The Queen v Julian[1998] QCA 119

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

 C.A. No. 464 of 1997

Brisbane

[R v Julian]

THE QUEEN

v

GAVIN LESLIE JOHN JULIAN

Appellant

Pincus JA

Thomas J

Dowsett J

Judgment delivered 5 June 1998

Separate reasons for judgment of each member of the Court; Pincus JA and Thomas J concurring as to the orders made; Dowsett J dissenting.

APPEAL AGAINST CONVICTION DISMISSED

CATCHWORDS: CRIMINAL LAW - murder - provocation - past relationship not mentioned in summing up on provocation - no request by defence for redirection - Van den Hoek v The Queen distinguished.

CRIMINAL LAW - self-defence - inconsistent directions given under s. 271(2), one correct and one incorrect - “a reasonable person would have believed” instead of “accused believes on reasonable grounds” - no request for redirection - error - R v Gray (C.A. No. 439 of 1997, 13 March 1998) discussed - whether miscarriage of justice - application of proviso.

Criminal Code s. 271(2)

Van den Hoek v The Queen (1986) 161 C.L.R. 158

R v Muratovic [1967] Qd. R. 15

Marwey v The Queen (1977) 138 C.L.R. 630

R v Gray (C.A. No. 439 of 1997, 13 March 1998)

R v Allwood (C.A. No. 151 of 1997, 22 August 1997)

Counsel:   Mr J. Hunter for the appellant

Mr D. Bullock for the respondent

Solicitors:  Legal Aid Queensland for the appellant

Director of Public Prosecutions (Queensland) for the respondent

Hearing date: 24 March 1998

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 5 June 1998

I have read the reasons for judgment of Thomas J and those of Dowsett J.  As to the directions on provocation I agree, for the reasons given by the other judges, that the ground based on misdirection with respect to provocation must be rejected.  The real problem in the case is whether the judge’s misdirection with respect to self-defence necessitates that there be a new trial.  It is first necessary to identify precisely where the judge (with respect) went wrong in relation to the, admittedly difficult, topic of self-defence.

There must be some reluctance to accept that the High Court has in  Marwey (1977) 138 C.L.R. 630 authorised a judicial emendation of s. 271 of the Criminal Code, by deciding that it is to be read as if one of the conditions the legislature requires to be considered under subs. (2) were deleted;  the condition to which I refer is that imported by the words "to use any such force to the assailant as is necessary for defence".    The whole subsection reads as follows:

"If the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm, and the person using force by way of defence believes, on reasonable grounds, that the person cannot otherwise preserve the person defended from death or grievous bodily harm, it is lawful for the person to use any such force to the assailant as is necessary for defence, even though such force may cause death or grievous bodily harm".  (emphasis added)

If one accepts the deletion suggested, then the general effect of the subsection may be stated as follows:  if the assault is serious enough, then even the use of force causing death or grievous bodily harm will be lawful if the accused believes on reasonable grounds that he cannot otherwise preserve himself from death or grievous bodily harm.  This reading does away with any need to consider whether the force was in reality necessary for defence;  if the defender kills the attacker, in truth unnecessarily (for example, because the supposed attack is intended as a joke), but in the belief entertained on reasonable grounds that he (the defender) could not adequately protect himself in any other way, the killing is not an offence. 

There are reasons for thinking that the suggested deletion cannot be supported.  One derives from a comparison of subs. (1) and (2) of s. 271.  Subsection (1) reads as follows:

"When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for the person to use such force to the assailant as is reasonably necessary to make effectual defence against the assault, if the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm."

Both sub-sections require that the force used be necessary for defence, although the requirement of necessity is differently phrased in each;  subs. (1) says "such force . . . as is reasonably necessary to make an effectual defence" and subs. (2) says "such force . . . as is necessary for defence".  The requirement of necessity cannot sensibly be deleted from subs. (1);  if it were, there would be no constraint on the extent of force used except that imported by the expression beginning "if the force used is not intended . . .";  a trifling assault could justify a disproportionate response, as long as the limitation just referred to was not infringed.  It would be anomalous to subject to the harsher test the defender who uses the lesser force;  why should an act of defence under subs. (1) be lawful only if necessary but an act of defence under subs. (2) be lawful whether or not it is necessary?

A second problem is how one reads subs. (2) if the requirement of necessity is simply deleted.  It would then have the same effect as if the subsection concluded "it is lawful for the person to use any force to the assailant even though such force may cause death or grievous bodily harm" (emphasis added).  But that could justify the use of force disproportionate to the magnitude of the threat:  a submachine gun burst in defence of a threatened attack by air rifle.  The definition of "assault" in s. 245 includes certain sorts of threats.

A third reason for doubting the correctness of the deletion of the condition of necessity is that it does not appear to me, with respect, clear that this is what the reasons of the High Court in Marwey require.  The reasons of Barwick C.J. are ambiguous.  What was in issue there is stated in the sentence beginning at the foot of p. 631 of 138 C.L.R.:  whether the judge was right in requiring the jury to consider, under s. 271(2), whether the force used was reasonably necessary for self defence; it was the judge’s addition of the word "reasonably" which principally created the difficulty.  The case was looked at under s. 271(2) because the attacker was killed.  There are parts of the judgment of Barwick C.J. which plainly mean that he agrees with the deletion of the third condition, but others imply the contrary. 

As to the implication, his Honour says at p. 637:

"As that belief must be based on reasonable grounds, there is no point in repeating the word ‘reasonably’ before the word ‘necessary’ ".

There is, equally, no point in discussing whether "reasonably" goes in before "necessary", if the whole requirement of necessity is to be deleted anyway;  the word "necessary" occurs only once in s. 271(2), in the expression "any such force . . . as is necessary for defence". 

Barwick C.J. repeats at p. 638 his opinion that there is no need for qualification of the word "necessary", which occurs only in the part of the paragraph which, it is suggested, should be treated as if it were not there.  Then, in the last substantial paragraph of his Honour’s judgment, at p. 639, he discusses elaborately whether the addition of the word "reasonably" as qualifying the word "necessary" was fatal to the verdict below;  that is hardly consistent with the view the whole phrase, including the word "necessary", is irrelevant.  This most strikingly appears in the sentence:

"But the distinction between finding reasonable grounds for a belief in the necessity of the fatal act and finding that that act was reasonably necessary for effective self defence is not such . . . to warrant any interference with the verdict of the jury".

Mason J., like Barwick C.J., gave careful consideration to whether "necessary" could be read as "reasonably necessary" and that is inconsistent with an intention to delete the requirement of necessity.

To summarise, perhaps repetitiously, the question in the case was not whether the third condition should be deleted, but whether it was right to read the word "reasonably" into it.  The High Court held that the verdict was not vitiated by the judge’s having read that word in.  If they thought the law was that the whole condition should not have been mentioned to the jury, then they would presumably have allowed the appeal, since the condition could only help the Crown.

There are, as is pointed out in the reasons of Dowsett J., conflicting decisions in this Court on the point:  Allwood (C.A. No. 151 of 1997, 22 August 1997) and Gray (C.A. No. 439 of 1997, 13 March 1998).  One should ordinarily follow the more recent decision.  Although the way in which one should construe the decision, and in particular the reasons of the Chief Justice, in Marwey, certainly has a bearing upon the issues in the present case, I have concluded, not without doubt, that it is unnecessary to reach a definitive conclusion on that point.  My reason is that the directions given by the judge must be held to have been defective, whatever the true view of Marwey may be;  further, it does not clearly appear that a decision whether to follow the view of s. 271(2) adopted in Allwood or that adopted in Gray could have any substantial effect on the ultimate question in the case, which is whether there was a substantial miscarriage of justice.

With one exception it appears to me that the passages in the judge’s summing-up which have significant bearing upon the outcome of the appeal are set out in the reasons of Thomas J.;  the exception is that the judge said towards the end of his summing-up:

"There was one thing I perhaps should have mentioned in relation to self defence and I will do it now.  You will recall that I told you what is involved in a consideration of the defence of self defence.  You will understand that one of the aspects of self defence is the belief that a person cannot otherwise preserve himself from death or grievous bodily harm except by acting in the way that he does and the need for that to be a belief which a reasonable person would have formed."

In the direction I have quoted, the judge has in effect explained the effect of use of the word "otherwise" in s. 271(2);  the jury were given to understand that this means that the question is whether the accused could have preserved himself from death or grievous bodily harm otherwise than by "acting in the way that he does".  That construction of the word "otherwise" appears to be consistent with the meaning given to it in Marwey by Stephen J. at p. 640, who said in effect that "otherwise" imported a requirement that the accused have reasonable grounds for believing that he could not "by means other than that act of force . . . preserve himself from death or grievous bodily harm" (emphasis added).  I think "that act of force" means the specific act of force engaged in, for example, a shooting or a stabbing.  It is perhaps a digression, so far as the present case is concerned, but I note that that reading of the effect of "otherwise" may be contrasted with a broader reading, which would treat the word as implying that the issue is whether the accused could have protected himself otherwise than by some act of such a kind as might cause death or grievous bodily harm.

But the essential defect in the directions the learned judge gave is that his Honour told the jury in a passage quoted by Thomas J. and in the passage I have quoted that it was a question whether a reasonable person would have or must have held the belief mentioned in s. 271(2).  The judge equated the requirement in the section that the belief be on reasonable grounds with a requirement that a reasonable person must or would have so believed.  One may compare with that the variation from the wording of the section which was held not to vitiate the verdict in Marwey;  there, as I have pointed out above, whereas the section posed the question whether the use of the force was "necessary for defence" the judge invited the jury to consider whether it was "reasonably necessary for defence".  So to state the comparison oversimplifies it, for in Marwey the summing-up also included the following:

"The critical question, of course, is, if he did act in self defence, how far he went, whether what he did was reasonable in all the circumstances . . . the critical question, you might think, is whether he went beyond what was reasonably necessary in all the circumstances". (emphasis added)

The problem in Marwey, as I understand the reasons of Barwick C.J., was thought to be whether the summing-up would have made the jury too much inclined to think about what means of defence was objectively necessary, rather than the accused’s subjective view.  There is a difference between asking, in the present case, whether the grounds for a belief were reasonable and asking whether the belief was one that a reasonable person would or must have held.  The latter formulation, however, would not have been more inclined to make the jury think about objective necessity than would the parts of the summing‑up I have quoted from the reasons of Barwick C.J. in Marwey.  The result of Marwey - that the verdict stood - does not of course determine the present case.  But considering the state of the evidence here, it seems to me, with respect, almost fanciful to conclude that the error in the judge’s directions which I have discussed could have made any difference to the outcome.  What the jury had to do, in order to find that the prosecution had failed to exclude self-defence was to see some glimmer of credibility in the appellant’s suggestion that this savage and fatal knife attack might conceivably have been believed to have been necessary for self‑defence.  In the circumstances explained in the reasons of Thomas J., this appears to me a clear case for the application of the proviso, and I would, like his Honour, dismiss the appeal.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 464 of 1997

Brisbane

Before  Pincus JA

Thomas J

Dowsett J

[R v. Julian]

THE QUEEN

v.

GAVIN LESLIE JOHN JULIAN

Appellant

REASONS FOR JUDGMENT - THOMAS J.

Judgment delivered 5 June 1998

The appellant was convicted of the murder of Bradley Royal.  He did not give evidence but sought to raise defences of self-defence and provocation on the basis of statements given by him to the police during interviews.

The Crown case was extremely strong.  Three or four weeks before the killing the appellant’s relationship with his defacto wife (Deno Bourchier) came to an end.  She moved into a house with Bradley Royal and another man.  It will be convenient to refer to the deceased as the appellant referred to him, namely as “Brad”.  The appellant resented the separation and made attempts to persuade Ms Bourchier to resume her relationship with him.  His attempt to do so on 14 October 1996 resulted in his visiting her at the deceased’s home and calling her a “dirty slut”.  A few weeks before the killing he spoke to friends about his attitude, and upon being advised not to do anything silly, responded “I won’t, because if I start, I’ll never stop.  I’ll end up killing him and I don’t want to risk losing the kids and Deon . . .”.  He added “Well if I get into a fight with him, I probably won’t be able to stop myself and I will probably end up killing him.”  Five days before the killing, in a conversation with another friend he said, approximately six times, that he was “going to fix Brad”.  On the morning of the killing he rang the same friend saying that “it was all set to fix Brad”.

The evidence shows that on the morning of 21 October 1996 the appellant lured Brad to Proserpine Airport by making a telephone call to his place of work and falsely representing himself to be an airport employee.  He said that a former girlfriend of the deceased (“Kelly” according to Crown witnesses and “Kirsty” according to the appellant’s account) was arriving at the airport at 11.20 that morning and had to be picked up.  Brad, who was wearing a white T-shirt borrowed a colleague’s red Commodore sedan so that he could make the trip to the airport.  He was in possession of $1000 which another colleague had loaned him the day before to enable him to repair his own vehicle.

The appellant was observed by witnesses to have parked his vehicle (a silver station wagon) at a table drain on the main road close to the airport, with the bonnet up, suggesting some sort of mechanical trouble.  The appellant admitted that while he was waiting he was sharpening his knife.  Airport staff noticed that about fifteen or twenty minutes later another car pulled up beside it and that by another twenty minutes or so it had gone, leaving the first car still there.  However one witness drove by while the two vehicles were together and noticed that at the rear of the red vehicle there were two people on the ground, one straddling the other.  The person on top was moving his right hand and arm in a downward action.  The person on the bottom was wearing a light coloured shirt which had a dark red stain around the top.  The witness then drove back to the scene in time to see one person dragging the other towards the passenger side of the red vehicle.  After the inert person was put into the red vehicle, the other person shut the bonnet of the silver station wagon, got into the red vehicle and drove away.  The witness dialled 000 at 11.55 a.m.

The red Commodore sedan was found by police the following day in nearby bushland.  The deceased was slumped in the front passenger seat and there were extensive bloodstains within the vehicle.  Attempts had been made to set the vehicle on fire.  The fuel cap had been removed and burnt paper was found in the fuel filler.  Also a fire had been set underneath the front of the vehicle which had caused some damage to surrounding scrub.

The deceased was found to have suffered multiple injuries inflicted with a knife.  These included a gaping slash wound 9 centimetres by 5 centimetres to the back of the neck which involved severance of both the left carotid artery and the left jugular veins and cutting of the trachea.  The damage to the surrounding tissues and glands suggested a twisting motion as the knife passed through the tissues.  There was also a gaping slash wound 12 centimetres by 4 centimetres on the back right-hand side of the chest near the armpit.  The knife had entered the chest cavity and damaged the right lung.  Each of those wounds was sufficient to have caused death, but the former was the more serious.  With such a wound the deceased could only have survived between 10 and 50 minutes.  In addition there were twelve other slashes and stabs to other parts of the body including the forehead, nose and cheek, top of the head (with penetration through the scalp marking the bone of the skull), the neck, chest, both arms, right hand and right thumb.  The injuries to the right hand were severe;  the hand has the appearance of having been cut in half.

Apart from a cut to one of his fingers, the appellant suffered no significant injury.  He had cuts and scratches to his feet and legs consistent with having walked through the bush, and he had a minor wound to the face, consistent with contact with a stick.

After doing whatever he did with the car and body in the bush, the appellant walked some distance to the house where he persuaded the occupants to bandage his finger and he telephoned a friend who later picked him up.

The appellant was located by police the following morning and made various statements to them over the ensuing hours.  Significant parts of his account that could be independently checked were shown to have been lies.  He denied having telephoned Brad to come to the airport.  He accounted for his own presence there by claiming that some person from the Proserpine Airport had called him to go to the airport to pick up “Kirsty” whom he described as Brad’s girlfriend.  He had not expected Brad to be there.  When he arrived no one was at the airport so he drove out and waited on the side of the road.  The car, he said, was overheating so he put the bonnet up.  Then Brad came along and pulled up.

It is difficult to extract any continuous or coherent version from the various statements made to the police but the following allegations can be extracted.  Upon Brad’s arrival–

“. . .he said something about receiving a phone call too, to pick up someone, or someone rang him. . . . I said, ‘What’s this bullshit?’  I said to him, ‘Are you causing trouble?’ - and said something that he got a phone call to pick up a Kirsty or a Christie or something, and then I said, ‘Oh,’ you know, ‘It’s one of your bullshit things is it?’  And I don’t know if he had the stick with him or he picked it up, and I get a fishing knife I had there, and he sort of, you know - a knife in the car.  I took it out with me and I said, ‘If you want to get rid of me like that,” I said, ‘Do a good job’ and I handed him the knife, and I didn’t think he’d do anything, you know, towards me or anything you know?  And he was going to stab me with it, so I sort of, I grabbed his hand and meanwhile - some reference to marks on the stick, you know, he was stabbing me with this bloody stick.”

After the appellant obtained the knife, he stabbed the deceased in the side and then around the shoulder area.  Brad then said that he was going to kill the appellant, and the appellant then “stabbed him up behind the neck”.

His statements include the following:

“When I went to grab him again, you know, to get his arm and . . . knock the knife out . . . I didn’t have any feeling in my finger.

When he raised the knife and he sort of come at me and, you know, I grabbed him . . . trying to stab me and I was sort of blocking it away with my other hand . . . that’s when he kneed me . . . I sort of half went to my knees and we sort of rolled and . . . sort of he was on top for a minute and, you know, then I was on top and that’s when I sort of got the knife off him and that’s when I stuck him.”

His account continues that he put the deceased, who was at that stage still alive and moaning, into the car.  The appellant drove into the bush where he ran into a tree.  He tried to set the car on fire by lighting paper in the fuel pipe because he “thought that that might encourage Brad to get out of the car”.  He then went to the airport where he had a shower in a toilet block and walked through the scrub to a house where his hand was bandaged.

After his arrest police noted that he was carrying a substantial amount of cash.  He admitted that he had taken it from the deceased’s wallet.

Records produced from telephone companies established that the appellant (contrary to his account) had not received any telephone calls on his mobile telephone on the morning of the killing.  To the contrary they confirmed that he had made a four minute telephone call to the deceased’s workplace at 10.15 that morning.

A mechanical examination of the appellant’s vehicle showed that it had no overheating or other relevant mechanical problems.

The appeal is brought upon alleged errors or inadequacies in the learned trial judge’s summing up on the questions of provocation and self-defence.

PROVOCATION

Attention was drawn by counsel for the appellant to the fact that when first directing the jury on this issue the learned trial judge referred to the test in terms of whether a “reasonable person” might have acted as the appellant did.  The level of response for the purposes of this defence is that of the “ordinary” rather than the reasonable person (Stingel v R (1990) 171 CLR 312).  However when redirecting, his Honour twice referred to the correct test of “an ordinary person”.  These latter directions were given in writing to the jury.  No request was made for further elucidation.  The jury could not have been misled on this account.

It was further submitted that the judge should have made special mention to the jury of the appellant’s personal history, and in particular his broken relationship with Ms Bourchier, in the context of the directions on provocation.  In fact the learned trial judge did present to the jury a good deal of evidence of the broken relationship in the course of his summing up, although not specifically in the present context.  No request of this kind was made for any redirection by defence counsel.  There are reasons for thinking that this was a tactical decision, as the defence may not have wished such matters to be highlighted.  The greater the effect of the domestic ructions on the appellant, the more likely the jury would be to consider that he was indeed the person who set up the rendezvous, and that he did so with murderous intent.  An accused is fully entitled to have alternative defences put, but it is sometimes the case that one defence has a propensity to weaken the other.  It is unrealistic to complain on appeal that a trial judge under-emphasised or failed to mention a factual aspect of a particular defence in circumstances like the present when trial counsel was perfectly content that it be presented in that way.  There are cases where a failure to make special mention of a past relationship of the accused may render inadequate a summing up on provocation (Van den Hock v R (1986) 161 CLR 158, 167-168).  The present case is not such a case.

I do not consider that there is any substance in the submissions complaining of inadequacy of the directions concerning provocation.

SELF-DEFENCE

The unverified statements by the appellant to the police raised self-defence as an issue.  The principal Crown submission on this subject was that the jury would conclude that no question of self-defence truly arose because they would simply reject the appellant’s allegations on that subject.

In summing up on this question his Honour initially stated:

“If the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm, and the person using force by way of defence believes, on reasonable grounds, that that person cannot otherwise preserve himself from death or grievous bodily harm, it is lawful for the person to use any such force to the assailant as is necessary for defence, even though such force may cause death or grievous bodily harm.”

That is a correct statement of the Criminal Code s. 271(2).

Later in the summing up however his Honour said:

“. . . The third aspect of the matter is that the person being assaulted must believe, and a reasonable person must have believed, that it was necessary to act as he did in order to preserve himself from death or grievous bodily harm.  So I will repeat that.  There must be an assault, it must be such as to cause a reasonable apprehension of death or grievous bodily harm, and the person assaulted must believe, and the circumstances must be such that a reasonable person would have so believed, that it is not possible to preserve oneself from death or grievous bodily harm except by doing what was done.”

 (My italics)

Had his Honour “on reasonable grounds” instead of “and a reasonable person must have believed” and “there must be reasonable grounds for his belief” instead of “the circumstances must be such that a reasonable person would have so believed” there could have been no objection.  The balance of this passage of the summing up was a fair paraphrase of s. 271(2).

No one noticed the error, or at least no one complained about it.  There was no request for any redirection on this subject.

Other parts of the summing up tended to restore some focus to the personal situation of the accused.  For example–

“You do not, of course, in the case of considering self-defence, if the evidence raises it for your consideration, approach it by reference to over fine considerations or simply using hindsight.  Of course you have to recognise the sort of circumstances in which a person might be obliged to defend themselves.  That is of course if you think they are the facts of the matter.”

In my view however that did not sufficiently resolve the inconsistency that remained in the two directions quoted above.  This was undoubtedly an error, and this was conceded by counsel for the Crown on the appeal. 

Section 271(2) states:

“If the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm, and the person using force by way of defence believes, on reasonable grounds, that the person cannot otherwise preserve the person defended from death or grievous bodily harm, it is lawful for the person to use any such force to the assailant as is necessary for defence, even though such force may cause death or grievous bodily harm.”

It is unnecessary for the purposes of the present matter to analyse the reasoning of R v Gray (CA No. 439 of 1997, 13 March 1998), which suggests that the final limitation in s. 271(2) of the force that a defender is entitled to use (“such force as is necessary for defence”) is surplusage or at least should be subsumed to the text in the second element of s. 271(2) (namely the defender’s belief on reasonable grounds that he cannot otherwise preserve himself etc.).  The error in the present matter relates to the need for belief by the person using force that he cannot otherwise preserve himself from death or grievous bodily harm.  The error is the same whether or not the summing up were to be based upon the truncated directions suggested in Gray (which postdates the present summing up).  The only error alleged is that the learned trial judge did not focus sufficiently on the actual belief of the appellant.

I accept that there was such an error.  The nature of the error was an unresolved inconsistency between two statements in the summing up - one correct and one incorrect - in circumstances where no one asked for the inconsistency to be resolved.

It was submitted that his Honour further erred in including the following passage in his summing up:

“. . . [I]f the death was caused as a result of striking a blow which was justified in self-defence, then of course the person acts lawfully.  On the other hand, if the death was caused by striking a blow or blows which were not justified in self-defence, then of course it is not lawful.

So it is of some significance to examine the evidence if you thought any of the blows were justified by way of self-defence but some were not, to reach a conclusion about when the fatal blow or blows were struck. 

Of course, if you thought all were justified by way of self-defence, that would be unnecessary.  If you thought none was, that would be unnecessary.

. . .

So that if a person was justified in acting in self-defence and struck the fatal blow or blows acting in self-defence, it would not matter, of course, that later blows which were not fatal blows were struck or inflicted in circumstances which did not amount to self-defence.

Similarly, if you thought that, although a blow or blows might have been inflicted whilst acting in self-defence, the fatal blow or blows were inflicted in circumstances which could not be justified as being in self-defence, then there would be no defence.  The later blows cannot be justified by the fact that earlier blows may have been justified.”

The criticism is that all the wounds were inflicted over a short period of time and that it was not possible on the evidence to determine the order in which they were inflicted.  That may be  correct, although some of the appellant’s statements suggest that some damage may have been done before the major wounds were inflicted.  It was in my view correct for the learned trial judge to advert to the need to focus upon blows which might cause death rather than other blows which would not.  However having regard to the evidence this would seem to be more theoretical than real.

In giving this direction, the judge merely introduced a complication.  If it be assumed to be an unnecessary complication, all it did was to make the Crown’s task more difficult.  I fail to see how this direction in the circumstances of this particular case could be regarded as other than favourable to the appellant.  This point in my view lacks merit.

Proviso

Should the view be taken that no substantial miscarriage of justice has actually occurred, in which case the appeal should be dismissed under s. 668E(1A)?  The unexplained inconsistency in the relevant directions is a relatively serious matter, though in the present case it is not in my view of the kind that should be described as “fundamental” (Wilde v R (1988) 164 CLR 365, 372).

The position is that both a correct and an incorrect direction were given and no request was made for a correction.

The only basis upon which the defence could arise was the appellant’s unverified allegation that the deceased man at some stage had the knife and attempted and threatened to use it, upon which the appellant did what was necessary to get the knife back and thereupon stabbed the deceased fourteen times in self-defence.  In other important parts of his account that could be tested he was shown to be telling lies.  In a situation like the present, the live issue was whether the appellant’s allegations to the police about the acts of a dead man raised a reasonable doubt about anything at all.  Experienced counsel appeared satisfied with the directions.  It is true that theoretical possibilities may be argued of the jury going beyond this, and then rejecting the defence on the basis of the incorrect part of the direction in circumstances where they would have upheld the defence on the basis of the correct part of it.  I find such an argument quite unrealistic in the circumstances of the present case.

This case shows a man consumed with jealousy who maintained extreme anger over an extended period.  He planned an assignation and attack, taking a weapon with him and sharpening it while he waited for the unwitting victim to arrive.  There was an extremely savage and repeated use of this knife on the deceased and an associated absence of significant injury to the appellant.  He revealed a preparedness to tell lies about his involvement.  His attitude toward the deceased was maintained after he had caused death or mortal injury and included subsequent acts of theft, attempted immolation and destruction of the evidence.

In my view on the whole of the evidence it was not reasonably open to the jury to conclude otherwise than it did.  Removal of the ambiguity in the directions could not have brought about any different result.  I would conclude:  that any jury, properly directed and acting reasonably, could not have entertained a reasonable doubt that the appellant may have had a reasonable apprehension of death or grievous bodily harm;  and that such a jury could not have entertained a reasonable doubt that the appellant may have had a belief on reasonable grounds that he could not preserve himself from death or grievous bodily harm otherwise than by doing what he did to the deceased.  Each of the above propositions necessarily excludes the defence.  I also find it hard to see how any jury could regard the appellant’s allegations as other than spurious, but it is not necessary to pursue this aspect.

In my view the conviction involved no substantial miscarriage of justice and the appeal should be dismissed.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 464 of 1997

Brisbane

Before Pincus JA

Thomas J

Dowsett J

[R v Julian]

THE QUEEN

v

GAVIN LESLIE JOHN JULIAN

Appellant

REASONS FOR JUDGMENT - DOWSETT J

Judgment delivered 5 June 1998

The appellant was convicted in the Supreme Court at Townsville of the murder of one Bradley Royal at Proserpine on or about 21 October 1996. The facts as they appear below are derived from the outline delivered on behalf of the appellant and accepted as correct by the Crown.

The appellant had been living in a de facto relationship with Deon Bourchier for approximately 13 years. There were three children of that relationship. It ended on 16 September 1996. Shortly before that date, Ms Bourchier had commenced a relationship with the deceased and after the separation, she moved into a house with him. The Crown case was that the appellant, motivated by jealousy, lured the deceased to Proserpine Airport, intercepted him on the main road leading to the airport and attacked him with a knife. He then put the deceased into the deceased’s own vehicle and drove it into nearby bushland where he attempted to set it on fire.  He also stole $1,000 from the deceased. Royal was later found dead in the vehicle. The defence conceded that there had been a confrontation on the road but alleged that the deceased was the assailant. Self‑defence and provocation were left to the jury.

Following the separation from Ms Bourchier and prior to the killing, the appellant had, on numerous occasions, demonstrated that he was very upset at the breakdown of their relationship and that he did not expect her relationship with the deceased to last.  He had also indicated that he had considered using violence against the deceased. On the day of the killing, the deceased, Ms Bourchier and a Mr Dudgell (who shared a house with them) were working at a farm in the Bowen district known as “Eatough’s”. Between 10 and 10.20 a.m., the deceased received a telephone call from somebody who identified himself as being associated with the Proserpine Airport. The deceased subsequently told Dudgell, Ms Bourchier and a third man, Robert Versteeg that he had to go to the airport to pick up somebody. He told Dudgell and Ms Bourchier that the person was Kelly, a former girlfriend from Victoria who was arriving at 11.20 a.m.. He borrowed Dudgell’s red Commodore sedan to do so. He was dressed in jeans, boots and a white t-shirt. On the previous day, Versteeg had lent him $1,000 so that he could repair his vehicle.

At about 11.30 a.m., airport staff noticed the appellant’s vehicle (a silver station wagon) parked near the airport in a table drain adjacent to the main road. The bonnet was raised, suggesting some sort of mechanical trouble. About 15 to 20 minutes later, another car pulled up beside the first vehicle. By 12.10 p.m., the second car had disappeared, although the first car was still there. At some stage, Mr McNeill, a baggage handler at the airport, drove past the vehicles and saw two people, one sitting on the other. The person on top was moving his right hand and arm in a downward motion. The person on the bottom was wearing a light coloured shirt which had a dark red stain around the top. McNeill executed a u-turn and drove back past the scene. He then saw one person dragging the other towards the passenger side door of the red vehicle. He dialled 000 on his mobile telephone. The first person shut the bonnet of the station wagon, entered the red vehicle and drove away from the airport.  At some stage, McNeill told police that the first person (the person “on top” in the struggle) was wearing jeans. In fact, the appellant was wearing shorts at the relevant time. The 000 call was received by police at 11.55 a.m..   They went to the scene and found the station wagon. They saw evidence of the struggle, including blood stains on the ground.

On the next day, the red Commodore was located in nearby bushland. The deceased was slumped in the front passenger seat. There were extensive bloodstains inside the vehicle, and it was apparent that there had been an attempt to set it on fire. The fuel cap had been removed and burnt paper was found in the fuel filler pipe. A fire had also been set beneath the front of the vehicle. It had caused damage to surrounding scrub. A piece of paper bearing the figures “11.20" was later found between the front passenger seat and the centre console. 

A post mortem examination upon the deceased revealed numerous injuries consistent with knife wounds. The two most significant were:

(a)  A gaping slash wound, 9 cm x 5 cm, to the back left hand side of the neck, which had severed the left carotid artery, the left internal and external jugular veins and cut the trachea. Damage to the surrounding tissues and glands suggested a twisting motion as the stabbing object passed through the tissue. 

(b)  A gaping slash wound, 12 cm x 14 cm deep, on the back right-hand side of the chest near the armpit. The wound penetrated the chest cavity, damaging the right lung.

The cervical vertebrae and ribs were damaged, apparently from stab wounds. Such damage would have required severe force. The deceased had also suffered numerous lesser wounds to the forehead, face, head, neck, chest, shoulder, arms and hands.

After the confrontation on the road, the appellant walked some distance through the bush to the home of Mr and Mrs Crooks, where a wound to his finger was dressed and he was allowed to make a telephone call. He contacted a Mr Power and told him that he had been in a fight and injured his hand. He asked to be collected from Proserpine. Mr Crooks gave him a lift into Proserpine, where he was collected by Mr Power who took him to the Christian Outreach Centre at Bowen. The following morning, he was located there by police.

When interviewed by the police, the appellant asserted that he had received a telephone call summoning him to the airport to pick up somebody called Kirsty whom he understood to be the deceased’s girlfriend. He said that he drove to the airport but found nobody there. He then drove away from the airport and waited at the side of the road. His car was overheating and so he opened the bonnet.  The deceased arrived, and they had a fight. The subsequent interview with the police was tape-recorded. He repeated the above explanation and asserted that the deceased had threatened him with a stick. This appears to have been a short piece of branch. The appellant claimed that he said to the deceased words to the effect of, “You want me out of your life,” and as a bluff, he (the appellant) handed his fishing knife to the deceased, saying, “If you are going to kill me, you’d better do a good job of it.” He said that the deceased then attacked him, stabbing at him with the stick. There was a struggle over the knife, and the appellant stabbed the deceased in the side and then in the shoulder area. He said that the deceased kept saying that he was going to kill him. The appellant then stabbed him behind the neck. He said that while the deceased was still alive, he put him into the car and drove into the bush where he ran into a tree. He admitted trying to set the car on fire. He said that he thought this might have encouraged the deceased to get out of it.  He went to the airport where he showered in a toilet block and then walked through the scrub to the house where his hand was bandaged. He was found in possession of a substantial amount of money and admitted taking it from the deceased’s wallet.

Telephone records demonstrated that the appellant had not received any telephone calls on his mobile telephone on the morning of the killing, but that he had made a four minute telephone call to Eatough’s at 10.15 a.m. on the day in question. An examination of the appellant’s vehicle showed no tendency towards over-heating.

Clearly, this was a very strong Crown case. The appeal against the conviction is based upon criticisms of the directions given by the learned trial Judge to the jury concerning self-defence and provocation.

SELF-DEFENCE

The following directions were given at pp. 309-11:-

“If the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm, and the person using force by way of defence believes, on reasonable grounds, that that person cannot otherwise preserve himself from death or grievous bodily harm, it is lawful for the person to use any such force to the assailant as is necessary for defence, even though such force may cause death or grievous bodily harm.”

His Honour then directed as to the meaning of “assault” and went on:-

“In this case, what is suggested is that the deceased threatened to assault the accused with a knife and a stick. So first of all, in the case of self-defence, there has to be an assault, and that of course may be constituted by a threat to use force. 

The assault must be such as to cause reasonable apprehension of death or grievous bodily harm. That is the second aspect of the matter. The third aspect of the matter is that the person being assaulted must believe, and a reasonable person must have believed, that it was necessary to act as he did in order to preserve himself from death or grievous bodily harm.  So I will repeat that. There must be an assault, it must be such as to cause a reasonable apprehension of death or grievous bodily harm, and the person assaulted must believe, and the circumstances must be such that a reasonable person would have so believed that it is not possible to preserve oneself from death or grievous bodily harm except by doing what was done. 

It is for the prosecution to exclude self-defence beyond a reasonable doubt.”

I have added the underlining.

At pp. 365-366 the following passage appears:-

“You will recall that I told you that what is involved in a consideration of the defence of self-defence. You will understand that one of the aspects of self-defence is the belief that a person cannot otherwise preserve himself from death or grievous bodily harm except by acting in the way that he does and the need for that to be a belief which a reasonable person would have formed.”

Section 271 of the Code provides:-

“(1)When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for the person to use such force to the assailant as is reasonably necessary to make effectual defence against the assault, if the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm.

(2) If the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm, and the person using force by way of defence believes, on reasonable grounds, that the person cannot otherwise preserve the person defended from death or grievous bodily harm, it is lawful for the person to use any such force to the assailant as is necessary for defence, even though such force may cause death or grievous bodily harm.”

Again, I have added the underlining.

In the present case, the appellant sought to rely on sub-s. (2). He complains that the learned trial Judge’s direction concerning the meaning of the underlined words was incorrect, having regard to three decisions, one of the Court of Criminal Appeal, one of the High Court and one of this Court. The first is the decision of the Court of Criminal Appeal in R v. Muratovic [1967] Qd.R. 15, especially per Gibbs J. (as his Honour then was), at pp. 18-19, Lucas J. concurring.  His Honour said:- 

“In R v. Johnson ... Stanley J. described the effect of the second paragraph of the section as follows:

‘The second paragraph of s. 271 deals with major unprovoked assaults. In repelling them, the person using force in self-defence is entitled to use any force which is reasonably necessary to preserve himself from death or grievous bodily harm, if (1) the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm, and (2) the person using the force by way of self-defence believes on reasonable grounds that he cannot otherwise preserve the person defended from death or grievous bodily harm.’

There are only two remarks as to the effect of this paragraph that it seems to me to be necessary to add. In the first place, the word ‘otherwise’ must in my opinion in the context of the section mean ‘otherwise than by using the force which he in fact used’... Secondly, if the two conditions specified in the paragraph are satisfied, it does not become necessary for practical purposes to consider a third question, whether the force used was in fact necessary for defence. If the accused person had an honest and reasonable, although mistaken, belief that the force in fact used was necessary for defence, he is no more criminally responsible than if that force was in fact necessary for defence - s. 24 of the Code. Moreover, if the nature of an assault was such as to cause reasonable apprehension of death or grievous bodily harm, and the accused believed (which must mean honestly believed) on reasonable grounds that he could not preserve the person defended from death or grievous bodily harm otherwise than by using the force that he did in fact use, it must follow that the force in fact used was no more than the accused honestly and reasonably believed to be necessary for defence. In other words, if the jury consider that the nature of the assault was such as to cause reasonable apprehension of death or grievous bodily harm, and that the accused believed on reasonable grounds, that he could not otherwise preserve the person defended from death or grievous bodily harm, or if they are left in doubt on those matters, the issue must be decided in favour of the accused and a verdict of acquittal must be entered, since on that hypothesis the jury could not be satisfied that the force used was more than the accused reasonably believed to be necessary to preserve the person defended from death or grievous bodily harm.”

This passage was adopted by five members of the High Court in Marwey v. The Queen (1977) 138 C.L.R. 630, although Barwick CJ (Aickin J concurring) and Mason J (as his Honour then was) considered that generally, it would be unnecessary to rely upon s. 24 in the context referred to by Gibbs J.. At p. 637 Barwick CJ. said:-

“Further, what the second paragraph of s. 271 calls for is the actual belief by the accused on reasonable grounds of the necessity of the fatal act for his own preservation. That paragraph, it seems to me, when the occasion is appropriate makes the belief of the accused the definitive circumstance. As that belief must be based on reasonable grounds, there is no point in repeating the word ‘reasonably’ before the word ‘necessary’. ... What the second paragraph requires is that the accused believes on reasonable grounds when he does the fatal act that it must be done if he is to survive the assault made upon him. The element of reasonableness is supplied by the need for the belief to be founded on reasonable grounds. If there are such reasonable grounds - a matter for the determination of the jury - the self-defence will itself have been reasonable.”

At p. 638 his Honour continued:-

“... the second paragraph makes the belief of the accused the definitive circumstance. ... As I have indicated, the structure of the second paragraph does not require the qualification of the word “necessary” in that paragraph.”

Stephen J., at pp. 639-40, said:-

“Of the difficulties of construction which that paragraph (s. 271(2)) presents, the chief is whether or not each of its three references to ‘force’ refer to one and the same thing. If they do, and if it is the force in fact used by the accused in defending himself to which they all refer, then the word ‘otherwise’, appearing in that paragraph, will also refer to the force in fact used. ‘Otherwise’ is thus elliptical and bears some such meaning as ‘by means other than that act of force’. That part of the paragraph in which it appears will then refer to the accused’s belief, on reasonable grounds, that he cannot, by means other than that act of force, preserve himself from apprehended death or grievous bodily harm.

On such a view, the third reference to ‘force’, that which it is lawful to use, will call for no adverbial qualification, such as ‘reasonably’ but can be described simply as such ‘as is necessary for defence’. There will be no need for any qualification because this has already been supplied by the requirement that the accused should have reasonable grounds for believing that he cannot ‘otherwise’ - that is, by means other than that act of force - preserve himself from death or grievous bodily harm. ...

Had the Judge charged the jury in terms of the second paragraph of the section he would have told them that if they thought this was a case of reasonable apprehension of death or grievous bodily harm falling within that paragraph of s. 271 they would then have to go on to consider two questions: whether there was a belief on the part of the accused that the force he used was necessary and whether there existed reasonable grounds for that belief. The former inquires as to the state of the accused’s mind; the latter is an objective question in the sense that it does not at all involve the accused’s belief but is exclusively concerned with the jury’s view of the grounds, whether they constitute reasonable grounds for the accused’s belief. The proper direction requires of the jury, in essence, a decision whether they are satisfied beyond reasonable doubt that the accused did not possess the requisite honest belief on reasonable grounds.

The jury’s task will thus involve a subjective element followed by an objective element. The form of question which deals with the objective element ‘Are we satisfied that the accused did not have reasonable grounds for believing that stabbing was necessary?’ cannot, I think, produce an answer different from that which would be given to the question, ‘Are we satisfied that his belief that stabbing was necessary was not a reasonable one?’ If reasonable grounds exist then the belief was itself reasonable. To ask ‘Had he a reasonable belief?’ is not different in substance from asking ‘Had he reasonable grounds for belief?’

The critical question is, then, whether it is a different matter if what is asked is  ‘Was the stabbing reasonable in all the circumstances?’, that being the way in which the question was predominantly posed to the jury. The ‘circumstances’ referred to in this form of question would involve all those matters going to the formation of the accused’s ‘belief upon reasonable grounds’. The only relevant difference which I detect in this last form of question is that it omits, or perhaps only slurs over, the first and subjective element, the possession by the accused of an honest, of an actual, belief. It may do no more than slur it over because possession of that belief is no doubt one very important ‘circumstance’, all of which the jury were told to consider.”

Jacobs J. said at p. 643-4:-

“The summing up was defective in that some passages were so phrased that they could suggest a test of objective necessity, the defect arising largely from the addition of the word ‘reasonably’. The addition of this word would have been meaningful if the test of necessity were an objective one. It added nothing and was practically meaningless when the question was the applicant’s belief in the necessity. In the context of self-defence against an assault causing apprehension of death or grievous bodily harm the belief on reasonable grounds that the force used is necessary is not really distinguishable from the belief on reasonable grounds that the force used is reasonably necessary.”

Finally the matter was addressed by this court in R v. Gray, (C.A. No. 439 of 1997 - judgment delivered 13 March 1998). Reasons for judgment were delivered by McPherson JA, Davies JA. and Fryberg J. concurring. His Honour first pointed out the relative independence of the two sub-sections of s. 271 and the need to avoid importing notions relevant to one into the other, save where that is contemplated by the section.  For example, it is a pre-condition to the operation of both sections that the defender have been unlawfully assaulted without provocation, but this requirement is expressed only in sub-s. (1). In sub-s. (2), it is implicit in the words “the nature of the assault”.  At pp. 6-7 of the reasons, McPherson JA. said:-

“Assuming an unlawful and unprovoked assault, only two conditions need be satisfied for self defence to be available under that sub-section. The first is (1) that the nature of the assault must be ‘such as to cause reasonable apprehension of death or grievous bodily harm’; the second, is that the person using force by way of defence must be someone who (2) believes on reasonable grounds’ that he or she ‘cannot otherwise preserve’ the person being defended from death or grievous bodily harm. If those two requirements are satisfied (or more accurately, if the prosecution fails to disprove them beyond reasonable doubt), then the accused is entitled to be acquitted. In substance, therefore, a person is, by virtue of s. 271(2) justified in killing or doing grievous bodily harm to an assailant if he (or she) reasonably believes that doing so is the only way in which he (or she) can save himself (or herself) or someone else from an unprovoked and life - threatening assault by that assailant.

...The defender must believe that what he is doing is the only way he can save himself or someone else from the assault. He must hold that belief ‘on reasonable grounds’; but it is the existence of an actual belief to that effect that is the critical or decisive factor. There is no additional requirement that the force used to save himself or someone else must also be, objectively speaking, ‘necessary’ for the defence.”

These views are based upon the observations of Gibbs J. in Muratovic, approved by the High Court in Marwey. As pointed out by McPherson JA in Gray, to the extent that any statements in R v. Allwood (C.A. No. 151 of 1997 - judgment delivered 22 August 1997) are  inconsistent with Marwey, they must be treated as incorrect.

The point for present consideration is whether or not the learned trial Judge’s direction adequately reflected the High Court’s decision in Marwey. His Honour said:-

“The third aspect of the matter is that the person being assaulted must believe, and a reasonable person must have believed, that it was necessary to act as he did in order to preserve himself from death or grievous bodily harm.

... the person assaulted must believe, and the circumstances must be such that a  reasonable person would have so believed that it is not possible to preserve oneself from death or grievous bodily harm except by doing what was done.”

McPherson JA. observed in Gray that the defender’s belief is “the critical or decisive factor”.   In Marwey, Barwick CJ described it as the “definitive circumstance”. The other relevant matter for consideration is the reasonableness of the grounds upon which that belief was based. The learned trial Judge did not put the question in that way. His Honour posed the test in two different ways. The first was that:-

1. the appellant must have believed that it was necessary to act as he did in order to preserve himself from death or grievous bodily harm; and

2. a reasonable person must have so believed.

On the second occasion, the proposed test was that:-

1. the appellant must have believed that it was not possible to preserve himself from death or grievous bodily harm except by doing what was done; and

2. a reasonable person would have so believed.” 

There are a number of comments to be made about these formulations:-

1. The use of the word “necessary” in the first example may be contrasted with the use of the expression “not possible” in the second formulation. The word “necessary” is used in the section and is to be preferred for that reason. However it may be that there is no substantial difference in meaning between the different expressions. Certainly, both formulations were calculated to concentrate the attention of the jury upon the appellant’s alleged belief that his action was necessary rather than to invite an inquiry as to what was objectively necessary, thus avoiding the vice identified in Marwey and in Gray.

2. The use of the auxillary verb “must” in the first formulation is to be contrasted with the use of “would” in the second. The peremptory sense inherent in the word “must” implies that in order to justify the act of self-defence, its necessity must be the only conclusion open in the circumstances to the notional reasonable person. The word “would” lacks the same peremptory sense but invites the jury to form a view as to the probable response of the notional reasonable person.

3. Overall, the thrust of the direction was to invite the jury to answer two questions:-

1. As to the appellant’s belief; and

2. As to the belief of a reasonable person.

There was no mention of the grounds for the appellant's belief. Consideration of the belief of a reasonable person is not prescribed by s. 271(2), although it may be argued that his Honour was merely trying to explain the meaning of the expression “on reasonable grounds”. For myself, I do not find such an explanation any more helpful than the actual wording of the section. More importantly, I do not consider that the overall effect of the direction accurately reflected the statutory prescription. As is made clear in Gray, the focus of the exercise must be the belief of the defender. It is to be tested subjectively (as to actual belief) and objectively (as to reasonableness of the grounds). The word “reasonable” is widely used in the law. Great issues are often resolved by reference to it. It is not, however, a term of art. It is an ordinary word having the meaning attributed to it by ordinary people. The Shorter Oxford English Dictionary defines the word relevantly as:-

“Having sound judgement; sensible; sane ... Agreeable to reason; not irrational, absurd or ridiculous ... Not going beyond the limit assigned by reason; not extravagant or excessive; moderate ... of such an amount, size, number, etc., as is judged to be appropriate or suitable to the circumstances or purpose ...”

Inherent in all of these meanings is the element of judgment. This inevitably implies the possibility that reasonable people will differ in their judgments without departing from the bounds of reasonableness. Section 271(2) requires that the defender’s belief must be justifiable by reference to the grounds upon which it is based. It does not contemplate that there will necessarily be only one belief which a reasonable person could hold in the circumstances. The defender’s belief must be reasonably open on the facts, not the only belief open on those facts.

The direction carried a clear invitation to the jury to identify the likely, or even inevitable belief of a reasonable person placed in the position of the appellant and to judge the latter’s actual belief by that standard. In other words, a defence would be available only if the appellant’s belief co-incided with that which would, inevitably or probably, have been held by a reasonable person.  The test prescribed by s. 371(2)  focuses upon the defender’s belief  based on reasonable grounds. No other belief is relevant. To invite the jury to consider the belief of a reasonable person is to distract attention from the “critical or decisive function” or the “definitive circumstance” and to suggest a quite different test.   As in Gray, the question was fundamental to the defence.  Absence of a request for a re-direction should not be regarded as decisive against the appellant, nor can this be a proper case for reliance upon the proviso.

Complaint was also made of his Honour’s suggestion that even if some parts of the stabbing were in self-defence, other parts may not have been. This is a theoretical possibility, but whether it arises in a particular case will depend upon the evidence. As I consider that the conviction must be quashed in any event, no good purpose would be concluded by considering the matter further at this stage.

PROVOCATION

Complaint is also made of his Honour’s directions to the jury on the subject of provocation. The first criticism is that his Honour, on one occasion, used the expression “a reasonable person” instead of the expression “an ordinary person” in explaining the defence of provocation. Clearly, the latter formulation is the correct one. See Moffa v. The Queen (1976-1977) 138 C.L.R. 601 per Barwick CJ. at p. 606, per Gibbs J. at p. 233 and per Mason J. at p. 622. It appears likely that his Honour’s reference to the “reasonable man” was an inadvertent error. In the circumstances, it is unnecessary to take the matter further.

The second criticism is that his Honour erred in directing the jury as to the conduct which might constitute provocation. His Honour referred only to the conduct of the deceased at the time of the confrontation. It is argued that his Honour ought also to have referred to other matters in the appellant’s recent personal history and circumstances to, “identify the implications and to affect the gravity of the particular act or insult”. This is a reference to the break-down in the appellant’s long-standing relationship with Ms Bourchier and her relationship with the deceased.  This submission fails to distinguish between the act of provocation and the circumstances in which that act is to be assessed. It was no doubt relevant for the jury to consider the alleged act of provocation in the context of the special circumstances of the appellant in order to assess the implications of the provocative conduct and to assess its gravity, but that does not lead to the conclusion that such circumstances should themselves have been described as provocation. Section 304 of the Code clearly contemplates an act in the heat of passion caused by sudden provocation. This language is not appropriate to permit the description of past circumstances as being themselves provocative, although they may be relevant to the assessment of other more immediate conduct and if so, the charge should make reference to them.  In the present case, it is difficult to believe that the jury would have overlooked this aspect.

Finally, it is submitted that the learned trial Judge ought to have instructed the jury that:-

“... such emotions as fear or panic as well as anger or resentment could give rise to the loss of control contemplated by the defence of provocation”.              

Reliance is placed upon the decision of the High Court in Van den Hoek v. The Queen (1986) 161 C.L.R. 158. This is little more than a complaint about emphasis. In the circumstances, it is not necessary that I say more about it.

ORDERS

I would allow the appeal, quash the conviction and sentence and order a new trial.