SUPREME COURT OF QUEENSLAND

1. McMURDO P:  I would allow the appeal against conviction, set aside the verdict of guilty of murder, and order a retrial. 

2. Lyons J has set out the relevant facts and issues. I will not repeat these other than to explain my reasons for allowing the appeal. I agree with Lyons J's reasons for concluding that on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of murder. I also agree with her Honour's reasons for concluding that the prosecutor's closing address did not in the circumstances amount to or cause a miscarriage of justice. My reasons for allowing the appeal arise from an aspect of the learned primary judge's directions to the jury as to provocation.

The judge's directions to the jury

3. In order to fully explain my reasons, it is necessary to set out in full her Honour's directions to the jury on provocation. The judge rightly identified for the jury that the central question in this case was whether the appellant was guilty of murder or guilty of manslaughter.  Her Honour explained that all that was in issue was whether the prosecution had proved beyond reasonable doubt an intention to kill or do grievous bodily harm and, if so, whether the prosecution had disproved provocation beyond reasonable doubt. 

4. Her Honour continued:

"Both counsel talked to you at length yesterday afternoon in their addresses about provocation. You only consider provocation if you provisionally reach the view that the [appellant] had the necessary intent to kill or cause grievous bodily harm to his father and that he would otherwise be guilty of the offence of murder. Provocation is only a partial defence. If it applies, it reduces what would otherwise be a verdict of guilty of murder to one of guilty of manslaughter. When a person kills another under circumstances which would constitute murder and he does so in the heat of passion caused by sudden provocation and before there is time for his passion to cool, he is guilty of manslaughter only.

Provocation consists of conduct which causes a loss of self-control on the part of the [appellant] and which could be capable of causing an ordinary person to lose self-control and to act in the way in which the [appellant] did. The [appellant] must actually have been deprived of self-control and killed the other person whilst so deprived. The prosecution must exclude the defence of provocation beyond reasonable doubt.

There are two questions which our law requires you to consider in relation to provocation, two broad questions. The first question is: did the deceased’s conduct, the things which you find the deceased did or said or both, cause the [appellant] to lose his self-control and act in the way he did? The second question is: could the conduct of the deceased have caused an ordinary person, in the position of the [appellant], to have so far lost control as to have formed an intent to kill or inflict grievous bodily harm on the deceased and to act on it?

The prosecution will have excluded the defence of provocation if you are satisfied beyond reasonable doubt that the answer to either of these questions is 'no'. In relation to each of the questions, if you are not satisfied beyond reasonable doubt that the answer to that question is, 'No.', then the [appellant] gets the benefit of that reasonable doubt in relation to that question.

Now, I am going to explain this in more detail, and I think what I have said to you will make more sense after I expand on my explanation. Let us go back to the first question: did [the deceased's] conduct cause [the appellant] to lose self-control and act the way he did? There must be a causal connection between the conduct of the deceased and the loss of self-control by the [appellant]. In determining whether there was such a connection, you must consider the gravity of the provocation so far as the [appellant] is concerned. It is a matter for you as to what facts you are able to find or infer about the movements and the interaction of the [appellant] and the deceased after Graham Pollock, Lindsay Brownlie and Megan Bray departed the house.

[The appellant's counsel] read out to you the evidence of Lindsay Brownlie, Megan Bray and Graham Pollock as to the angry and threatening state that the deceased was in immediately prior to their departure. The [appellant], in his record of interview, referred to the deceased "fucking snapped me last night", but did not or could not elaborate when questioned about it. You’ll be listening to the record of interview again and the bits I have referred you to in the record of interview and that counsel have referred you to in the record of interview, and you will be able to hear it again in context.

Zoe Spottiswood told you about waking to the sound of arguing and seeing the guy she met rolling around and wrestling on the bedroom floor. Miss Spottiswood gave evidence of how she saw the [appellant] drag the deceased out of the bedroom. In contrast, you have Lindsay Brownlie’s evidence of what the [appellant] told her a few days later about his father jumping out of the bathroom window after they had had a fight.

The evidence of provocative conduct on the part of the deceased that is closest in time to the actual killing is the evidence of Lindsay Brownlie about what the deceased told her that the [appellant] - I said that wrongly - about what the [appellant] told her that the deceased said to him. I will just repeat that to you. The evidence of provocative conduct that is closest in time to the actual killing is the evidence of Lindsay Brownlie about what the [appellant] told her that the deceased said to [him].

Now, there were a couple of passages in her evidence where she expressed it in slightly different but in similar terms. I will just read out one of those passages at page 133 of the transcript, lines 24 to 25. The question in cross-examination was, "And you told us something that he said his father said just at that time in the past. Have you said it in this way..." - and then [the appellant's counsel] quoted something to Ms Brownlie that he was referring to that she had said previously - "He said to me, 'Go on. Go on. I bet you can’t do it, you pathetic little fuck. Go on. You don’t have the guts.'" And Miss Brownlie responded, "Yep.", saying yes she had said it in that way some time previously. And then, [the appellant's counsel] said, "That’s a longer version than what you just gave earlier today. Which is closer and more accurate, the one you gave earlier today or the one I just read?" And Miss Brownlie said, "I don’t know."

For completeness sake, I will just go back and read that other passage. And at page 125, line 4, [the prosecutor] asked Ms Brownlie, towards the end of her evidence in chief, when Ms Brownlie was telling you about what the [appellant] had told her when she visited him in prison a few days after the 31st of July, question, "What, if anything, did he say that his dad had said to him?" Answer, "Um, he had said to him something to the effect of, 'Go ahead and I bet you can’t do it, you pathetic little fuck.', or 'cunt' or something like that." To act on this evidence of Lindsay Brownlie, you must be satisfied that the [appellant] did, in fact, say to Lindsay Brownlie what she attributed to him about the incident and that what the [appellant] said to Lindsay Brownlie was, in fact, true.

Depending on your view of the evidence, you may also wish to consider whether the provocative conduct commenced with an assault committed by the deceased against the [appellant] in the [appellant's] bedroom. To be manslaughter, a killing must occur in the heat of passion caused by sudden provocation before there is time for the passion to cool. You could only consider an assault by the deceased on the [appellant] as part of the provocative conduct if it was so closely connected with the final confrontation between them in the garden so as to be part of it or, as [the appellant's counsel] described  it, in his address, "a fight in the bedroom which led in one transaction to the garden."

It is a matter for you to assess the various evidence that bears on the timing of what happened in the house after Graham Pollock and the two women departed and ended in the garden. You might need to consider whether you can find what time it was that Graham Pollock and the two women actually departed the house. As [the prosecutor] pointed out to you, it would be difficult to see how the passion didn’t cool if the [appellant] had dragged the deceased out of the bedroom. In response to that, [the appellant's counsel] suggested that you would find Zoe Spottiswood was mistaken about the [appellant] dragging the deceased out of the bedroom.

[The appellant's counsel] suggested that the use of the rock was an unplanned and unpremeditated action and a primal or basic reaction to sudden provocation. In considering whether the striking of the blows with the rock were caused by loss of self-control, [the prosecutor] asked you to consider that the deceased was found face down in the garden and that you would infer that he was down on the ground when he was hit with at least two forceful blows to the back of the head. Zoe Spottiswood described it as, "[the appellant] was there with a rock over the top of his head smashing it down."

You also have Mr Hart’s evidence about the numerous, what he described as "noises of exertions" over and over for approximately one minute, although he didn’t really know how long except that it wasn’t a long time.

It was speculation on [the prosecutor's] part when he suggested to you yesterday in his address that there were 15 or 20 kicks by the [appellant]. You will recall that Dr Ong was not specifically asked about whether any of the deceased’s injuries were as a result of kicking. Apart from the head injuries to the back of the head, which Dr Ong attributed to at least two blows from a blunt object, Dr Ong said that some of the injuries to the trunk and upper limbs, which he also described as general injuries, when that term was put to him in cross-examination, were quite non-specific so that they could occur in any circumstances including a fight.

You will need to consider the physical evidence about the garden and what state it was found in when the deceased was located.

You have seen and heard evidence about the broken knife. I suggest that there is no evidence from which you could infer how the broken knife came to be in the state it was and where it was. That’s a matter for you, of course.

You will need to consider the physical injuries of the [appellant] that were noted soon after the incident. You will need to consider the state the [appellant] was observed to be in by Miss Spottiswood and the police after the incident occurred. So, what I am saying to you is that you have got to do a lot of fact finding on the basis of the evidence that you accept in relation to this question of the gravity of the provocation to [the appellant].

In considering the level of seriousness of the provocation to [the appellant], you take him as he is, his habits, his relationship with the deceased, and his age are all part of that assessment.

You must appreciate that conduct which might be insulting or hurtful to one person might not be insulting or hurtful to another. It depends on the person’s age, sex, personal attributes, personal relationships or past history and this is particularly relevant here where there is evidence of a very troubled relationship between the [appellant] and the deceased. Depending upon what evidence you accept, you may find there’s evidence of deep resentment by the [appellant] against the deceased for the treatment which he believed he’d received from the deceased, particularly as a child, and you were reminded about that evidence yesterday, particularly by [the appellant's counsel] in his address.

In addition, you might consider these matters affected the [appellant] as to how receptive he was to the making of comments or conduct towards him - he had lost his job two weeks or so previously; he’d broken up with his girlfriend with whom he’d been in a relationship for about two and a-half years; he had moved back in with his father because there was no where else for him to go; he was very emotional or vulnerable in the three or so hours before the killing as he had arrived back at the home of the deceased to see Lindsay Brownlie, his girlfriend with whom he’d just broken up, and Megan Bray, another friend with whom he developed a relationship in the nature of her being his confidante and he saw them there with his brother, but also his father. You may also want to consider whether he was affected by some sort of self hatred as a result of the evidence you’ve heard given about what he said to Graham Pollock and Lindsay Brownlie, particularly, in the early hours of that morning.

The provocation must be such that it is capable of causing an ordinary person to lose self-control and to act in the way that the [appellant] did. But the provocation must also actually cause the [appellant] to lose self-control and to kill the deceased while deprived of self-control. Provocation that causes loss of self-control and killing while deprived of self-control is very different from a deliberate act of vengeance, hatred or revenge.

In considering whether the appellant] did lose control as the result of provocative behaviour, take into account his state of intoxication in this way: an intoxicated person - if an intoxicated person has, in fact, lost his or her self-control, it becomes a question of fact for you whether that loss of self-control was caused by the deceased’s words or conduct or solely by the inflammatory affects of drink or drugs. In that way intoxication may be taken into account when considering the first question that you must ask yourselves, but not when considering the second question. I remind you that the first question was did the deceased’s conduct cause the [appellant] to lose his self-control and it is when you are considering that question that you take into account whether it was intoxication that caused the loss of self-control or whether it was the deceased’s words or conduct.

If you are satisfied beyond reasonable doubt that the answer to that question is no, then the Crown has excluded provocation and provided you are satisfied beyond reasonable doubt as to all the elements of murder to which I’ve referred earlier, the appropriate verdict is guilty of murder.

Depending on what you find to be the provocative conduct, whether it was the words of the deceased as conveyed by the [appellant] to Lindsay Brownlie or those words capping an assault by the deceased that commenced in the [appellant's] bedroom and ended in the garden, you have to form your own view on the gravity of the provocation to this particular man. Would the deceased saying or taunting the [appellant] in the manner related by Lindsay Brownlie amount to provocative conduct of a high order or a low order? [The appellant's counsel] described the provocation as powerful, deep and grave provocation. [The prosecutor] suggested that you would find that if any provocation did occur it was not enough to cause the [appellant] to lose self-control. What [the prosecutor] was saying to you was that you would find the provocation of a low order. [The appellant's counsel] was saying that you would find it of a high order in relation to this man.

If the answer to the first question - and that’s the question did the deceased’s conduct cause the [appellant] to lose self-control - is yes, or you have a reasonable doubt that the answer to this question is no, then you must turn to the second question, and I remind you that that is could the conduct of the deceased have induced an ordinary person in the position of the [appellant] to have so far lost self-control as to have formed an intent to kill or inflict grievous bodily harm on the deceased? This is the second critical question when you are considering provocation, whether an ordinary person reacting to the level of provocation that you find was felt by the [appellant], if that’s what you find,  whether an ordinary person reacting to that level of provocation could suffer a similar loss of control, that is, use the rock to strike the back of the deceased’s head at least twice.

Now, an ordinary person is not assumed to be a saint. He is expected to have the ordinary human weaknesses and emotions common to all members of the community and to have the same self-control that ordinary citizens of his age would have. In this area of the law we recognise that there does occur a snapping point where an ordinary person may do something that he would not dream of doing under normal circumstances. It is for juries to say if provocative acts are of a sufficiently serious level to justify reducing a verdict of murder to manslaughter on this basis. An ordinary person is simply one who has the minimum powers of self-control expected of an ordinary citizen who, in this case because the [appellant] is a man, would be a man, who is sober, not affected by drugs and of the same age, 23, as the [appellant] was at the time of the killing.

When one thinks of the effect of provocation on an ordinary person in the position of the [appellant], that phrase means an ordinary person who has been provoked to the same degree of severity and for the same reason as the [appellant]. So that’s why you’ve gone through this, in effect, couple of stages. You look at the actual level of provocation as it was as you find it was felt by the [appellant], if you find he was provoked, and then you take that level and apply that to an ordinary person in the position of the [appellant], a man of the age of 23 years with minimum powers of self-control who is sober and not affected by drugs, and you work out whether an ordinary person  reacting to that level of provocation could suffer a similar loss of self-control to that which the [appellant] did. The second question that you ask yourselves requires you to take full account of the sting of the provocation actually experienced by [the appellant], but eliminates from your consideration of an extraordinary response, if that’s what you find it to be, by the [appellant] to the provocation actually experienced. Extraordinary aggressiveness or extraordinary want of self-control on the part of the [appellant] confers no protection against conviction for the offence of murder.

The prosecution must satisfy you beyond reasonable doubt that the [appellant] did not act under provocation before a verdict of murder is appropriate. It is not for the defence to prove that the [appellant] was provoked.

Now, although I’ve directed you in relation to two broad questions, when you actually analyse it, if the prosecution has satisfied you beyond reasonable doubt that the conduct the [appellant] relies on as provocation did not occur, or that it did not, in fact, cause the [appellant] to lose self-control, or the [appellant] was not acting in the heat of passion, or that an ordinary person in the circumstances would not have lost control, the prosecution will have succeeded in satisfying you that provocation is not available. If, however, you have a reasonable doubt about this issue, you have the duty to bring in the lesser verdict of manslaughter."  (my emphasis)

5. The emboldened passages of these directions set out above show that on many occasions the judge correctly explained to the jury what the prosecution had to prove beyond reasonable doubt in order to exclude provocation before the jury could convict the appellant of murder. Her Honour's directions on provocation were lengthy and complex. The italicised portions of those directions set out above concerned how the jury should treat the evidence of Lindsay Brownlie as to the appellant's statement to her that shortly before the fatal attack the deceased goaded him by saying something like, "Go ahead and I bet you can't do it, you pathetic little fuck." The judge told the jury that before acting on that evidence they "must be satisfied that [the appellant] did, in fact, say to Lindsay Brownlie what she attributed to him about the incident and that what [he] said to Lindsay Brownlie was, in fact, true."

6. I am puzzled by this aspect of her Honour's directions in the context of provocation. I think it likely that the jury were also confused by it. That direction is the standard one given to juries as to a witness's evidence about an admission or confession made by an accused person. It is in accordance with Burns v The Queen.^[1]  In the context of the issue of provocation, Ms Brownlie's evidence of her conversation with the appellant did not amount to an admission or confession by him.  Because the onus of proof lay on the prosecution to establish beyond reasonable doubt that the appellant was not acting under provocation when he killed his father, it was not necessary for the jury to be positively satisfied both that the appellant did say these things to Lindsay Brownlie and that they were true.  It was sufficient if the jury considered that he may have said those things to Ms Brownlie and they may have been true when determining whether the prosecution had proved beyond reasonable doubt that the appellant was not acting under provocation.  As Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ state in Stingel v The Queen:^[2]  "… a defence of provocation … falls to be resolved by reference to the version of events most favourable to the accused" and "… in a case where the evidence gives rise to a question of provocation, the onus lies on the Crown to disprove provocation beyond reasonable doubt."^[3]

7. Her Honour's further statement to the jury,^[4] suggesting that the jury had to find positive facts in considering provocation was also apt to lead the jury into error as to the onus of proof.  As Callinan J said about the somewhat analogous matter of directions to a jury on the defence of accident in Stevens v The Queen:^[5] "… it is not necessary for an accused in order to be acquitted, to establish any facts, matters or inferences from them".  The jury did not have to conclusively find any facts or draw any inferences before considering provocation.  In determining whether the prosecution had disproved provocation beyond reasonable doubt, the jury was required to consider the version or versions of the facts and inferences most favourable to the appellant that were reasonably open from the evidence.  Then the jury was required to consider whether the prosecution had satisfied them beyond reasonable doubt that:

1. the potentially provocative conduct of the deceased did not occur; or

2. an ordinary person in the circumstances could not have lost control and acted like the appellant acted with intent to cause death or grievous bodily harm; or

3. the appellant did not lose self-control; or

4. the loss of self-control was not caused by the provocative conduct; or

5. the loss of self-control was not sudden (for example, the killing was pre-meditated); or

6. the appellant did not kill while his self-control was lost; or

7. when the appellant killed there had been time for his loss of self-control to abate. 

If the jury were satisfied of any of those seven things beyond reasonable doubt, then they had to find the appellant guilty of murder.  Otherwise, they had to find the appellant not guilty of murder but guilty of manslaughter.

8. The central issue in this trial was the question of provocation and if that reduced the offence from murder to manslaughter. Whether the prosecution disproved provocation beyond reasonable doubt was a finely balanced question on which reasonable minds could have come to different conclusions. It was the critical question for the jury. Although her Honour correctly directed the jury as to the onus and standard of proof as to provocation on a number of occasions, I am not persuaded that the misdirections to which I have referred, in the circumstances of this case, did not reverse the onus of proof. I am not persuaded that no substantial miscarriage of justice has occurred (s 668E(1A) Criminal Code 1899 (Qld)). 

9. For those reasons, I would allow the appeal, set aside the verdict of guilty, and order a retrial.

10. FRYBERG J:  I have had the benefit of reading my colleagues’ reasons for judgment in draft.  I agree with the President that the summing up on provocation was flawed, for the reasons stated by her Honour.  For that reason, the appeal must be allowed and the convictions set aside.  I concur in her Honour's analysis of the elements of provocation under s 304 of the Criminal Code.^[6]

11. Lyons J has demonstrated why it was open to the jury to convict the appellant on the evidence led at the trial. There is to be a new trial. On the questions whether the jury's verdict was unreasonable and whether there has been a miscarriage of justice, it is undesirable that I express a view as to my satisfaction beyond reasonable doubt.^[7]  In the light of one argument advanced during the hearing of the appeal, I would observe only that a jury is not bound to find the evidence of a person who suffers from paranoid schizophrenia to be unreliable.  The reliability of such evidence is a matter for the jury to consider in the light of any evidence regarding the nature of the disease, its impact on the particular witness, the nature and operation of any medication regime under which the witness lived at the relevant time and any other relevant circumstances.

12. LYONS J:  On 9 November 2006, after a six day trial, Andrew Murray Pollock (“the appellant”) was found guilty by a jury of murdering his father Graham Pollock (“the deceased”) at his Morayfield property on Saturday 31 July 2004.  It was uncontested that the appellant had killed his father by hitting him on the head several times with a rock in the garden of that property at around 5.50 am to 6.00 am on that morning.  There was no dispute that the killing was done unlawfully.^[8]  The issues at trial were whether the appellant killed the deceased with the necessary intent and, if he did, whether he did so under provocation.

13. The appellant now contends in his Notice of Appeal that the conclusion by the jury that the Crown had successfully excluded provocation was unsafe in all of the circumstances as that this was unreasonable and cannot be supported by the evidence. Secondly, the appellant contends that the trial was unfair, so as to amount to a miscarriage of justice, because of the Crown prosecutor’s closing address and because of some aspects of the summing up.

Uncontested facts

14. The appellant had ended a two-and-a-half year relationship with his girlfriend Lindsay Brownlie (“Brownlie”) some days prior to the 31 July 2004 and he had returned to live with the deceased and his brother Graham Pollock (“Graham”) at the deceased’s home. On the afternoon of 30 July 2004 the appellant had a few beers with his brother and the deceased and then went to meet friends at Bribie Island.  During the evening he met Zoe Spottiswood (“Spottiswood”) for the first time and at around 2.30 am returned to the deceased’s house with her.  When they arrived home Brownlie was in the kitchen drinking with Graham, the deceased, and another of the appellant’s friends Megan Bray (“Bray”).  The group had been drinking for some time.  Initially the appellant and Spottiswood joined the group in the kitchen where a ‘joint’ was smoked by some of the group and the drinking continued. 

15. After about a half an hour Spottiswood and the appellant went to his bedroom and had sex. Spottiswood gave evidence that she then fell asleep. The appellant couldn’t sleep so he got up and went out again to the main area. It was clear that he was angry that Brownlie was there and said “…[y]ou don’t want me anymore. What are you doing here?”^[9]  He got even angrier later on when he realised that the deceased had gone off walking around the property with Bray.  Graham gave evidence that the appellant at that point “...just sort of lost the plot” and said he hated himself and the deceased.  Graham and the appellant had then had an emotional discussion which included discussing traumatic childhood events where their father had been abusive to them.  The appellant broke down and was crying and said that no one liked him and that he should just ‘go’ as no one wanted him in the house.  He also talked about suicide and said “…he was going to drive up the highway and just go into a truck.”^[10]  There was also evidence that the appellant told Graham that he had a desire to drop a rock over a bridge and onto his father as he drove home from work.

16. Brownlie gave evidence that when Bray decided to stay the night and sleep in the deceased’s room the appellant became angry that she was staying the night. As Brownlie was making up the bed for Bray to sleep in, the appellant entered the room and made remarks to them about the deceased having anally probed him as a child and how his aunt wouldn’t bring her kids near the deceased because of the kind of person he was. The appellant clearly did not like the idea of Bray staying in his father’s room and he considered they should not be together. Graham’s evidence was that he kept saying things like “…[w]hat’s that fucking slut doing up there with that dirty old cunt?”^[11]

17. Brownlie told the appellant to calm down and he subsequently fell asleep for a short time near the kitchen. When he woke up a little later he again argued with Brownlie about her presence at the house. Graham said he was saying things like “...[f]uck off. Get out. You don’t live here. This is my house where I live. You shouldn’t be here.”^[12]  When he went off towards the bedroom Brownlie followed him and saw him standing near the bathroom with a knife.  She told the appellant to go to bed and she returned to the kitchen.  Shortly after that the appellant told Brownlie that he was going to report her and Bray to their employer because they both used drugs. 

18. It was at this point that the appellant’s behaviour became such that Graham and Brownlie decided to leave and Brownlie went to get Bray from the deceased’s bedroom. The appellant told Brownlie not to tell the deceased why they were leaving. Brownlie however told both the deceased and Bray they were leaving because of the appellant’s behaviour. The deceased became angry and both Graham and Bray heard him say something to the effect of “…[i]’m going to kill him” “[t]hat fucking little cunt.”^[13]  Bray’s evidence was that at the time both she and the deceased were naked.^[14]

19. Graham, Brownlie, and Bray left the house whilst it was still dark and drove to Burpengary in Graham’s car. Although the time is not clear, Brownlie’s evidence was that she thought it was probably around 5 am or 5.15 am.^[15]  The group last saw the appellant in the carport as they drove off.  It was just getting light as they arrived at Burpengary which was about a 10 or 15 minute drive away.

20. Spottiswood’s evidence was that she was woken from her sleep by the sound of arguing and she saw a struggle between the appellant and the deceased on the floor of the bedroom she was sleeping in. The physical evidence also confirms the aspect of Spottiswood’s evidence that there was a fight in the front bedroom as there was evidence of blood. Beads had also been broken from a necklace worn by the appellant and were found lying on the floor. Physical evidence also confirmed that there was a fight in the garden area where the killing occurred.

21. The issues in this case involve the question as to what happened between the fight in the bedroom and the ultimate killing with the rock in the garden after the fight.

22. The neighbours, Sydney and Gwendolyn Hart, heard the noise of the fight and Mr Hart made a 000 telephone call at about 5.50 am on 31 July 2004 indicating that there was a lot of noise next door, the dog was barking, a person was calling out to them to call the police, and that “…he sounded in pain.”  A short time later the appellant also made a 000 call at around 6 am and said “…I just killed my dad.”^[16] Some time later Spottiswood called the 000 number.  It would therefore appear that the whole incident commenced with the fight in the appellant’s bedroom at the earliest at about 5.20 am and concluded in the front garden around 5.50 am or soon after. 

23. The police arrived at around 6.08 am and an officer found the appellant sobbing and crying in the shower. He was then arrested. The deceased was found lying face down near a garden and a rock wall.^[17]  A large and heavy rock (exhibit 1) covered in blood was found near the front of the deceased.^[18]  The Court examined the rock during the appeal hearing.  The evidence indicated that the deceased had died of head injuries and that at least two applications of force would have been needed to produce the injuries to the back of the skull.  The skull had been fractured into many pieces. 

24. When subsequently examined the appellant was “emotionally unstable” and was given an injection of valium. He also had a sore area opposite his left ear, a sore area on the dorsum of his left foot, and a laceration on the ring finger of his right hand. It would also appear that he had a swollen ankle, a swollen left hand, sore ribs, and a cut lip. It is clear that the injuries are consistent with a fight and the appellant subsequently speculated that because he had a sore foot he had probably kicked his father in the head given there were head injuries.

25. The appellant also told police in a Record of Interview, some three hours after his father’s death, that “…[h]e was just a fucking cunt to me my whole life. Oh, no. Fucking snapped me last night.”^[19]  Later in the same interview he said:^[20]

“Fucking miserable cunt.  He’s fucking constantly fucking at me, man, 23 fucking years.  And I fucking killed the cunt.  I don’t – I don’t remember what started it, or nothing, I just fucking snapped obviously.”

In the interview he also indicated that “…just the thought of my old man touching anyone makes me feel sick.”^[21]

26. It was clear that the appellant had been out drinking on the night in question and he also indicated he had taken drugs that evening which is supported by the presence of cannabis in his blood test. Whilst he had indicated that he had taken speed this was not detected by the subsequent toxicology testing. This testing indicated that on the evening of 31 July 2004, which was many hours after his arrest, the appellant had a ‘nil’ alcohol reading but cannabis was detected. The deceased had a blood alcohol reading which was equivalent to .25 which was indicative of a high level of alcohol consumption.

Other evidence

The evidence of Zoe Spottiswood

27. Spottiswood was diagnosed with paranoid schizophrenia in 2000 and was under an involuntary treatment order at the time of the killing. She had been an inmate of a mental health facility for eight months prior to the trial and therefore gave evidence as a special witness at the trial. Some of the evidence given by Spottiswood is not corroborated. The appellant submits that where Spottiswood’s evidence is not supported by other evidence it should not be accepted.

28. The evidence she gave in relation to being woken by the sound of arguing and a struggle is supported by other evidence, particularly evidence of blood stains on the wall and bedding in that bedroom. These facts are not contested.

29. The appellant however submits that two pieces of evidence from Spottiswood are unreliable. First, Spottiswood gave evidence that either before^[22] or after sexual relations^[23] the appellant said “…I wish I could kill my father.  He’s been doing the wrong thing by young females.”^[24]  During cross-examination Spottiswood conceded that in her statement to police the appellant had said “…[m]y father’s been with two young women.  I’d like to stop him.”^[25]

30. The second was that Spottiswood indicated in cross-examination that she had seen the appellant drag his unconscious father out of the bedroom and that there was “…[a] trail of blood outside the bedroom towards the front door?-- There was blood everywhere.”^[26]  The appellant submits that there was no forensic evidence to corroborate this assertion.  There was no physical evidence of a blood trail.  Further, the appellant’s counsel stated that “…the photographs and the layout generally make – apart from the absence of blood – make what [Spottiswood] said ‘unlikely to be true’.”^[27]  Counsel submitted that it would have been difficult to drag an unconscious person around the corner of the bedroom because the space was narrow and if the deceased was dragged then it would be expected that blood would be found on the floor and that the canisters on the floor would have been knocked in all directions.^[28]

31. Counsel also submitted that the appellant’s necklace was broken during a struggle in the bedroom as a few beads were on the floor in the bedroom. However, counsel submitted because the necklace itself fell off in the hallway, the deceased and the appellant had moved ‘rapidly’ from the bedroom to the front door. Counsel submitted that if the appellant had bent over to drag the deceased out the front door as Spottiswood suggested, then the necklace itself is likely to have fallen off in the bedroom where it was broken. Furthermore, it was submitted that the pathologist’s evidence regarding the appellant’s hand injuries, which were bleeding, and the fact that there was no blood dropped from the appellant’s hand during the transition from the bedroom to the front door is further evidence that they moved from the bedroom to the front doorway rapidly.

32. Spottiswood also indicated that she had got up and dressed and had gone looking for the appellant and the deceased. Her evidence was that she went out the front door and “…he was there and Andrew was there with a rock over the top of his head smashing it down.”^[29]  Spottiswood’s evidence becomes unclear however as her later evidence under cross-examination was that she didn’t see what happened after the appellant and the deceased left the bedroom and that she couldn’t really see what was going on outside until she got up, got dressed, and left the bedroom.  She also stated that after the appellant came back inside she didn’t really know where the deceased was.^[30]

Was the appellant attacked by the deceased in the appellant’s bedroom?

33. The appellant contends that whilst there is no direct evidence that the appellant was attacked in his bedroom by the deceased^[31] this inference can be drawn because there is evidence of a struggle in the bedroom from Spottiswood’s evidence which is then corroborated by the impact splatter marks on the sheet, the floor near the bed, and the wall of the bedroom.  Furthermore, there is no forensic evidence of any struggle in the other bedroom, that is the master bedroom, where the deceased had been with Bray.  The appellant’s counsel submits that the beads from the appellant’s necklace, which were found in the appellant’s bedroom, suggest that the necklace was broken during a struggle in that bedroom. 

34. The appellant argues that this evidence indicates that the deceased attacked the appellant in his bedroom and that the deceased was the aggressor. This, they contend, is consistent with the deceased’s state of mind when the group had left. Bray gave evidence that when she left the deceased had “…snapped…you can’t reason with that person. You can’t be logical.”^[32] 

The prison confession to Brownlie

35. Brownlie visited the appellant in prison on 4 August 2004 and her evidence was that at this visit the appellant had told her what had happened on the night. The appellant had told her that the deceased had got up after the group left and was angry and that they had argued in the kitchen. The appellant said he had then told the deceased he was leaving and had gone to his room to pack his bags. The deceased however had then come into the bedroom and they had fought. There was blood and the deceased went to the bathroom to wash it off. The appellant was knocking on the door and shouting at his father about his abuse when he was a child. Brownlie stated the appellant said the deceased had left the bathroom through the window but that the fight had then continued in the garden. He admitted to Brownlie that he had hit his father on the head with a rock but this had been when the deceased had goaded the appellant by saying words to the effect of “‘…[g]o ahead and I bet you can’t do it, you pathetic little fuck, or cunt’ or something like that.”^[33] 

Verdict unreasonable

36. The appellant submits that against this background the fact the jury was satisfied that the killing was unprovoked is unreasonable and cannot be supported by the evidence.

Provocation

37. The appellant’s counsel contends that the factors influencing the extent to which the appellant was provoked included the negative history between the appellant and the deceased going back to his childhood when the deceased had flogged the appellant and his brother Graham. Evidence had been given at trial that the appellant alleged he was sexually molested by the deceased when he was four years of age and the deceased had threatened to cut off his own and his brother’s penis.^[34]  The appellant also believed that the deceased had behaved inappropriately towards his aunt.^[35]

38. The appellant’s counsel further submits that the appellant’s unease towards the deceased’s alleged inappropriate sexual dealings in the past was exacerbated by the presence of his ex-girlfriend Brownlie and his close friend Bray at the deceased’s house that night and then further by the prospect of Bray and the deceased engaging in sexual relations.^[36]  Bray and the appellant had a close friendship.^[37]

39. Furthermore, it was submitted that earlier in the week the appellant and Brownlie had terminated their two-and-a-half year de-facto relationship. As a result the appellant moved out of the house they both shared and returned to the deceased’s house early that week. Brownlie described the appellant as being depressed on the Thursday evening and she attributed this to the break-up and to him losing his job two weeks prior.^[38]  On the afternoon of Friday 30 July 2004 the appellant made a phone call to Brownlie but she had been unreceptive and “…pretty short with him…”^[39]

40. The appellant had gone out drinking with friends on the Friday night and returned to the deceased’s house with a girl in the early hours of Saturday to find Brownlie and Bray drinking with Graham and the deceased. It was clear that the appellant was angry about Brownlie and Bray being there.^[40]

41. It was submitted that in the hours leading up to the struggle the appellant had had an emotional conversation with Graham which included the appellant expressing anger at the way the deceased had treated him and his siblings when they were children^[41] and threatening suicide.^[42]  Graham also berated the appellant for threatening an opportunity for employment by taking drugs earlier in the evening.  The deceased had also attempted to yell at the appellant but was prevented from doing so by Graham.^[43]

The appellant’s submission on provocation

42. The appellant therefore submits that, based on the evidence in the preceding paragraphs, the level of provocation for the jury to consider was that of an:^[44] 

“…angry, emotional, remorseful appellant being attacked by his father, the man who had sexually interfered with him when he was a child and who had, [that] very night, tried to have sex with a woman with whom the appellant had a very close non-sexual relationship.” 

43. It was further submitted that the attack was started by the deceased, who had been drinking rum since 1.30 pm the afternoon before,^[45] and who was also angry at the appellant for cutting short his interaction with Bray.  Further, there was evidence that the deceased spoke one final, “humiliating” insult to the appellant before his death.  The appellant submits that it would be extraordinary if such an attack on a person with such a fragile state of mind did not cause them to lose control.

44. It is clear that the question for the Court is whether it was open to the jury to be satisfied beyond reasonable doubt that the killing was unprovoked. Counsel for the appellant submitted that if the Court is in doubt then this is a doubt that the jury should also have held unless the jury’s advantage in seeing the witnesses was such as to resolve that doubt.^[46]

45. It is submitted by the appellant that the only witness where the jury’s advantage may be relevant is Spottiswood. However, the appellant contends that because some of Spottiswood’s evidence is unreliable, given her psychiatric history and contradictory forensic evidence, it makes no difference that the jury saw her give evidence at trial. It was submitted that Spottiswood’s uncorroborated evidence is analogous to the description in M v The Queen where it is stated that:^[47]

“…the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force…”

46. The appellant submits that once Spottiswood’s evidence that the unconscious deceased was dragged from the bedroom is discounted, the capacity of the evidence to satisfy the jury beyond reasonable doubt that the killing was unprovoked is reduced. Furthermore, the appellant contends that the confessional statement given to Brownlie by the appellant is supported by uncontested forensic evidence.

47. The appellant submits that the argument that the appellant lost his self-control due to the actions of the deceased is strong given the nature of the killing; the evidence of the fight including the injuries sustained by the appellant and the deceased; the neighbour’s evidence of the request to call the police; the appellant’s own call to the police, as well as the appellant’s emotional state after the event. The appellant submits that all of this evidence indicates a loss of self-control.

48. Furthermore, it was submitted that, in ascertaining whether an ordinary person would have lost control so as to form an intention to kill or cause grievous bodily harm, consideration needs to be given to the events on the night which had been traumatic for the appellant. In addition, the deceased had been threatening to kill the appellant prior to his death. The appellant submits that even the most sceptical jury could not have reasonably concluded that an ordinary person would not have lost control so as to form the necessary intent given the gravity of the provocation.

49. The appellant further submits that there was no basis in particular for the jury to be satisfied that there was any break in the chain of events which gave rise to the provocation so as to give the appellant time for his passion to cool. The appellant submits that the evidence of Spottiswood of the appellant dragging the unconscious deceased out of the bedroom is the only evidence of a break in the chain of events and that this evidence should be removed from consideration. The appellant submits that the events all occurred within a short space of time given that the group left as it was getting light and the first call to police was at 5.50 am. Furthermore, the appellant points to the resumption of the struggle in the garden and the humiliating words of the deceased.

Was the verdict unreasonable on the evidence in relation to provocation?

50. It is uncontroversial that the unlawful killing in this case, which would otherwise be murder, is reduced to manslaughter if the prosecution does not establish beyond reasonable doubt that when he caused the death of his father, he was not acting under provocation. As clearly set out by the High Court of Australia in Masciantonio:^[48]

“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.

It follows that the accused must form an intention to kill or to do grievous bodily harm (putting recklessness to one side) before any question of provocation arises.  Provocation only operates to reduce what would otherwise be murder to manslaughter.  Since the provocation must be such as could cause an ordinary person to lose self-control and act in a manner which would encompass the accused’s actions, it must be such as could cause an ordinary person to form an intention to inflict grievous bodily harm or even death.

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.”

51. The question for the court is:^[49]

“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty."

52. The Crown submits that, considered as a whole, there was evidence before the jury to negative provocation. The Crown submits that the essence of the appellant’s argument is that the sudden provocation was the fight between the appellant and the deceased after the deceased said he would kill the appellant.

53. In fact, there is evidence of two potential acts of provocation. The first incident is evidence that the deceased started the fight after saying he was going to kill the appellant and the second comprises evidence of the words used by the deceased when he goaded and humiliated the appellant, taunting him to use the rock and calling him a “pathetic little fuck”. The jury could have viewed both acts as capable of one continuing episode of provocation or, alternatively, they could have considered that there was only one act namely the second event which was capable of constituting the provocation given the separation in time between the two events.

54. It was up to the jury to consider what may have constituted the act or acts of provocation and whether the Crown had excluded the possibility of a provoked attack so as to reduce the charge of murder to manslaughter on this basis.

55. The essence of the defence of provocation is that the person kills another under circumstances which would constitute murder but does so in the heat of passion caused by sudden provocation and before there is time for his passion to cool. It is a sudden and temporary loss of self-control. Before a jury can return a verdict of murder the Crown must satisfy the jury beyond a reasonable doubt that the appellant did not act under provocation. As McMurdo P stated in R v Rae:^[50]

“The prosecution will satisfy this onus by establishing beyond reasonable doubt any 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.”

56. The first question for the jury is whether the deceased’s conduct, that is the things he said and did, was such as to actually cause the appellant to lose self-control. In this regard the jury is to consider the gravity of the conduct to the appellant considered against the history of disputation between the deceased and the appellant.

57. It was uncontested that the appellant was angry in the early hours of the morning in question and that he had a difficult relationship with his father which had been exacerbated by the presence of both Brownlie and Bray at the house when he returned. He had then been repeatedly angry with Brownlie and offensive to her to the extent that she couldn’t cope with it any longer and wanted to leave. Indeed the group of three left because the appellant was being so difficult with Brownlie and because of his anger about the deceased being with Bray.

58. The appellant had previously also exhibited anger about his father to Spottiswood at about 3 am at the time they had sex. He had also been angry and emotional about his father when talking with Graham in the early hours of the morning.

59. Clearly, on the evidence, the appellant was particularly angry with his father on the evening in question and had a history of being generally resentful and angry about his childhood and the way the deceased had treated him. Against this background of the personal characteristics of the appellant there is evidence that at around 5.15 am, as the group were leaving, the deceased was angry with the appellant and he actually said words to effect that he was going to kill “…the little fucking cunt.”  There was also evidence before the jury however that in this family such a phrase was common parlance and was in fact the way the family spoke to each other.

60. As the High Court stated in Masciantonio v The Queen^[51]  the test involving the ordinary person is an objective test which lays down the standard of self-control required, however, the gravity of the conduct said to constitute the provocation is to be assessed with reference to the actual accused.  It is accepted that the personal relationship between the appellant and the deceased was such that the deceased’s actions, which may not have been hurtful or insulting to another person, would in fact have been regarded by the appellant as extremely hurtful and insulting. There was therefore evidence before the jury that in those early hours of the morning the appellant was facing an aggressive father who was angry with him for making Bray leave and who the appellant considered had been “…just a fucking cunt to me my whole life.”^[52] 

61. The evidence supports an inference that it was the deceased who had come aggressively down the corridor and was the instigator of verbal abuse at the very least, which resulted in a fight which commenced in the appellant’s bedroom. Even given all this behaviour I consider that it was still open to the jury on the evidence to be satisfied beyond a reasonable doubt that nothing the deceased did on the night was sufficient to cause the appellant to lose his self-control and act in the way he did.

62. The test in this regard was whether the jury were persuaded beyond a reasonable doubt that the relevant words and conduct of the deceased were not of such a nature that they could or might cause an ordinary person of the appellant’s age, that is to say, a hypothetical or imaginary person of that age with powers of self-control within the range or limits of what is ordinary for a person of that age, to do what the accused did. Whilst the jury had to take into account the gravity of the deceased’s conduct in the context of the relevant attributes and relationships past and present of the accused, there was evidence for the jury to conclude that nothing the deceased actually did on the night was sufficient to constitute sudden provocation.

63. There clearly was a fight between the two men because Spottiswood’s evidence was that she observed it. This evidence is then supported by evidence of blood on the sheet in that bedroom, blood on the wall, and the fact that beads from the appellant’s necklace were found on the floor near the bed. The physical injuries also indicate that the appellant had a swollen hand, a swollen ankle, sore ribs, and a cut mouth. All of this evidence supports a conclusion that there was a fight. However, there was evidence for the jury to be satisfied that the fight did not occur because of what the deceased said or did on the night but because of other factors. There was evidence before the jury that the appellant had evidenced a bad attitude to the deceased on that night before the deceased did or said anything directly to the appellant. The appellant had told Spottiswood that he wanted to “kill” or at least “stop” his father and Brownlie had given evidence that she had seen the appellant with a knife. There was evidence for the jury to be satisfied that whatever caused the fight was not caused by “sudden provocation” given the fact the appellant had been on a ‘slow boil’ all night and had been angry and aggressive to Brownlie quite independently of what his father had done. I consider that there was evidence for the jury to conclude that the attack was planned or based on motives such as revenge or punishment inconsistent with a sudden loss of self- control and, therefore, provocation.

64. Furthermore, it was clearly open on the evidence for the jury to be satisfied beyond a reasonable doubt that what the deceased said or did on the night was not such as to provoke the appellant to lose control in the way that he did. As Barwick CJ indicated in Johnson v The Queen,^[53] in answering the question whether an ordinary person could have reacted in the way the appellant did, the important issue is not the precise form of the physical reaction but rather it is the formation of an intention to kill or do grievous bodily harm which is the critical question.

65. Before exploring the issue of whether an ordinary person could react in the way the appellant did, an issue which needs to be examined is whether the jury could be satisfied as to the question of whether the appellant had not actually acted in the heat of passion before there was time for the passion to cool. It was for the Crown to negative the possibility that the appellant killed the deceased in the heat of passion whilst actually deprived of self-control.

66. One argument is that the fight in the bedroom and the hitting with the rock in the garden was one whole episode and was one continuous act which took place over a short period of time. Even if it is accepted that the deceased was the primary attacker and came storming down the corridor to the appellant’s bedroom after the group had left, the earliest the killing could have occurred was around 5.50 am at the time the phone call was being made by the neighbours. It is clear that there is no reliable evidence which indicates how long the fight went on. There is some evidence that the group left at around 5.15 am or 5.20 am but this evidence is imprecise. This leaves a period of time of, at the most, a half an hour and, at the least, possibly 15 minutes as the period of time over which the whole episode occurred. It may have been a much shorter period of only five minutes, as submitted by counsel for the appellant. However given that the episode started in the bedroom, possibly went to the bathroom, but definitely ended in the garden, it was clearly an ongoing fight over at least the period of time it would take to transit to these places.

67. I consider that it was open to the jury to be satisfied beyond a reasonable doubt that, given the extended period of fighting and the distances travelled, the whole episode, even if it be accepted that it was one uninterrupted episode, did not occur “…in the heat of passion before there was time for the passion to cool.” This was not a quick ‘one off’ punch delivered instinctively but rather a continuous fight which had resulted in the appellant sustaining injuries to his mouth, ribs, face, and feet over an extended period. There was also evidence from the neighbour, Mr Hart, that he had heard something in the order of 15 noises of “exertions” in the yard which also confirms an extended period of fighting in the yard alone.

68. Although it is unclear how the parties got out to the yard to continue the fight, there is some evidence that the deceased and the appellant exited from the house through the front door. There is also evidence consistent with the deceased having climbed out through the bathroom window. On either version the fight started in one place, namely the bedroom, and ended in the front garden. This evidence also supports a long and sustained fight.

69. Furthermore, on the appellant’s version of events, which he told Brownlie at the prison visit, there had in fact been an actual break in the whole episode. The appellant had stated that the deceased had gone into the bathroom to wash off the blood and the appellant was outside the door bashing on it and yelling out at his father about his terrible childhood. There was also evidence that the deceased’s blood had been found in the bathroom. On this evidence it was perfectly open to the jury to be satisfied that, even accepting there had been aggressive conduct on the part of the father that had initiated the whole event, an ordinary person could not respond in the way the appellant did. The length of the fighting episode and the fact the deceased had escaped to the bathroom, whereby the parties were physically separated, was evidence that there was time for the passion to cool. At that point they were apart and they were at least ‘catching their breath’. I consider that there was evidence upon which a jury could be satisfied that provocation had been negatived because they were satisfied the killing had occurred after there was time for the passion to cool.

70. The appellant relies on the decision in Masciantonio to submit that the nature of the behaviour in striking the blows with the rock and the irrational behaviour indicate that the passion had not cooled.  As I have indicated this was a question for the jury and there was sufficient evidence for them to form a contrary view.  In Stingel v The Queen^[54] the High Court approved the observation in Holmes v Director of Public Prosecutions^[55] by Viscount Simon that the wrongful act or insult must be capable of provoking an ordinary person not merely to retaliate but to the “…degree and method and continuance of violence which produces the death.”

71. Even if the jury considered that the only act of provocation was the final insulting taunt by the father, it was not unreasonable for the jury to be satisfied beyond a reasonable doubt that this insult could not cause an ordinary person to react in the way the appellant did which was to form an intention to kill or cause grievous bodily harm to his father and to strike him at least twice with a large and heavy rock. The Crown would have therefore negatived provocation if the jury found that an ordinary person in the appellant’s position could not have lost control to the extent as to have formed an intention to kill or an intention to do grievous bodily harm and act on it.

72. I also consider that it was reasonable for the jury to conclude that the actions of the appellant were not the actions of an ordinary person in the situation he found himself in. Whether this was a reaction from one entire episode commencing with the fight and concluding with the deceased being goaded into striking the deceased by the final humiliating taunts or whether it was just the latter episode. It was perfectly open to the jury to conclude that the reaction of an ordinary person to what occurred on the night could not be to engage in a “...savage and bloody fight”^[56] which resulted in the appellant forming an intention to kill or cause his father grievous bodily harm by striking him with a large and heavy rock at least twice.

73. The appropriate test has been expressed in the following terms:^[57]

“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 argument counsel for the appellant indicated that it would, in essence, be sufficient to establish the first ground of appeal if they “…demonstrate the existence of an hypothesis consistent with provocation.”^[58]  In this regard counsel relied on the decision of Peacock v The King^[59]which held that when there is a circumstantial case 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.”

74. I consider that having looked at the evidence as a whole there was evidence upon which a jury could be satisfied beyond reasonable doubt that the evidence is inconsistent with any rational conclusion other than the guilt of the accused and that the evidence on the whole does, beyond reasonable doubt, negative provocation as a reasonable explanation. The appellant’s argument in this regard therefore cannot succeed.

Unfair trial

The prosecutor’s address

75. The appellant’s second argument is that the trial was unfair and therefore involved a miscarriage of justice. In making this submission the appellant relies on statements made by the Crown prosecutor in his closing address and on some passages in the summing up by the learned trial judge.

76. In relation to the conduct of the case by the prosecution the appellant submits that in accordance with longstanding authority prosecutors are “…to regard themselves as ministers of justice, and not to struggle for a conviction.”^[60]  The appellant contends that the prosecutor commenced his closing address by breaching four of the essential principles set out by the New South Wales Court of Criminal Appeal in Livermore v The Queen.^[61]  In particular the appellant contends that the address to the jury was based on material not in evidence, the comments tended to arouse prejudice or emotion in the jury, the comments belittled part of the accused’s case, and the address also conveyed the prosecutors personal opinions and indeed some moral condemnation. 

77. The appellant also contends that the Crown prosecutor impugned Bronwlie, its own witness, when the prosecutor allegedly ridiculed the witness by implying that she was somehow apologising for the appellant or excusing his behaviour when he said that:^[62]

“Everyone has always made excuses for him.  Everyone has tried to help him.  We have even had it in this trial.  Lindsay Brownlie, a very kind-hearted person, but kept saying ‘Oh, Andrew was going through a hard time but, you know, I was doing those things at that time.  I didn’t notice.’”

78. The appellant contends that the witness is therefore ridiculed as a dupe with the consequence that anything favourable coming from her would be disregarded by the jury. The appellant also contends that Graham’s evidence is ridiculed and that, combined with the first part of the address already referred to, this was directed at the jury dismissing the issue of provocation from consideration.

79. There is no doubt that the address, which opened with a reference to the 1970’s and the ‘me’ generation, contained some personal views of the prosecutor, however, I do not consider that there was anything in his remarks which would amount to a miscarriage of justice. I agree with the submission of counsel for the respondent that given that the remarks were made on the afternoon of 7 November and that the trial judge summed up on the following day with the jury retiring at about 11.30 am that day the prospect that the jury were inflamed by his remarks is remote. I also consider that the address of defence counsel was such that he made it very clear that the comments “…about social theory from the 1970’s were completely extraneous.” Very experienced senior counsel for the appellant at trial did not seek to have the jury discharged in light of these comments. Furthermore, I do not consider that the language of the prosecutor was such that the jury dismissed the question of provocation from their minds.

80. It is correct that the learned Crown prosecutor contained in his address speculation that the appellant got a sore foot by kicking his father in the head 15 to 20 times and that the allegation is repeated. It is clear that the statement by the appellant to the police in his Record of Interview about what could have happened is not an admission but rather an attempt at reconstruction when he was speculating on what had occurred. Defence counsel subsequently corrected what the prosecutor had said and indicated that there was no evidence of the kicks and in any event it was stated that even if there were kicks this would not undermine the defence of provocation. The learned trial judge in her summing up made it quite clear to the jury that these comments were nothing more than speculation on the part of the prosecutor. I consider therefore that these comments by the prosecutor were such that they were fully overcome by the directions given by the trial judge in this regard.

81. It is also correct that the prosecutor mis-stated the evidence of Brownlie in relation to whether the appellant had indicated he had gone to the bedroom to pack to return to her. This may well be the case but I cannot see how this could have had any relevant impact on the jury in relation to the key issues they were considering. I agree with the respondent’s submission that this evidence simply went to the question of the appellant’s destination.

The summing up

82. The other complaints of an unfair trial relate to the learned judge’s summing up. In particular the appellant submits that whilst the learned trial judge made it clear that the elements of the defence of provocation had to be negatived by the Crown there was an indication in the summing up that the jury needed to make a certain finding that a statement by the appellant to Brownlie was “true” and is as follows:^[63]

“To act on this evidence of Lindsay Brownlie, you must be satisfied that the defendant did, in fact, say to Lindsay Brownlie what she attributed to him about the incident and that what the defendant said to Lindsay Brownlie was, in fact, true.”

83. It is clear that the defence of provocation falls to be resolved by reference to the version of events most favourable to the accused. In this regard therefore there was no requirement that the jury had to be satisfied that the appellant had in fact said the words that were attributed to him to Brownlie or that the words were in fact true. This could indeed have caused some confusion in the minds of the jury.

84. A further criticism is that the learned trial judge said the following:^[64]

“So, what I am saying to you is that you have got to do a lot of fact finding on the basis of the evidence that you accept in relation to this question of the gravity of the provocation to Andrew Pollock.”

85. The learned trial judge also said:^[65]

“It is a matter for you as to what facts you are able to find or infer about the movements and the interaction of the defendant and the deceased after Graham Pollock, Lindsay Brownlie and Megan Bray departed the house.”

86. In Stevens v The Queen,^[66] a decision involving the defence of accident and what the instructions to the jury should contain, Callinan J said the jury should be told in the following terms:

“Remember too, that although you cannot engage in groundless speculation, it is not necessary for an accused in order to be acquitted, to establish any facts, matters or inferences from them. You must acquit him if you think that, on the evidence as a whole, accident in the sense I have explained is a reasonable explanation for the death of Mr Brockhurst.  As I told you earlier, you must be satisfied beyond reasonable doubt that the evidence is inconsistent with any rational conclusion other than the guilt of the accused.  And you could not be satisfied beyond reasonable doubt of his guilt if you think that the evidence on the whole does not negate beyond reasonable doubt accident as a reasonable explanation for Mr Brockhurst’s death.”

87. Counsel for the appellant submits that the passages in the summing up had a tendency to create a false impression in the jury’s mind in relation to the Crown’s duty to exclude the defence of provocation beyond a reasonable doubt. Having considered the summing up as a whole and despite the strong exhortations given to the jury in relation to the onus of proof in relation to the question of provocation I consider that these passages may have been such as to cause confusion in the mind of the jurors. Whilst the passages in the summing up, which come later than those set out above, make it very clear what the Crown’s duty was, they may not have been such as to overcome the directions in relation to fact finding. The jury did not have to find certain facts. The question was whether they were satisfied beyond reasonable doubt that the evidence as a whole was inconsistent with any rational conclusion other than the guilt of the appellant.

88. In the circumstances, given the concerns I have in relation to the directions outlined above, I am not satisfied that no substantial miscarriage of justice has occurred.

89. A complaint also arises in relation to the passage in the summing up which related to the requirement that for the defence of provocation the killing had to occur in the heat of passion before there was time for the passion to cool. It is submitted that the formulation by the judge imposed a lack of flexibility that was not required by either the statute or the common law. It was stated in the following terms:^[67]

“You could only consider an assault by the deceased on the defendant as part of the provocative conduct if it was so closely connected with the final confrontation between them in the garden so as to be part of it or, as Mr Devereaux described it, in his address ‘a fight in the bedroom which led in one transaction to the garden.’”

90. The appellant submits that this formulation did not stress that in dealing with the issue of sufficient time for the passion to cool the question was “…not a question to be answered by reference to the ordinary person. It is to be answered by reference to the conduct of the accused himself and the common experience of human affairs.”^[68]  When considered as a whole it is clear that the summing up did appropriately address this issue.

91. There is also a complaint that the learned trial judge, by referring the jury to the physical injuries sustained by the deceased, placed undue emphasis on the physical means of killing which is not in accordance with the approach of the High Court in Masciantonio where it was held that it was the nature and extent, that is the kind and degree, of the reaction rather than the duration of the reaction or the precise physical form which that reaction might take, which was the relevant consideration.  In this regard the judge asked the jury to consider “…whether an ordinary person reacting to that level of provocation could suffer a similar loss of control, that is, use the rock to strike the back of the deceased’s head at least twice.”^[69]  I agree with the submission of the respondent in this regard that what the trial judge was doing was simply relating the law to the facts of the case and I do not consider that this unduly restricted the jury’s assessment of the appellant’s reaction.

92. However given the concerns I have outlined previously I would allow the appeal, set aside the verdict of guilty, and order a retrial.