next pocket of consciousness was when he was in an ambulance, which, as we now know, must have been a good sixteen hours later. A number of the ensuing events of that night can be reconstructed or inferred. It is known that Leanne sustained major head and facial injuries including a fractured skull, through a violent and ferocious attack with an enamel kettle which was normally kept above the slow combustion fire. Portions of the enamel were embedded in her skull, and the handle was broken. She sustained lacerations and bruising to both hands - these presumably being defensive injuries. This attack must have taken place in the family room, as traces of blood were later found there by the police, despite the appellant's apparent attempts to clean up the house so that no sign remained of these devastating events. He left a note for his mother, apologising for any mess that might be left from the meal - although in reality there was little or no mess, for he had done a very effective job of cleaning up.

20. Also that evening, he telephoned his mother in Mollymook, telling her that he would not be joining her that weekend, as had previously been planned, as he needed to do some work on Leanne's car. That call was made at eight o'clock. Mrs Arrowsmith noticed nothing unusual about his manner at the time, and it is quite likely that the call was made before the dramatic events of that night, although the appellant himself did not mention it in his account of the evening.

21. It is not possible to determine the sequence of events later that evening. However, it is clear that the appellant wrapped Leanne's body in a sleeping bag, with a towel around her head, and took her in his truck to her home at Narrabundah. He also put the damaged kettle and some clothing in a bag, and similarly put that in his truck, together with the squeeze mop which he had used for cleaning his parent's home. He also obtained a Ramset tool gun, which he used for his work, from a tool shed at his parents' home. This gun required significant modification in order to enable it to discharge without being pressed hard against the surface to be nailed. The appellant carried out this modification and took the gun with him to Leanne's Narrabundah home. He laid her body on her bed in the bedroom, and lay down beside it. At some time, probably between 10 and 11 the next morning, he shot himself in the head with the Ramset gun. The nail went through his head and lodged in an architrave.

22. It was not until the middle of that day, when Leanne's friends and family became anxious about her absence from work, that she and the appellant were found. Dr Herdson, who first saw Leanne's body at 12.45 that afternoon, thought she had been dead between nine and fifteen hours.

23. The appellant in the meantime underwent emergency surgery and was placed in intensive care. He gradually regained consciousness, but for some time was unable to speak. On the Sunday, 24th July, with the aid of an alphabet board provided by his family, he spelt out the words 'Let Lee in'. When he was told that this was not possible, he said 'Why not?'

24. It was not until the 29th July that the appellant was told what had happened. He was disbelieving and devastated. On the same day he was interviewed by police and gave much the same account as he has given ever since and which he gave in evidence at his trial.

25. This brings us to a brief description of the trial itself. The Crown case comprised the evidence of police witnesses, who described their findings at the Farrer and Narrabundah houses and their interview with the appellant. Dr Herdson gave evidence of his findings at the post mortem. The other witnesses were the appellant's father, who detailed the history of the relationship between the appellant and Leanne, as well as the three people to whom Leanne had spoken about her intention to terminate her relationship with the appellant, namely Ms Groube, Mr Marini and Mr Harvey. Also during the Crown case, the appellant made a formal admission that the blows which caused Leanne Ford's death were struck with reckless indifference to the probability of death.

26. The defence case consisted of the evidence of the appellant himself, his mother, and a number of acquaintances and friends who gave character evidence on his behalf. In addition, a psychiatrist Dr Robert Tym and a psychologist Mr Paul Mullen gave evidence in which they inter alia said that they believed that the appellant's apparent amnesia was entirely genuine.

27. It was never disputed at the trial that it must have been the appellant who inflicted the fatal injuries on the deceased, and indeed the evidence overwhelmingly indicated this to have been the fact. In the light of the formal admission, which went to that ingredient of murder relating to the mental state of the offender, which is normally the most difficult to prove in cases of this nature, a conviction of murder was virtually inevitable in the absence of a defence of self-defence, mental illness, diminished responsibility or provocation. There was no suggestion at the trial of any of these first three defences. It was clearly not a self-defence situation, and the appellant had been seen by a number of psychiatrists and psychologists who said that he was not suffering from any mental illness or any abnormality of mind within the meaning of section 14 of the Crimes Act.

28. Provocation, however, was very much in issue. Indeed the case for the defence at the trial was entirely dependent upon this issue.

29. At the close of all the evidence at the trial, his Honour received submissions on the question of provocation from both the defence and the prosecution. Following a short adjournment he delivered a decision in which he ruled that provocation should not go to the jury. Mr Hastings QC, who appeared for the appellant at the trial, was then granted a further short adjournment so that he could obtain instructions as to what should happen thereafter. On resumption Mr Hastings declined to address the jury. Mr Crispin, the Director of Public Prosecutions, then gave his address, his Honour summed up, and the jury retired. Three and a half hours later it returned its verdict of guilty.

30. The amended grounds of appeal against conviction are in the following terms:

"1. That the trial judge erred in law in withdrawing the issue

of provocation and that there had been a substantial

miscarriage of justice occasioned thereby.

2. That the trial judge erred in his interpretation of section

13(2) of the Crimes Act 1900 in its application to the

Australian Capital Territory, and that there has been a

substantial miscarriage of justice occasioned thereby.

3. That there was a miscarriage of justice by reason of any or

all of the following matters:

3.1 The summing-up of the Learned Trial Judge was

effectively a direction to convict the appellant of

murder and/or withdrew a manslaughter verdict.

3.2 The admission made by the appellant during the course

of the trial of reckless indifference to the

probability of causing death, particularly in the

light of the evidence of the appellant supported by

the psychiatric evidence and the request by the jury

for re-direction on that issue.

3.3 The decision of defence counsel not to make a closing

address to the jury."

31. The whole of section 13 of the Crimes Act relates to provocation. Accordingly, the first and second grounds of appeal are integrally connected. However they raise separate issues, and we shall discuss them separately.

33. Section 13 of the Crimes Act 1900 (NSW) in its application to the Australian Capital Territory and as amended by Territory legislation is in the following terms:

"Trial for murder-provocation

13. (1) Where, on a trial for murder:

(a) it appears that the act or omission causing death

occurred under provocation; and

(b) 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 him or her

guilty of manslaughter.

(2) For the purposes of subsection (1), an act or omission

causing death shall be taken to have occurred under provocation

where:

(a) the act or omission was the result of the accused's

loss of self-control induced by any conduct of the

deceased (including grossly insulting words or

gestures) towards or affecting the accused; and

(b) the 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:

(i) as to have formed an intent to kill the

deceased; or

(ii) as to be recklessly indifferent to the

probability of causing the deceased's death;

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 occurred under provocation, there is no rule

of law that provocation is negatived if:

(a) there was no 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 did not occur suddenly;

or

(c) the act or omission causing death occurred with any intent

to take life or inflict grievous bodily harm.

(4) Where, on a trial for murder, there is evidence that the act

or omission causing death occurred under provocation, the onus of

proving beyond reasonable doubt that the act or omission did not

occur under provocation lies on the prosecution.

(5) This section does not exclude or limit any defence to a

charge of murder."

34. Mr Tilmouth QC, who appeared for the appellant before us, contrasted the present section 13 with its predecessor, and commented, rightly, that in its present form it expands the scope of provocation as a defence to murder. He submitted that Miles CJ's decision to withdraw the issue of provocation from the jury contained some significant errors.

35. This takes us to his Honour's ruling on this issue.

36. His Honour, in his decision on provocation, referred to the difficulty faced by the defence in this case in the light of the fact that there was an evidential vacuum as to the events immediately preceding the attack on the deceased. His Honour commented that this need not necessarily be fatal to provocation. He quoted the following passage from the decision of the Privy Council in Lee Chun Chuen v. The Queen (1963) AC 220 at 233:

"What is essential is that there should be produced, either from

as much of the accused's evidence as is acceptable, or from the

evidence from other witnesses or from a reasonable combination of

both, a credible narrative of events disclosing material that

suggests provocation in law. If no such narrative is obtainable

from the evidence, the jury cannot be invited to construct one."

37. His Honour then discussed the inferences which could be drawn from the general evidence at the trial, particularly the evidence of Ms Groube, Mr Marini and Mr Harvey, with whom the deceased had had discussions about her intention to terminate her relationship with the appellant. His Honour concluded that it would be well open to the jury to find that the appellant had lost his self-control at the time he inflicted the fatal blows and that this had almost certainly been preceded by a statement from the deceased that their relationship was over. His Honour also considered - although he regarded this as less clear - that the jury might possibly be able to infer that the deceased had also told the appellant of her relationship with Mr Marini. However, any further findings of fact could be based on nothing but speculation.

38. Upon this basis his Honour found that the 'ordinary person' test in section 13 had not been met - in other words that it would not be open to the jury to conclude, on the evidence given at the trial, that the conduct of the deceased was such as could have induced an ordinary person in the position of the appellant to have so far lost self-control as to form an intention to kill or be recklessly indifferent to the probability of causing death.

39. We did not understand Mr Tilmouth to be challenging his Honour's finding that a mere statement that a relationship is over, even if accompanied by an admission of infidelity, would be sufficient in itself to satisfy the 'ordinary person' test in provocation. Such a challenge would be untenable in the light of recent authority, such as The Queen v. Blake (Court of Appeal Queensland, unreported 31 March 1994). In that case provocation had been withdrawn from the jury in a trial in which a husband had been charged with murdering his wife by strangulation. The killing had occurred at the end of an evening which had begun with love-making. It had been immediately preceded by the wife telling her husband that she wanted to end the marriage and that she had been having an affair for two months. It was clear that the accused had lost his self-control. The only question was whether the 'ordinary person' test was satisfied. The Queensland Court of Appeal dismissed the appeal, saying that the speaking of those words could not have been sufficient to provoke an ordinary person to lose his or her self-control to such an extent as to intentionally or recklessly kill.

40. As Miles CJ pointed out in this case, standards change over time, and according to community values. The 'ordinary person' test provides an objective and uniform standard of the extent to which the law will countenance that the killing of another person can be mitigated from murder to manslaughter through provocation. In Australia in the 1990s it would be entirely out of line with that standard if the mere telling of a partner that a relationship is over, whether accompanied or not by an admission of infidelity, were taken as potentially sufficient to induce an ordinary person to so lose control as to deliberately or recklessly inflict fatal violence on the other.

41. We return then to Mr Tilmouth's submissions. He urges that the fact that there is, in one sense, an evidential vacuum as to the events immediately preceding the killing, is not necessarily decisive of the issue, so long as it can be inferred from the surrounding circumstances that provocative conduct must have occurred which is capable of satisfying the requirements of section 13.

42. We have no difficulty with this proposition. It is consistent with the principle in Lee Chun Chuen, and indeed was affirmed by his Honour in this case. However, we cannot find any evidence in this case from which any inference of provocative conduct can be drawn. Mr Tilmouth says that it can be found in the cumulation of the evidence given at the trial: in particular the evidence that the relationship between the appellant and the deceased was a close one, and that the appellant and Mr Marini knew each other well, so that an admission from the deceased that she had been having an affair with him would have involved a particular assault upon the appellant's self esteem; also the evidence that the appellant already knew of the deceased's equivocation as to the future of their relationship, and had accepted all prior intimations of this with his usual stoicism, apart from his outburst on the previous Saturday night. Mr Tilmouth also relied upon Dr Tym's evidence, and particularly the following extract: "I don't think just the inevitability of the relationship ending was going to mean that he was going to explode" (Appeal Book Page 189).

43. Mr Tilmouth submitted that the combined effect of all this evidence together with the fact that the appellant did in fact 'explode', provided material from which it was open for the jury to infer that the deceased must have done much more than announce the end of their relationship or tell the appellant of her affair with Mr Marini.

44. Had it not been for the "ordinary person" test in provocation, there might have been some substance in Mr Tilmouth's submission. For it is clear that the appellant did lose his self-control, and it may be inferred that this was precipitated by whatever it was that happened between himself and the deceased that night. Mr Tilmouth attempted to address the problem imposed by the 'ordinary person' test by submitting that the appellant's loss of self- control was so complete and so uncharacteristic that it was open for the jury to find that whatever it was that the deceased did to provoke it must have been so extreme as to be capable also of inducing an ordinary person in the position of the appellant to have similarly lost control and formed an intention to kill, or at least to be reckless as to the probability of death.

45. There are two difficulties with this proposition. The first arises from the evidence in this case. The second, and much more fundamental difficulty, is a matter of principle.

46. Dealing very briefly with the first matter, Mr Tilmouth's submission is based upon the assumption that the reaction of the appellant can be equated with that of the ordinary person. In effect he is saying that the appellant had never reacted with violence in the past, and therefore it was open for the jury to assume that anything which caused him to lose his self-control on this occasion could also have caused an ordinary person to lose self-control in a similar way. But Dr Tym's evidence showed that the appellant was anything but an ordinary person in his capacity for self-control. The doctor considered that the appellant's writing difficulties in his youth had profoundly affected his self esteem. He had been subject to great humiliation on many occasions, and had bottled up his feelings and over-controlled his emotions. According to Dr Tym he was "like a somewhat overheated pressure cooker without a safety valve".

47. It follows that there is no evidential basis for assuming, as Mr Tilmouth seeks to have us do, that the appellant's capacity for self-control could be equated with that of the ordinary person.

48. Even without that evidence, this submission would have to fail. For if it were successful it would entirely undermine the "ordinary person" test in provocation. In the absence of evidence that a particular accused person had an abnormal threshold of control, then any accused could be taken as the litmus test for the ordinary person. It would then only be necessary to show that the accused had in fact lost control and formed an intention to kill. There would be no scope for the operation of the "ordinary person" test. It goes without saying that this is entirely contrary to the intention of the legislation. As the High Court commented in Stingel v. The Queen [1990] HCA 61; (1990) 171 CLR 312 at 324

"the requirement that the wrongful act or insult be of such a

nature as to be sufficient to deprive an ordinary person of the

power of self control is clearly intended to involve an objective

threshold test. It is only if that test is satisfied that it

becomes necessary to consider whether the accused was, in fact,

subjectively deprived of his or her self-control".

"The function of the ordinary person of s. 160 is the same as that

of the ordinary person of the common law of provocation. It is to

provide an objective and uniform standard of the minimum powers of

self-control which must be observed before one enters the area in

which provocation can reduce what would otherwise be murder to

manslaughter. While personal characteristics or attributes of the

particular accused may be taken into account for the purpose of

understanding the implications and assessing the gravity of the

wrongful act or insult, the ultimate question posed by the

threshold objective test of s. 160(2) relates to the possible

effect of the wrongful act or insult, so understood and assessed,

upon the power of self-control of a truly hypothetical 'ordinary

person'. Subject to a qualification in relation to age (see

below), the extent of the power of self-control of that

hypothetical ordinary person is unaffected by the personal

characteristics or attributes of the particular accused."

50. Even more apposite to the circumstances of this case is the following passage on page 325:

"The central question posed by the objective test - ie of such a

nature as to be sufficient - obviously cannot be answered without

the identification of the content and relevant implications of the

wrongful act or insult and an objective assessment of its gravity

in the circumstances of the particular case."

51. These passages reveal the untenability of the appellant's submissions in this case. It can never be sufficient to approach the matter only from the standpoint of the individual accused: to seek to infer from the fact that that accused did in fact lose control that the conduct which led him or her to do so must have been so serious as to have similarly affected an ordinary person in his or her position. The objective component in provocation must be considered quite separately from the subjective component. The manner in which an accused person in fact responded to the conduct of the deceased is central to the subjective component, but irrelevant to the objective one. In order to fulfil the objective requirement, it is necessary to focus upon the conduct of the deceased, and then ask, in terms of the section, whether that conduct 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 intention to kill, or at least to have been recklessly indifferent to the probability of death. In the circumstances of this case, that process was unavailable to the jury, because of the limited inferences which were available to be drawn as to the conduct of the deceased immediately before the killing. For there was certainly nothing in her earlier conduct which was capable of amounting to provocative conduct.

52. Accordingly, we consider that his Honour was correct in withdrawing provocation from the jury. The first ground of appeal accordingly fails.

53. The second ground of appeal, relating to section 13(2) of the Crimes Act, arose from a comment made by his Honour in the course of his decision to withdraw provocation. His Honour observed that, since 1992, murder had been redefined in the Australian Capital Territory so as to include only acts causing death which are intended to cause death or which are done with reckless indifference to the probability of causing death. Any act intended to cause grievous bodily harm which in fact causes death, which had previously amounted to murder, (and which continues to do so in the rest of Australia), now constitutes only manslaughter in the ACT. His Honour then made the following comment:

"Consonant with the new definition of murder in the Australian

Capital Territory, it seems to me that the concept of provocation

is narrowed from what it used to be. Whilst previously it was

sufficient provocation for the conduct of the deceased to be

capable of inducing an ordinary person to lose self-control to the

extent of forming an intent to do grievous bodily harm, the

conduct of the deceased must now be such that it could have

induced an ordinary person in the position of the accused to have

so lost self-control as to form an intent to kill, or as to become

recklessly indifferent to the probability of causing death.

The result appears to be that in order to raise provocation, the

conduct of the deceased relied upon must be of a more provocative

kind than previously in that it must be sufficient to induce the

ordinary person to lose self-control to the extent of

contemplating causing death and not merely injury. Whilst it is

fundamental that once there is evidence sufficient to raise

provocation, the onus is on the prosecution to exclude beyond

reasonable doubt that the accused caused the death whilst still

provoked. The evidential barrier is still to be overcome."

54. Mr Tilmouth submitted that his Honour's comment was erroneous. He pointed out that the amendments to section 13 have enlarged the area of provocation rather than diminishing it.

55. We should commence by observing that these comments of his Honour's were by nature of an aside. They did not, so far as we can tell, have any bearing on his Honour's findings in this case. Those findings were based entirely upon the evidence, or more accurately, upon the lack of it. In any event the comments were perfectly correct. So long as murder included the concept of causing death with intent to inflict grievous bodily harm, the requirements of the provocation defence could be satisfied - in appropriate cases - if the degree of provocative conduct was sufficient to induce a loss of self-control leading only to an intention to cause grievous bodily harm. This would now be insufficient to constitute provocation in the ACT, as a killing perpetrated with no greater intent than to cause grievous bodily harm would, in any event, amount under the Territory law to manslaughter only. In most cases it will be entirely a question of fact for the jury, although there may be marginal cases in which this might also affect the preliminary question to be determined by the trial judge as to whether there is evidence fit to go to the jury on provocation. This was not such a case. In any event, as we have said, his Honour's observations were entirely correct. Accordingly, we can find no substance in the second ground of appeal.

56. The third ground of appeal is a compendious one based upon the proposition that a miscarriage of justice occurred at the trial by reason of any or all of the three matters mentioned in the ground. We shall deal with each of these matters in turn.

57. Under ground 3.1 the appellant submits that the trial judge wrongly withdrew manslaughter from the jury and in effect directed them to convict of murder. Mr Tilmouth relies particularly on the following passage in his Honour's summing up (Appeal Book page 234)

"Now ladies and gentlemen, I remind you that provocation is not an

issue in this case. There is no way in which you could bring back

a verdict of manslaughter if you were to be true to your judicial

oath, in this particular case."

58. Mr Tilmouth submits that this direction deprived the appellant of the time honoured right which any accused has in a murder trial of being acquitted of murder and convicted of manslaughter.

59. Mr Tilmouth referred us to a number of authorities on this point. First was The Queen v. Brown and Morley (1968) SASR 468 at 469 where the court (Bray CJ, Bright and Mitchell JJ) said as follows:

"It is always within the legal power of the jury on a charge of

murder to return what the High Court has called the 'merciful

verdict of manslaughter'; Hughes v. The King, and it is a

misdirection if words are used which deny them that power. The

rationale of the rule is explained by the High Court if Beavan v

The Queen. See also Brown v The King; Packett v The King; Mraz

v The Queen. In some of these cases the court was considering the

provisions of statutes codifying the criminal law, but the

doctrine in question applies equally at common law. See per Dixon

J, in Packett v The King; R v Ryan and Walker.

It is, of course, in no way inconsistent with this doctrine that

the judge, if he thinks there is no evidence on which a reasonable

jury could find a verdict of manslaughter, is entitled so to tell

them or to refrain from saying anything about manslaughter at all

(Beavan v The Queen). And indeed it may be a misdirection if he

invites them to consider the question of manslaughter as

reasonably open when the only verdicts which a reasonable jury

could find are guilty of murder or not guilty (Mraz v The Queen).

It must be admitted that the task of a judge under these

circumstances is no easy one. If there is no evidence which can

reasonably justify a verdict of manslaughter, he must either, if

the question is raised, tell the jury so or be silent on the

topic: at the same time he must not in terms deny their right to

return a verdict of manslaughter if they want to do so in defiance

of his direction. And, of course, if he tells them that

manslaughter is not a reasonably possible verdict on the facts and

the court of appeal thinks it is, or that it is a reasonably

possible verdict on the facts and the court of appeal thinks it is

not, the verdict is liable to be quashed on appeal.

Nevertheless if he tells the jury that they ought to return a

verdict of manslaughter, he must be careful that they are in no

danger of understanding his direction as a direction that they

cannot return such a verdict."

60. In Gammage v. The Queen [1969] HCA 68; (1969) 122 CLR 444, the High Court dismissed an appeal in which the judge in a murder trial directed a jury in the following terms:

"You must not, as it were say to yourselves: we are satisfied it

is murder but we have the right to bring in manslaughter and

although we think it is murder we are going to be merciful to this

man and find him guilty of the lesser offence."

61. Barwick CJ made the following observations (pp 450-451):

"Out of the circumstance that, though not charged, manslaughter if

made out may be found on an indictment of murder, there naturally

arises the obligation to tell the jury if they ask, or if the

accused requires it, that this alternative verdict is open to them

if that is their view of the facts. Failure to so advise them

will give rise to a justifiable complaint on the part of the

prisoner. But part of that advice should, in my opinion, be a

clear statement of the occasion on which the jury might properly

return a verdict of manslaughter. Dixon J in Packett v The King

(1) adverted to this matter but some part of his reasons may, in

my respectful opinion, be open to serious misconstruction. As his

Honour points out, if there be no material capable of forming a

basis for a finding of provocation the jury should be so advised.

They should in that connexion, in my opinion, be told that a

verdict of manslaughter could not properly be returned by them for

the reason of provocation alone: and if the case be one, as on

relatively rare occasions it might be, in which, because of its

particular facts and circumstances, only a verdict of murder or

one of acquittal is possible on any view of those facts and

circumstances, they should be told that there is no basis on which

they could properly find manslaughter. Of course, if a jury

improperly returns a verdict of manslaughter when there is in fact

no material on which such a verdict may properly be returned, the

trial judge may request their reconsideration of the matter: but

if they persist in the verdict, he must in the end accept it."

62. More recently, in this court, in Tajber v. The Queen (1986) 13 FCR 524 on appeal from the Supreme Court of the Australian Capital Territory, Gallop J said (at page 534):

"Once the jury had asked about its power to return a verdict

of not guilty of murder, but guilty of manslaughter, the trial

judge should have directed the jury that, if they found all

the elements of murder established, they had the power to

return a verdict of manslaughter, but that they would fail in

their duty or be false to their oaths were they to return such

a verdict despite their findings and merely upon merciful or

compassionate grounds."

"Accordingly, in my view, it would have been proper for the

jury to have been told that there was no evidentiary basis

upon which they could properly find manslaughter. If, despite

such directions, the jury nevertheless returned a verdict of

manslaughter, the trial judge could have declined to accept it

and encouraged the jury to return a proper verdict. But even

if his Honour had taken that course and yet the jury had

persisted in its verdict of acquittal of murder but guilty of

manslaughter, he would have had to accept it."

64. A reading of the authorities makes it clear that the rule is designed to recognise the jury's power to return a manslaughter verdict even where there is no evidential basis for such a finding. Any direction which purports to tell the jury that they have no such power would be erroneous and would infringe this principle. But a direction which merely tells them that there is no evidential basis for a manslaughter verdict is quite permissible. And in our view the direction given by his Honour in this case falls into this category. It was an accurate statement of the evidential situation at the trial. It did not purport to direct the jury that they had no power to return a manslaughter verdict. To the contrary, it was implicit in his Honour's direction that the jury did have the power to return a verdict of manslaughter, but that they would not be true to their oaths were they to do so. This is precisely the form of direction which has been approved by the authorities.

65. Accordingly we can find no substance in ground 3.1.

66. Ground 3.2 is based upon the admission made by the appellant during the course of the trial, to the effect that the injuries occasioned to the deceased were inflicted with reckless indifference to the probability of causing death. It was submitted that the making of this admission brought about a miscarriage of justice in the circumstances.

67. No affidavits have been tendered or additional evidence led before us, so we are entirely dependent upon the transcript of the trial when considering this ground.

68. The appellant's admission as to recklessness was made at a point during the trial when the Crown was about to tender photographs of the deceased taken at the post mortem examination. The purpose of the tender was to show that the extent of the injuries was inconsistent with anything other than an attempt to cause death or at least recklessness as to the probability of death. Provocation was still an issue at that stage and one can well understand that defence counsel would have been concerned to ensure that the photographs did not go before the jury. Mr Tilmouth urges, however, that the admission was premature and might well have been unnecessary, for his Honour might have exercised his discretion to reject this evidence.

69. The appellant was represented at his trial by experienced and skilled senior counsel. He made what was clearly a tactical decision as to which was likely to be the more damaging to the appellant's case, the tender of the photographs or the making of the admission. This is the type of decision which counsel must frequently make on the run during a trial of this nature. It was certainly an unusual admission to make, but then the circumstances of this case were very unusual. It could in no way be described as even approaching the 'flagrant incompetence' which must be shown according to the principles enunciated in The Queen v. Birks (1990) 48 A Crim R 385. Nor, if a wider test were to be adopted, could it amount to 'bad management or misconduct of the defence case' under the principles enunciated in The Queen v. Knowles [1984] VicRp 67; (1984) V R 751.

70. Accordingly we can find no substance in ground 3.2.

71. Ground 3.3 refers to the fact that counsel for the appellant at his trial declined to make a final address to the jury. Mr Tilmouth did not address on this issue and it is unnecessary to discuss it in any detail. Suffice it to say that by that time the issue of provocation had been withdrawn from the jury. In the light of the appellant's admission as to recklessness a verdict of guilty to murder was virtually inevitable. Counsel was left, as he himself conceded, with nothing to address upon. Accordingly, it could hardly be described as bringing about a miscarriage of justice that he chose to exercise that option.

72. This then disposes of all the grounds of appeal against conviction. In accordance with what we have said we would dismiss the appeal against conviction.

74. The appellant, as we have already indicated, was sentenced by his Honour to a head sentence of 16 years with a non parole period of nine years. It is the case for the appellant that this sentence was manifestly excessive particularly in the light of the appellant's subjective features. Mr Tilmouth relies upon the appellant's previous exemplary character, the extreme remorse which he has shown and the potential effect of his present disabilities upon his incarceration. All of these matters were referred to by his Honour during his remarks on sentence. It is not suggested by Mr Tillmouth that there was any specific error in the sentencing process, but that the sentence itself is so manifestly excessive that some unrevealed error must have occurred.

75. There can be no question as to the objective seriousness of this offence. A blameless woman met her death in horrifying circumstances. Were it not for the extraordinary nature of the appellant's subjective circumstances no challenge could possibly be mounted to his Honour's sentence.

76. Having said that, it should be observed that murder is a crime that may be committed in a range of circumstances. In this case it was committed by a person of previously blameless character in circumstances where he apparently completely lost control. There was no suggestion of premeditation and the crime was not committed for gain. Moreover, the admission upon which the jury was invited to act was an admission of reckless indifference rather than of actual intent to kill.

77. A discussion of the appellant's culpability cannot be complete without reference to the psychiatric material which was before his Honour. Two psychiatrists, Dr Mullen and Dr Tym, were called by the appellant during the course of the trial. They both accepted that the appellant's amnesia was entirely genuine. Dr Mullen categorised traumatic amnesia as either physiological in origin or alternatively as emotional, or "psychogenic". He considered that the appellant's head injury was sufficient to account for his loss of memory both before and after the incident. Dr Tym, whilst agreeing with Dr Mullen's categorisation of amnesia, considered that the appellant's amnesia was probably psychogenic in origin. As the doctor put it, "the absolute horror of what had had happened was so abhorrent to him that his mind just switched off. His memory left him and he cannot recall those events."

78. As to the appellant's mental state leading up to the killing, Dr Tym said as follows (Appeal Book page 187):

"I think this is why we're here today is because of a

combination of circumstances over his life starting,

presumably, at birth with some birth damage or congenital

defect in the left side of his brain which left him unable to

learn to read or learn to write in the way that the rest of

his brain was able to learn to perform their functions. I

think this has dogged him all his life. I think it's had

profound effects on his self-esteem. I think he's tried to

cover up his emotional feelings about it. I think he's been

subjected to great humiliation on very many occasions and this

is again something that the second master from Scott's College

told me, that the remedial boys, while it is true they can't

get away from being ragged, ridiculed, humilitated, it's just

part of life. They have to put up with it. I think this had

been happening with him and fortunately or unfortunately, his

parents taught him not to show emotion, or at least not to

express it, and they taught him to control his impulses. So

he was as if - for Ross Arrowsmith, he was almost like a

somewhat over-heated pressure cooker without a safety valve."

"my thesis was that what had happened was an over-controlled,

an emotionally over-controlled man who'd had a sudden

overwhelming assault on his self-esteem and he'd gone - he

just - momentarily berserk, out of his own control."

79. We turn now to the appellant's subjective circumstances. It is beyond question that at the time of the killing the appellant was a person of exemplary character. In spite of having serious learning disabilities he had completed his plumbing course and had established a successful business. His involvement in sporting activities revealed a strong community mindedness.

80. As to the appellant's remorse, this was expressed in the most devastating of ways. There is no doubt that he intended, at the time, to take his own life. The attempt has not only left him with severe disabilities, but it has incapacitated him permanently from his work as a plumber and from the sporting activities which he used to enjoy.

81. Dr Tym, who gave evidence on sentence, told the court that as a result of the appellant's brain damage he had a 45 percent loss of useful function of his left arm and a 50 percent loss of useful function of both legs. There was unlikely to be any significant improvement in the usefulness of any of these limbs. Further, the appellant was now prone to epilepsy, and had already suffered a grand mal fit. He was likely to require anti convulsant medication for the rest of his life. Dr Tym expressed the view that the appellant would be unable to fend for himself in an argument and would be a very disadvantaged prisoner. He considered that the appellant's physical disabilities and emotional trauma would make him prone to depression. He had an increased risk of developing other mental illnesses of a schizophrenic type, or Alzheimer's disease, in late life. Dr Tym concluded "I think that he is very vulnerable and his self-esteem might be eroded further and mental illness may develop and/or impulsive self-harm gestures to end it all."

82. The state of health of an offender is always relevant to the consideration of the appropriate sentence (per King CJ, R v. Smith (1986-87) 44 SASR 587 at 589). It is particularly relevant where the offender suffers from disabilities which will render a period of imprisonment more burdensome than for the average prisoner. This is clearly the case with the appellant.

83. His Honour referred to the appellant's subjective features during his remarks on sentence, but we think there is much force in Mr Tilmouth's submission that the ultimate sentence failed to adequately recognise the strength of those circumstances. They were very compelling matters indeed which, in our view, entitled the appellant to a significant reduction in sentence, particularly in the setting of his non-parole period.

84. Accordingly we would allow the appeal against sentence. We set aside the sentence imposed by his Honour and in lieu thereof we sentence the appellant to 14 years imprisonment to commence on 30th May 1994 with a non parole period of six years and six months also to commence on that date.