SUPREME COURT OF QUEENSLAND

[1]  McMURDO P:  On 14 November 2005 the appellant was arraigned in the Supreme Court at Brisbane in the presence of the jury panel on one count of murdering Michael Maher and one count of misconduct with a corpse.  Both offences were said to have been committed on 16 August 2003.  He pleaded guilty to the latter charge and in respect of the murder charge he pleaded not guilty but guilty to manslaughter.  The prosecution did not accept his guilty plea in discharge of the murder count.  The jury convicted him on 18 November 2005 of murder.  He appeals against his conviction on two grounds.  First he contends that the learned trial judge erred in failing to leave the defence of provocation for the jury's consideration.  His second contention is that the judge erred in refusing the defence application to exclude some photographic exhibits from the evidence.

The relevant evidence

[2] Before turning to these grounds of appeal it is necessary to set out the relevant evidence at trial.

(a)The pathologist

[3] Dr Guy Lampe conducted the post-mortem examination of the deceased on 18 August 2003.  He attributed the cause of death to the extensive third degree burns to the body.  Some severe burns penetrated the full thickness of the abdominal wall so that the intestines spilt out.

[4] He noted a series of abrasions or superficial scratches on the skin surface.  There were vertical abrasions running down the left side of the face and over the cheek;  horizontal abrasions across the right cheek;  and vertical abrasions down the left side of the back.

[5] He also noted a series of ragged tearing, bursting type lacerations or wounds where some sort of blunt trauma had been applied.  One was about four centimetres long on the left side of the mouth.  Another was behind the left ear, ragged and measuring up to three centimetres.  There was another over the back of the scalp measuring up to six centimetres, another one centimetre wound on the left side of the eye and another through the right eyebrow four and a half centimetres in length.  The majority of these wounds were associated with bruising which suggested they had been caused before death.  There was also some bruising under the point of the chin and a bruise over the right shoulder.

[6] The final set of injuries included a series of incised wounds of the type caused by a knife.  Three were on the right side of the head and scalp near the ear and one across the upper part of the right neck cutting across the chin and penetrating through and fracturing the jawbone.  They measured between eight and 15 centimetres.  The cut above the ear penetrated into the skull causing a depressed skull fracture.  The wound further back on the scalp put a fine fracture through the back of the right side of the scalp.  The superficial wound on the back of the neck was of little consequence.  The absence of bleeding from the skull fractures and the absence of burnt skin into the depths of the wounds suggested that those wounds had been inflicted after the burning of the body and after death.

[7] A small subarachnoid haemorrhage suggested a minor head injury before death.  The deceased's airways contained soot material which suggested that he had been breathing at some stage when he was set on fire.  His blood alcohol level was 0.279 and his urine alcohol level 0.387.

[8] Dr Lampe considered that the deceased's injuries suggested some sort of altercation, with the body being dragged around either before or after death.  Alternatively, he may have fallen over whilst drunk.  The significant blunt trauma to the head suggested the application of some force but it may have occurred if the deceased fell over and injured himself a number of times whilst drunk, although the former was more likely.  The deceased was most likely then incinerated with the resulting extensive burns the cause of death.  Because the burns were severe he estimated that the deceased would have died quite quickly, maybe within anything from a few minutes up to an hour.

[9] He identified from photographic exhibits those injuries which he believed had occurred before and those which he believed had occurred after death.  He identified photographic exhibits 37 and 38 as depicting the body when he examined it.  He was shown a photograph of a barbeque tool and a shovel.  He considered that the three major incised wounds across the right side of the scalp, neck and chin had been caused by the shovel not the barbeque tool.

[10]  He agreed that the injuries to the deceased were consistent with a blow causing him to fall to the ground, followed by a number of blows and kicks around the head, dowsing with kerosene and setting him on fire causing death and after death dragging the body around and using a shovel or other instrument to the head in a near axe type motion.

[11]  In cross-examination Dr Lampe agreed that the areas of injury with bruising which appeared to have been inflicted before death were the wounds to the left eye, the left scalp behind the left ear, the large wound at the back of the head and the bruising on the chin.  These injuries either alone or in combination could have caused unconsciousness.  It was likely the deceased was knocked unconscious and then set on fire.  A single punch delivered to the point of the jaw, depending on how the deceased fell, could possibly account for the pre-death injuries although it would be rare to see so many injuries around the head from one blow and fall.  Two blows could possibly account for the pre-death injuries but he could not say whether the pre-death injuries were caused by one, two, three or four blows.  It was possible that the experience of incineration may have brought the deceased back to consciousness.  There are various levels of unconsciousness and the deceased was very intoxicated.  Burns are extremely painful and could have aroused the deceased out of a state of superficial unconsciousness.

(b)Vanessa Varga

[12]  At the time of the offence the appellant was 30 years old.  His then girlfriend, Vanessa Varga, was 19 years old and was a central prosecution witness.  She lived with her parents in the Kingaroy area.  The appellant also lived in that area but alternated between living at his own property at Proston and with his parents in Kingaroy.  Ms Varga knew the deceased, whom she thought was about 45 years old, as the appellant's drinking mate.  He had lived on the appellant's property in a caravan for about two or three months.

[13]  On Saturday 16 August 2003 between 6.00 pm and 7.00 pm the appellant drove to Ms Varga's home with the deceased.  The appellant said something like "[g]et your stuff and hurry up".  She obliged and travelled with him and the deceased to the appellant's property.  He stopped the car next to the caravan.  All three got out.  The appellant told the deceased to light the kerosene lantern.  She did not hear what the deceased said to the appellant but the appellant responded "Don't disrespect me".

[14]  She gave the following answers when cross examined about this conversation:

"You said [the appellant] told [the deceased] to light the kerosene?  --  Yes.

You said that [the deceased] said something to [the appellant]?  --  Yes.

But you didn't hear what he said?  --  No.

And you said that [the appellant] then said, 'Don't disrespect me', grabbed him by the throat and punched him?  --  Yes.

And where did he punch him?  --  In the face."

[15]  The appellant then hit the deceased with a closed fist grabbing him by the throat.  The deceased fell back as did the appellant.  The appellant punched the deceased whilst he was on the ground three or four times.  On one occasion he jumped on his head.  He kept kicking him but she could not say exactly where.  The deceased was snoring and had passed out.

[16]  The scene was illuminated by the appellant's car lights.  The appellant said "Get up or I'll give you the count of three, I will burn you".  He went into the caravan and returned with kerosene.  He told the deceased he would give him the count of three.  He then poured the kerosene all over the deceased.  He took a lighter from the deceased's shirt and went into the caravan returning with a piece of newspaper.  He told the deceased he would give him the count of three;  he kicked him:  when the deceased did not move the appellant lit the paper and threw it at the deceased.  Ms Varga was standing three to four metres away.  The lighted paper landed on the deceased's arm which caught fire.  The deceased screamed "Help me.  Help me."  She told the appellant to help him but the appellant just laughed.  She told the deceased to run to the dam.  He curled up into a ball and put his head on the caravan steps.  He was so drunk he could not move.  The top part of his body was on fire.  The deceased was wearing a flannelette shirt, jeans and boots.  The shirt was on fire.  The appellant said "We shouldn't have to waste a good pair of boots".  He ripped one shoe off but the other was too hot.

[17]  The appellant asked her to step over the deceased, go into the caravan and get a sharp knife and a siphoning hose because he wanted to hurt himself.  She obliged.  She could not leave the caravan because the deceased and the caravan door were on fire.  She told the appellant to help her but he would not.  She had to climb out the caravan window.  The appellant took the knife from her and put it down his pants.  The deceased was still curled up in a ball with his head on the caravan step.  The appellant was laughing at him.  He went into the caravan for some vegetable oil and then told her to get into the car and not look.  She went to the car.  She saw the appellant pour vegetable oil on the deceased.  As to the knife, she told the appellant that she loved him and not to be stupid:  he threw it in the dam.  As to the siphoning hose, he said he had plenty of petrol and might as well go to sleep, that is, gas himself in his car, but she persuaded him not to do this.  She got out of the car, ran to an esky and took a bucket of water towards the deceased.  The appellant ran at her and told her to put it down, not to touch anything and to get back in the car.  He told her to go home and ring his father but she explained that there was no phone on her parents' property.  The appellant shone his torch in the deceased's eyes and kicked him.  He was hard and all burnt and black.

[18]  She and the appellant drove to his parents' home.  The appellant kept saying that "he killed [the deceased] and kept on laughing."  She told him to slow down because he was driving too fast.  He said "I just killed someone.  Do you want me to drive 20 km/h?"

[19]  When they arrived at his parents' home she went straight to the toilet.  The appellant called her into his room where he was talking to his father.  The appellant told his father that he had killed the deceased.  His father was incredulous and the appellant asked her to verify it.  She said "Yes, he did kill him".  The appellant said "What are we going to do?"  The father said "We'll dump the cunt in the bush".  The appellant just laughed.  He did not care.  The father telephoned another son, Dusty, and a friend, Johnno.  They arrived and left shortly afterwards with the appellant and his father.  She did not see them again that night.

[20]  When she was first interviewed by police she gave a quite different version of events.  She gave a second statement to police, essentially consistent with her evidence in court, because she was concerned that she may be charged and because her parents said that the police did not believe her and that unless she gave another statement she could also be charged.  She had not been in trouble with the police before and thought she would be charged in any case.  She was not charged and was given an indemnity from prosecution.  She understood she had an obligation to give evidence to protect herself from the possibility of being charged.  She agreed she was on medication which affected her memory.

[21]  The trial judge warned the jury to scrutinize Ms Varga's evidence with great care because of her prior inconsistent statement, her immunity from prosecution, the time that had elapsed since the events occurred, because she was on medication that affected her memory and because of inconsistencies between her testimony in this Court and her initial statements to police and her testimony in the Magistrates Court.

(c)Police witnesses

[22]  At about 10.30 pm on 16 August 2003 the appellant went with his father, Dusty and Johnno to the Proston Police Station where they roused Senior Constable Barnard.  Police Officer Barnard noticed that the appellant smelt strongly of and appeared to be affected by liquor.  The appellant told Police Officer Barnard that the deceased had been burnt and that the body was on his property.  He said that they discovered the body when they went to the property to collect some dogs.

[23]  The appellant asked if he could go to the hotel to get a carton of beer.  Police Officer Barnard said this would not be a good idea because detectives would wish to speak to him.

[24]  The appellant largely maintained the account he gave to Police Officer Barnard when interviewed at 1.14 pm the next afternoon by police officers from the Murgon CIB.  That account was patently inconsistent with the appellant's guilty plea to manslaughter.

[25]  When talking to Police Officer Barnard, Davey noticed that the appellant seemed "pretty upset" and was pacing backwards and forwards along the footpath.  He had his arms out to the side:  he waved them around and was ranting and raving.  The police officers, the appellant, his father, Dusty and Johnno drove out in a convoy to the appellant's property.  When they arrived one detective introduced himself to the appellant and asked where the body was.  The appellant came towards him, took off his shirt and adopted a fighting stance.  The appellant continually yelled out aggressively and abusively and threatened to steal a police car.  He was laughing with a cackling laugh.  Later they saw the appellant driving his vehicle with his brother Dusty as a passenger.  Dusty had a swollen and bloodied lip.  The police arrested Dusty and the appellant for obstructing police.

(d)Other evidence

[26]  A bar attendant at the Golden Spurs Hotel at Proston saw the appellant and the deceased drinking there on 15 August 2003 from about 2.00 pm or 2.30 pm.  They drank steadily, about a pot every half hour.  They left about 5.00 pm with a carton of beer.  They seemed to be getting on well and were perfectly normal, shouting each other drinks.

[27]  The appellant's mother saw the appellant and the deceased on Saturday, 16 August 2003.  They did some work on the property in the morning.  After about 1.00 pm they began to drink cask white wine while listening to horse racing on the radio.  At some stage they started to drink beer.  The appellant said that they had not had a winning day but they were in good spirits:  nothing was getting out of hand.  They drank more white wine and left about 6.30 pm for the appellant's property saying they would return the following Friday.  She tried to discourage them from driving to the property because they had been drinking.  They left in a good mood and joked about giving up betting until the following Saturday.

[28]  The appellant's brother Dusty gave evidence that when he went to his parents' home on the evening of 16 August 2003 after a phone call the appellant was crying, shaking and appeared drunk.  The appellant said "that he had a fight with [the deceased] and that he was dead".  He described both the appellant and the deceased as heavy drinkers who drank until they passed out and then drank again as soon as they woke up.  The appellant continued to drink from a cask of wine when he first drove back to his property that evening with Dusty, their father and Johnno.  It was possible the appellant told him that he had burnt the body after the deceased was dead.  They decided to go to the Proston police and give a false account of events which exculpated the appellant.

[29]  Later that night the appellant, his father, Johnno and Dusty all drove back to the property with the police.  The police walked down the driveway but the others drove to the deceased's body on the appellant's direction.  The appellant angrily kicked and pushed the body and told the deceased to get up.  The appellant used a shovel to hit the deceased's head.  Dusty tried to pull the appellant away but the appellant then attacked him.  The appellant picked up and stabbed at the body with a star picket and dragged it around after putting a rope around the neck and a foot.  They eventually got the appellant back to the car and drove off.

The case left to the jury

[30]  The trial judge directed the jury as to the alternative bases relied upon by the prosecution by which they could convict the appellant of murder:  that they were satisfied beyond reasonable doubt either that he burnt the deceased with an intention to kill or do grievous bodily harm or that he assaulted the deceased rendering him unconscious with an intent to kill or do grievous bodily harm and that that assault, which may have been one punch, contributed substantially or significantly to the death.

[31]  The defence as left to the jury was first, that on either basis relied on by the prosecution the appellant's alcohol-induced intoxication meant that the prosecution had not established beyond reasonable doubt that the appellant intended to kill or do grievous bodily harm at the requisite time and second, relevant to the first basis relied on by the prosecution, it had not established beyond reasonable doubt that he intended to kill or do grievous bodily harm when he set alight the deceased because he mistakenly believed the deceased was already dead.

Provocation

[32]  Defence counsel at trial submitted to the judge, at the close of the evidence and before counsels' addresses to the jury, that the issue of provocation was raised on the evidence and should be left for the jury's consideration.

[33]  The learned primary judge refused to leave provocation to the jury because there was no direct or indirect evidence as to whether whatever was said by the deceased immediately before the appellant assaulted him could have amounted to provocation within s 304 Criminal Code.  His Honour stated:

"… no reasonable jury could, on the evidence adduced and inferences available in this case, consider that the circumstances were such as to raise a reasonable doubt about provocation.  The paucity of evidence means that there is no arguable basis for a contention that some conduct of the deceased could, by any reasonable possibility, have provoked an ordinary, sober person in the position of the [appellant] to have reacted with any of the violence that the [appellant] inflicted on the deceased in the act or acts of the [appellant] which led to the death."

His Honour noted that the issue of provocation should be left to the jury if there was the least doubt that the evidence was sufficient to raise it.  His Honour considered however that he should withhold the issue from the jury if no reasonable jury could find the evidence sufficient to raise a reasonable doubt on provocation, relying on this Court's observations in R v Buttigieg.[1]  His Honour concluded that a reasonable jury in this case would be bound to conclude that the prosecution had satisfied them beyond reasonable doubt that the killing was unprovoked.

[34]  The appellant concedes there are difficulties with the claim of provocation.  There was no evidence as to what the deceased said or did to prompt the appellant to respond "Don't disrespect me" and then to punch the deceased.  The appellant's extraordinary behaviour towards the police and to his brother well after the deceased was dead suggested that he was not an ordinary person with ordinary powers of self control.  The appellant contends that the test referred to by the trial judge in Buttigieg[2] is no longer apposite in the light of the observations of McHugh and Callinan JJ in Stevens v The Queen[3] and that despite the weaknesses in the evidence of provocation, the evidence was sufficient to raise the issue of provocation for the jury's consideration.

[35]  The judgment of this Court in Buttigieg included the following pertinent statements:

"(a)In a case where the evidence gives rise to a question of provocation, the onus lies on the prosecution to disprove provocation beyond a reasonable doubt:  Stingel (at 332-333, 334:  199, 200).

(b)The question whether provocation should be left to the jury falls to be resolved by reference to the version of events most favourable to the accused:  Stingel (at 318:  188).

(c)The judge should withhold the issue of provocation from the jury if it is such that no reasonable jury could hold the evidence sufficient to raise a reasonable doubt:  Rose [1967] Qd R 186 at 192:  Stingel (at 333:  199).  However, a trial judge should leave the issue to the jury if in the least doubt whether the evidence is sufficient: Callope (at 462-463):  Van Den Hoek (at 161-162, 169:  100, 106):  Stingel (at 334:  200).

The failure of an accused person to testify is not fatal to provocation and a jury is able to infer provocation from evidence, suggesting a possible loss of self control:  Lee Chun-Chuen [1963] AC 220 at 233:  Van Den Hoek (at 169:  106).

Further, if there is evidence, it is the duty of the judge to leave the question of provocation to the jury notwithstanding that it has not been raised by the defence and is inconsistent with the defence which is raised:  Stingel (at 333, 334:  199, 200).

…"

[36]  In the more recent decision of Masciantonio v The Queen,[4] Brennan, Deane, Dawson and Gaudron JJ considered that:

"The answer to the question whether the trial judge should have left provocation to the jury … depends upon whether there was evidence which was capable of constituting provocation.  However, because the onus of disproving provocation rests upon the prosecution once there is evidence to raise the question, the actual test must be expressed somewhat more precisely.  It is 'whether, on the version of events most favourable to the accused which is suggested by material in the evidence, a jury acting reasonably might fail to be satisfied beyond reasonable doubt that the killing was unprovoked in the relevant sense'.  The question is the same when a trial judge is considering whether or not to leave provocation to the jury as it is when an appellate court is considering whether it ought to have been left, but as a matter of practicality a trial judge is likely to lean towards leaving provocation if he or she can.  As was observed by the Privy Council in Lee Chun-Chuen v The Queen 'there is a practical difference between the approach of a trial judge and that of an appellate court.  A judge is naturally very reluctant to withdraw from a jury any issue that should properly be left to them and he is therefore likely to tilt the balance in favour of the defence.  An appellate court must apply the test with as much exactitude as the circumstances permit.'"

[37]  The gravamen of provocation under s 304 Criminal Code is the sudden and temporary loss of self control: Van Den Hoek v The Queen,[5] R v Pangilinan,[6] R v Cowan.[7]  The prosecution must satisfy the jury beyond reasonable doubt that the appellant did not act under provocation before the jury can return a verdict of murder.  The prosecution will satisfy this onus by establishing beyond reasonable doubt any one of the following: that the deceased did or said nothing to cause provocation:  or that the deceased's statements or actions did not in fact cause the appellant to lose self control:  or that the appellant was not acting in the heat of passion when he assaulted the deceased:  or, and most relevantly here, that an ordinary person in all the circumstances would not have lost control.  If, however, the jury has a reasonable doubt about any of those issues they must acquit of murder and convict only of the lesser charge of manslaughter.

[38]  I do not find Stevens, which concerns s 23 Criminal Code in the context of a circumstantial case, of particular assistance here.  Stevens does nothing to diminish the worth of this Court's statements in Buttigieg.  In the present case Ms Varga's evidence was that the deceased said something, but she did not hear what, to the appellant who then immediately assaulted the drunken deceased, perhaps rendering him unconscious and later incinerating and killing him.  A reasonable jury would inevitably have been satisfied that an ordinary person in the circumstances established by the evidence most favourable to the appellant would not so have lost control, as a result of whatever the deceased said, to have incinerated the deceased with a murderous intention.  But that was not the only basis on which the jury could have convicted the appellant of murder.  On the uncontentious judicial directions given, the jury may have considered that the appellant committed the initial assault with a murderous intent and that the initial assault significantly contributed to the death.  If so, there was evidence from Ms Varga from which the jury could infer that the appellant may have reacted to whatever was said by the deceased and lost self control during that initial assault with murderous intent.  It was then for the prosecution to negative provocation by satisfying the jury beyond reasonable doubt of at least one of the four factors set out in the preceding paragraph.  The most relevant factor here is whether an ordinary person in all the circumstances would  so have lost control.

[39]  The passage quoted earlier from Masciantonio recognizes that the test for a trial judge in deciding whether provocation should be left to the jury is the same test to be applied by this Court in deciding whether provocation ought to have been left to the jury:  in deciding that question a trial judge is more likely to tilt the balance in favour of the defence and where there is the slightest doubt leave the issue of provocation for the jury.  The test is whether, on the version of events most favourable to the appellant suggested by material in the evidence, a jury acting reasonably might fail to be satisfied beyond reasonable doubt that the killing was unprovoked.

[40]  There was no evidence that the appellant subsequently complained to Ms Varga, his father, his brother Dusty, or Johnno about what the deceased said to him prior to the initial assault.  There was no evidence that he told anyone that he lost self control because of what the deceased said.  He told his brother Dusty only that he had a fight with the deceased.  None of this suggests provocation under s 304 Criminal Code.  On the other hand, the appellant's mother gave evidence that he and the deceased were on good terms and had left her home shortly before the initial assault in a jovial frame of mind.  Ms Varga's evidence strongly suggests that the deceased said something which triggered a violent reaction on the part of the appellant during which he assaulted the deceased, punching and kicking him on the ground, jumping on his head, and rendering him unconscious.  The jury could have concluded that the appellant assaulted the deceased at this time with a murderous intent.  The appellant had no reason to kill the deceased with whom he had been friendly immediately beforehand.  The evidence is consistent with him suddenly and temporarily losing self control at the time of the initial assault as a reaction to something said by the deceased.  One view of the evidence of the appellant's bizarre behaviour after the death may be that it is inconsistent with the loss of control at the time of the initial assault being that of an ordinary sober person.  On the other hand, people react in very different ways to stress, trauma and grief.  A jury would, perhaps, most likely conclude beyond reasonable doubt on all this evidence that, whatever the deceased said to the appellant before the initial assault, it was not something which would have caused an ordinary sober person in all the circumstances to lose control and to violently assault the deceased in the pre‑incineration attack.  But that is not enough to justify taking the issue of provocation away from the jury.  Despite the significant difficulties for the defence on the evidence, the judge was wrong to conclude that a reasonable jury would inevitably be satisfied beyond reasonable doubt that the killing was unprovoked in the circumstances.  This was entirely a matter for the jury and it should have been left for their consideration.

Should the photographs have been excluded?

[41]  The appellant contends that the trial judge erred in exercising his discretion under s130 Evidence Act 1977 (Qld) in not excluding photographic exhibits 37 and 38, which show the deceased's burnt and battered shoulders, neck and face, because their probative value did not exceed their very great prejudicial effect.

[42]  The learned primary judge recognized that he had a discretion to exclude the photographs and that they did show "ghastly" injuries but he was satisfied that the jury was unlikely to be distracted in their task by the photographs.  His Honour considered that the photographs had potential probative value in the prosecution case where the evidence of injuries after the initial altercation in which the victim was rendered unconscious were relied upon to show the high level of animosity borne by the appellant to his victim tending to establish that the attack was motivated by an intention to kill or to cause grievous bodily harm.  In his summing up the judge warned the jury to approach their task without sympathy or prejudice.

[43]  In addition to the matters mentioned by the judge, the photographs provided some assistance in understanding Dr Lampe's evidence of the position of the before and after death injuries.  Had provocation been left as an issue to the jury, a ruling made only at the close of the evidence, the photographs would have been relevant to whether the injuries to the deceased occurred before death, whether they contributed to death, whether the appellant lost control and whether an ordinary person in all the circumstances would have so lost control.  Whilst the photographs depicted horrific injuries, all the evidence surrounding the killing of the deceased and the interference with his body was gruesome.  The photos were hardly more shocking than the chilling evidence of Ms Varga as to the appellant's bizarre conduct or Dr Lampe's grisly clinical description of the deceased's extensive injuries.  The judge's decision not to exclude the photographs was an unexceptional and quite proper exercise of discretion.  This ground of appeal fails.

Section 668E(1A) Criminal Code

[44]  The primary judge's decision not to leave the question of provocation for the jury's consideration was, for the reasons I have given, an error of law.  This will result in the appeal being allowed and the quashing of the appellant's conviction for murder unless this Court considers that the appeal should instead be dismissed because "no substantial miscarriage of justice has actually occurred" (s 668E(1A) Criminal Code).

[45]  Although the case against the appellant was compelling, there was a logical basis upon which a reasonable jury properly instructed could consider that the prosecution had not disproved provocation beyond reasonable doubt.  The appellant was wrongly denied the opportunity to have the jury consider a defence to the charge of murder which was open on the evidence.  Had provocation been left for the jury's consideration his conviction on murder was not inevitable.  The failure to leave the issue of provocation to the jury has resulted in a substantial miscarriage of justice.

[46]  I would allow the appeal against conviction, set aside the conviction on murder and order a retrial on the offence of murder.

[47]  FRYBERG J:  For the reasons stated by the President, the second ground of appeal should be rejected.  I do not wish to add to what she has said about that ground.  I turn to the question of provocation.

[48]  I agree with the President that the appellant's submissions based on the dicta of McHugh and Callinan JJ in Stevens v The Queen should be rejected.

[49]  In Queensland, provocation reduces what would otherwise be an offence of murder to an offence of manslaughter by reason of the existence of s 304 of the Criminal Code, and only by reason of the existence of that section.  In the absence of that section, no question of applying the common law could arise.  The section provides:

“Killing on provocation

304When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation, and before there is time for the person’s passion to cool, the person is guilty of manslaughter only.”

[50]  When instructing a jury on the law contained in a provision of the Code (or of any other statute), a trial judge conventionally breaks up the relevant section or sections into “elements”.  How the elements are defined in the instruction will depend not only on the wording of the relevant section, but also on what is in issue in the particular case.  Sometimes an element may be constituted by a clause, sometimes by a phrase and sometimes by a single word.  Sometimes it may be convenient to identify sub-elements.  The identification and explication of elements by the judge is an important part of jury instruction.  It enables juries to approach the law relating to the matters at issue in a particular case in manageable and focused “bites”.  It counters the confusion which the words of a section of the Code taken as a whole could create in the jurors’ minds.

[51]  The process of identifying the elements of a statutory provision has another advantage: it focuses the judge's mind more precisely on the relevant issues of law.  Once these are identified it becomes possible to identify the evidence which is relevant to those issues.  Summarising the evidence relevant to each element is an important part of the task of the trial judge in formulating the charge to the jury.  In addition, identifying each element of a provision enables a judge who is required to rule on a question relating to whether there is sufficient evidence for a matter to go to the jury, to focus on the evidence (if any) relevant to the matter.

[52]  To prove its case the prosecution must usually prove every element of an offence beyond reasonable doubt.[8] Where a provision is one which creates an offence, the conventional approach referred to above generally assists a jury by producing a list of matters all of which the prosecution must prove to that standard.  Likewise, where a provision is one which creates a defence and the onus of proof lies on the accused, the approach assists by producing a list of matters all of which the defence must prove, usually on the balance of probabilities.[9]  Where the provision in question is one which creates a defence and the prosecution bears the onus of excluding that defence beyond reasonable doubt,[10] the approach also assists by producing a list of matters.  In this situation, however, the prosecution may satisfy the onus which lies upon it by excluding the existence of any one of the elements of the provision in question.  If the jury are satisfied beyond reasonable doubt that the prosecution has excluded the existence of one element of the provision, they must as a matter of logic be satisfied to that standard that the provision has no application.

[53]  The conventional approach is equally applicable where the “defence” in question is one which reduces the gravity of the offence rather than excludes criminal responsibility completely.  Section 304A of the Code furnishes an example of such a defence where the onus is upon the accused to prove the defence.  Section 304 furnishes an example where the onus is upon the prosecution to exclude it.

[54]  Notwithstanding the onus which lies upon the Crown to disprove the defence under s 304 (or any other section upon which it carries the onus), the section falls for consideration by the jury only if the defence has been raised by the evidence.[11]  Only then should the trial judge refer to it in instructions to the jury.  Whether the defence has been raised is a question for the judge.  That question

“can be summarized as being whether, on the version of events most favourable to the accused which is suggested by material in the evidence, a jury acting reasonably might fail to be satisfied beyond reasonable doubt that the killing was unprovoked in the relevant sense.”[12]

The requirement for the existence of material “in the evidence” is supported by Van Den Hoek v The Queen, where Gibbs CJ, Wilson, Brennan and Deane JJ said, “The question that then arises is whether there was evidence which, if believed, might reasonably have led the jury to return a verdict of manslaughter on the ground of provocation.”[13]

[55]  That requirement does not mean that there must be direct evidence of provocation.  A fortiori it does not mean that the accused must testify that he was provoked.[14]  The expression “suggested by material in the evidence” is apt to refer to possible inferences.  The possibility of provocation may be inferred from circumstantial evidence.  However, as we so frequently tell juries, inferences must be rational inferences based upon evidence; guesswork, speculation or intuition are not permitted.  In Barca v The Queen, Gibbs, Stephen and Mason JJ said:

“When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are ‘such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused’: Peacock v The King (1911) 13 CLR 619, at p 634. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be ‘the only rational inference that the circumstances would enable them to draw’:  Plomp v The Queen (1963) 110 CLR 234, at p 252; see also Thomas v The Queen (1960) 102 CLR 584, at pp 605-606.  However, ‘an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence.’ (Peacock v The King (1911) 13 CLR, at p 661). These principles are well settled in Australia.”[15]

After examining the evidence in that case, their Honours concluded, “In these circumstances it was open to the jury to think that the hypothesis that Carmello Barca had committed the murder could reasonably be based upon the evidence.”[16] That sentence was cited with approval and emphasis by McHugh J in Stevens v The Queen.[17]

[56]  An offence may be left for the jury to consider only if there is sufficient evidence to prove each and every element of the offence to the requisite standard.  Insufficiency in relation to any one element will as a matter of law mean that the prosecution of the charge must fail.  Equally, a defence, the onus of proof of which rests upon the accused, may be left for the jury to consider only if there is sufficient evidence to prove each and every element of the defence to the requisite standard.  Again insufficiency in relation to any one element will as a matter of law mean that the defence must fail.  In neither case should the trial judge leave the charge or defence to the jury when there exists such an insufficiency.  Where the onus is on the prosecution to exclude a defence, and to do so beyond reasonable doubt, the question whether on material in the evidence a jury acting reasonably might fail to be satisfied beyond reasonable doubt must also be answered in the affirmative in relation to every element of the defence if the defence is to go forward.  If it cannot be so answered, the defence should not be left to the jury.  To express the matter in less convoluted language, there must be material in the evidence to raise (in the sense discussed above) every element of the defence.  A trial judge should withhold the defence if the material in the evidence fails to do so.  Similarly, if on appeal it is contended that a trial judge wrongly withheld such a defence from the jury, the question for the appeal court is whether there was at least one element of the defence not raised on material in the evidence.[18]

[57]  The submissions on behalf of the respondent in the present case addressed only one element of s 304: that embodied in the word “provocation”.  They tacitly conceded that there was material in the evidence sufficient to raise issues as to whether the appellant did the act which caused death in the heat of passion and (at least in relation to the second basis upon which the Crown case was left to the jury[19]) before there was time for that passion to cool; and as to whether if there was provocation, it was sudden provocation.  The opening clause of the section was, of course, not merely raised; it was proved by the evidence.  That is implicit in the jury's verdict.

[58] It is now settled in Queensland that “provocation” in s 304 of the Code is defined not by s 269 but by the common law.[20]  However that does not mean that one substitutes all of the elements of the defence of provocation at common law for the word “provocation” in the section.  To do so would result in duplication of other elements of the section.  Rather, the focus of the word is upon the conduct of the deceased and the qualities which that conduct must possess to permit the defence at common law.  If the matter is left to the jury, the question which they must consider is, could the deceased's conduct have caused an ordinary person to lose self-control and act in such a way as the accused acted and to do so with the intent to cause death or grievous bodily harm.  Implicit in this question is the notion of objective proportionality between the suggested provocative conduct and the response.  Also implicit in it is the requirement to assess the effect on an ordinary person of provocation of the gravity of that offered by the deceased.

[59]  In the present case there was no evidence of any conduct on the part of the deceased which could have had the effect just described.  With all due respect to the contrary view, the jury could not in my judgment have inferred from the facts that the deceased and the accused were on apparent good terms, that the deceased said something to the accused, and that the accused then said “Don't disrespect me” and assaulted the deceased, that the deceased said something which could have caused an ordinary person to lose self-control and attack him with intent to kill or do grievous bodily harm.  Doubtless the jury might have inferred that the deceased said something which caused the accused to lose self-control and launch such an attack, but that is an entirely different matter. There was no evidence upon which the jury could rationally have concluded that an ordinary person might have reacted the same way.  Speculation or bare possibility were not enough.

[60]  Counsel for the appellant pressed the argument about provocation particularly in relation to the second basis upon which the Crown case was left to the jury.  However he did not abandon it in relation to the first basis, which was incineration of the deceased with an intent to kill or do grievous bodily harm.  No argument was addressed to us regarding whether a reasonable jury could have been satisfied beyond reasonable doubt that the burning happened before there was time for any passion caused by the deceased's words to have cooled.  If the outcome of this appeal depended upon that point, I would wish to have it argued.  There is, however, no need for that.  The conduct and circumstances said to be sufficient to raise provocation are identical in respect of each basis upon which the Crown case was put to the jury.  If there was sufficient material in the evidence to raise the possibility that the deceased said something which could have caused an ordinary person to lose self-control and attack him with intent to kill or do grievous bodily harm, that possibility existed independently of the method of attack.  It would make no difference whether the appellant's instant response was to hurl flammable fluid over the deceased and set him alight or to punch, kick and jump on him with murderous intent.  There would still have been sufficient material in the evidence to raise the element of “provocation” within the meaning of s 304.  (That is why, if I were of the view that this element was raised by material in the evidence, I would wish to have argument on the element of whether the act was done before there was time for the passion to cool.) By the same token, if the element of provocation was not raised in relation to the first basis of the Crown case, I cannot see how it was raised in relation to the second basis.

[61]  I am relieved of the need to expand upon or further explain my conclusion in para [59] by the analysis made by Douglas J in his reasons for judgment.  I agree with what he has written.  If one applies the “sensible direction” test approved by this Court in R v Skerritt,[21] that analysis demonstrates the impossibility of formulating a meaningful direction on “provocation”.

[62]  On the version of events most favourable to the appellant, no reasonable jury could have failed to be satisfied beyond reasonable doubt that the killing was not within s 304 of the Code.  The ruling by Byrne J was correct.

[63]  The appeal should be dismissed.

[64]  DOUGLAS J:  I have had the advantage of reading the reasons of the President and shall not repeat the evidence set out by her Honour.  I agree with her Honour that no error occurred when the trial judge refused to exclude exhibits 37 and 38 and that the decision in Stevens v The Queen (2005) 80 ALJR 91; [2005] HCA 65 does not assist particularly with the resolution of this case.

[65]  To my mind, however, there are real problems in seeking to infer from the behaviour of the appellant that something had occurred which justified leaving the defence of provocation to the jury.  What is known is that the deceased and the appellant were friends and drinking partners and that the deceased said something unknown to the appellant, after which the appellant said “Don’t disrespect me”, grabbed the deceased by the throat, assaulted him and, eventually, killed him in circumstances which suggest a loss of self-control. The evidence does not suggest that the appellant had ordinary powers of self-control: in fact, quite the contrary. There is no evidence from which one could infer that something was said or done that could have caused an ordinary person with ordinary powers of self-control to behave as the appellant did. 

[66]  The common law test for provocation, which applies to the usage of the word in s 304 of the Criminal Code,[22] requires an examination of the effect of the conduct said to give rise to the provocation on the mind of an ordinary person.  As Brennan, Deane, Dawson and Gaudron JJ said in Masciantonio v The Queen (1995) 183 CLR 58, 66:

“The provocation must be such that it is capable of causing an ordinary person to lose self-control and to act in the way in which the accused did.  The provocation must actually cause the accused to lose self-control and the accused must act whilst deprived of self-control before he has had the opportunity to regain his composure.”

[67]  The necessary corollary of that test is that there should also be objectively ascertainable evidence of the conduct said to constitute provocation to measure against the capacities of the ordinary person and any relevant characteristics of the accused.  The court has “to see what was the extent of the provocation as disclosed by the evidence which the jury had to consider”.[23] Where all one has is an unknown statement by the deceased, followed by the appellant saying “Don’t disrespect me” and objectively bizarre behaviour by him, there is nothing available to the jury to measure against the capacities of an ordinary person or any relevant characteristics of the appellant.  In other words, the appellant’s subjective reaction to whatever was said by the deceased cannot be used as the touchstone to measure what was capable, objectively, of causing an ordinary person to lose self-control.

[68]  The following passage in Masciantonio at 66 - 67 only makes sense in the context where the gravity of the conduct said to constitute provocation is known and can be assessed by reference to the characteristics of the ordinary person and relevant characteristics of the accused. Their Honours said:

“The test involving the hypothetical ordinary person is an objective test which lays down the minimum standard of self-control required by the law. Since it is an objective test, the characteristics of the ordinary person are merely those of a person with ordinary powers of self-control. They are not the characteristics of the accused, although when it is appropriate to do so because of the accused's immaturity, the ordinary person may be taken to be of the accused's age.

However, the gravity of the conduct said to constitute the provocation must be assessed by reference to relevant characteristics of the accused. Conduct which might not be insulting or hurtful to one person might be extremely so to another because of that person's age, sex, race, ethnicity, physical features, personal attributes, personal relationships or past history. The provocation must be put into context and it is only by having regard to the attributes or characteristics of the accused that this can be done. But having assessed the gravity of the provocation in this way, it is then necessary to ask the question whether provocation of that degree of gravity could cause an ordinary person to lose self-control and act in a manner which would encompass the accused's actions.”

[69]  One of the best statements of the English common law as to provocation before the Homicide Act 1957 (Eng) is said to be found in Devlin J’s summing up reproduced by Lord Goddard CJ in R v Duffy [1949] 1 All ER 932, 932 - 933:

“Provocation is some act, or series of acts, done by the dead man to the accused which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self‑control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind.”

[70]  That focus on the nature of the acts and their likely effects on a reasonable or “ordinary”[24] person illustrates the objective nature of the test and the need to know what the allegedly provocative act or acts were. There was no such evidence here.

[71]  That loss of self-control may be inferred from other evidence, as Mason J said in Van Den Hoek v The Queen (1986) 161 CLR 158, 169 in reliance on what was said by Lord Devlin in Lee Chun-Chuen v The Queen [1963] AC 220, 232 - 233, does not allow the inference sought to be drawn here, that whatever may have been said by the deceased could have been provocative in the objective sense required by the law.  As Lord Devlin went on to say in Lee Chun-Chuen 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 of 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. Viscount Simon L.C. said in Mancini v Director of Public Prosecutions ([1942] AC 1, 12): ‘it is not the duty of the judge to invite the jury to speculate as to provocative incidents, of which there is no evidence and which cannot be reasonably inferred from the evidence. The duty of the jury to give the accused the benefit of the doubt is a duty which they should discharge having regard to the material before them, for it is on the evidence, and the evidence alone, that the prisoner is being tried, and it would only lead to confusion and possible injustice if either judge or jury went outside it.’ This warning which Viscount Simon LC applied to provocative incidents applies equally to loss of self-control and to the other elements which constitute provocation in law.”

[72]  The passage of the decision of this Court in R v Buttigieg (1993) 69 A Crim R 21, 27 that says “a jury is able to infer provocation from evidence, suggesting a possible loss of self-control”, purportedly in reliance on these passages in Van den Hoek and Lee Chun-Chuen, misstates their effect. They are, as I have said, authority for the different proposition that loss of self-control may be shown by inference rather than direct evidence.

[73]  What I regard as the correct approach to evidence of provocation appears later on the same page of Buttigieg in this form:

“(f) Conduct can amount to provocation for the purpose of s 304 of the Code if a reasonable jury could conclude that it might be capable of provoking an ordinary person to retaliate as the accused person did ...”

[74]  There then follows in Buttigieg at 27 - 35 an extended analysis of the types of conduct that, viewed objectively, could amount to provocation. Needless to say there was direct evidence in that case of the conduct said to amount to provocation.

[75]  In my view the learned trial judge was correct in refusing to leave the question of provocation to the jury.  I would dismiss the appeal.