SUPREME COURT OF QUEENSLAND

[1]  McMURDO P:  I agree with Chesterman JA that the appeal should be dismissed and generally with his Honour’s reasons.

[2]  Green v The Queen[1] requires a jury to take into account an accused person’s special sensitivity, established by evidence, to matters relevant to what is said to constitute provocation.  Despite the valiant attempt of Mr Kimmins and Ms Chekirova on behalf of the applicant, which this Court gratefully acknowledges was undertaken on a pro bono basis, there was no evidence at trial to warrant a direction of the type discussed in Green.

[3] The jury in this case sought redirections as to the meaning of the terms “heat of passion” and “sudden provocation” in s 304 Criminal Code.  The wording of s 304 is effectively in the same terms as when the Criminal Code 1899 (Qld) was enacted.  The expression “heat of passion” has a melodramatic 19th century tone which is unfamiliar to 21st century jurors.  The judge’s summing-up in this case was adequate.  The jury may, however, have been assisted by the discussion in R v Pollock[2], decided after the appellant’s trial, as to what they must be satisfied of before determining that the prosecution has disproved provocation under s 304 beyond reasonable doubt.

[4] Mr Kimmins has not demonstrated any “wrong decision of any question of law, or that on any ground whatsoever there was a miscarriage of justice” under s 668E(1) Criminal Code 1899 (Qld).

[5] I agree with the order proposed by Chesterman JA.

[6]  FRASER JA: I agree with the order proposed by Chesterman JA and with his Honour’s reasons for the order.

[7]  CHESTERMAN JA: The appellant was indicted on a charge of murdering Francesca Fisher at Cherbourg on 23 October 2004.  He admitted killing Ms Fisher unlawfully but the Crown refused to accept a guilty plea to manslaughter and, after a three day trial, the appellant was convicted of murder on 13 December 2007.

[8] The accused and the deceased lived together in a flat in Cherbourg.  On the evening of 22 October 2004 they had entertained some friends and family members.  A deal of alcohol was consumed.  Later in the evening some of the neighbours heard the sounds of disturbance and dispute: voices raised, furniture dislodged.  The next morning, 23 October, a neighbour who had been at the party called on the deceased.  She saw the appellant.  His shirt was bloodstained.  He told her to call the police.  The neighbour went home and dialled 000.  She returned to the appellant’s flat where she saw the appellant sitting on a chair beside the deceased’s body.  There was blood ‘everywhere’.  The neighbour fled and hailed a passing police car.

[9] The police officer who first entered the flat examined the deceased and found her dead.  The appellant was still on the chair beside the body.  He seemed overcome by grief and/or remorse.  The officer found a knife in a plastic bag hanging from the doorknob of the kitchen door.  Another police officer asked the appellant if the blood on his shirt was his.  He replied “She stabbed me first” and lifted his shirt to display a wound to his chest.

[10]  The post-mortem examination revealed that the deceased had been stabbed 18 times.  All wounds were consistent with infliction by a knife.  The fatal wound was on the upper right back of the deceased.  It was 5.5 centimetres long and 1 centimetre wide.  It penetrated to a depth of 11 centimetres.  The knife had entered the chest cavity between two ribs and severed the pulmonary artery.  Its blade was 14 centimetres long.  Moderate force would have been required to inflict the wound.

[11]  When the appellant was examined he was found to have suffered a wound to his chest 2 centimetres deep, 4 centimetres long and 1.5 centimetres wide.  The wound was apparently inflicted by a knife.  It extended through skin and fat to muscle but did not penetrate the chest cavity.  As well, the appellant had numerous marks or “nicks” across the top of his abdomen and chest.  Many of them were covered in congealed blood.  They appeared to have been caused by the knife tip.

[12]  The appellant told the examining doctor that the larger wound had been caused “by another person” while the numerous small cuts were self-inflicted.  By “another person” he meant the deceased.

[13] The only account of the homicide was given by the appellant when interviewed by the police.  The account was barely coherent.  He said this:

“... What were you stabbed with? – What?

... Tell me what happened ...? – That?

... How did you get the wound?  Did you fall on something? – Yeah ... oh, I fell on a knife.

You fell on a knife? – Yeah.

Where was the knife? – It was lying ... on the floor.

... What do you know about that incident? -  I went home, she came along and had a stubby on me. ...  And she was saying things to me that I didn’t like her to say to me:  I’d like her to stop.  ...  I said ‘Please stop mate’.  She kept going and ... she grabbed a knife and I tried to grab it off her.  ...  Couldn’t persuade her or anything.  I grabbed it off her and I was so stirred up.

What happened then? -  I said to her ... ‘Why do you treat me like this?’  I said ‘I do everything for you.  Why do you got to put me down?’  Putting me down all the time.  I said ‘I do everything for you;  wash your clothes, clean this house up, wash the clothes, hang them out, bring them in.  Everything.’  ...  She started laughing ...  Yeah I don’t know why and I just stabbed her ... .  She wouldn’t understand what I was trying to say to her.  I said ‘Look, why are you treating me like this, and do you ever think where you ... you are putting me down like I’m a little ... or like a little kid or something ...’.

What did you stab her with? -  Knife.

Whereabouts did you stab her?  -  Stabbed her in the chest.

How many times did you stab her? -  Just don’t recall.

Do you recall how hard it was that you stabbed her? -  No I don’t recall.

Well why did you stab her? -  Because she was putting me down like I was a kid or something.  I didn’t like it and I did everything – I tried to tell her I did everything for her;  wait for her, give her all my money, wash clothes and everything, clean the house, sort the flat out.  She was laughing at me.”

[14]  The only question for the jury was whether the homicide was murder or manslaughter.  To answer that question the jury had to determine whether, when he stabbed Ms Fisher, the appellant intended to kill her or cause her grievous bodily harm.  If satisfied beyond reasonable doubt that he stabbed with either intention so that the killing was murder pursuant to s 302(1)(a) of the Code the jury had to consider whether the killing was provoked in the sense described by s 304 of the Code so as to reduce the homicide to manslaughter.

[15] The amended notice of appeal sets out four grounds:

“(1)The ... trial judge erred in not providing adequate direction on the law of provocation regarding the meaning of terms ‘heat of passion’ and ‘sudden provocation’.

(2)The ... trial judge erred in misdirecting the jury on the issue of provocation regarding the concept of ‘ordinary person’ in that it should have been considered by reference to the concept of ‘ordinary Aboriginal person’.

(3)The ... trial judge failed to clearly and adequately sum up all of the relevant evidential and legal features of the case.

(4)There has been a miscarriage of justice in that the verdict ... which implicitly found that the prosecution had disproved provocation beyond reasonable doubt is against the weight of the evidence.”

[16]  Grounds 1 and 2 are complaints about the adequacy of the summing up on provocation.  Ground 3, though very generally expressed, was identified during the hearing as a complaint about the adequacy of the summing up as to intention.  Ground 4 is a complaint that the verdict was unreasonable.

[17]  Ground 3 can be dealt with briefly.  The number of stab wounds inflicted on the deceased, the size and type of the weapon and the depth of the fatal wound all strongly indicate that the appellant intended, at the very least, to inflict grievous bodily harm upon the deceased.  The only countervailing factor was the extent to which the appellant might have been intoxicated at the time of the attack so that drunkenness might provide a basis for doubting the inference arising from the number and severity of the wounds.

[18]  The trial judge gave a long, careful and detailed explanation to the jury about the need to be satisfied beyond reasonable doubt that the appellant intended to kill or cause grievous bodily harm and explained the relevance of intoxication to an examination of the evidence.  Her Honour also rehearsed in some detail the evidence of the appellant’s drinking in the hours preceding the homicide.

[19]  There is no legitimate basis for criticising this aspect of the summing up.

[20]  The focus of the appellant’s submissions was the directions given by the trial judge on the question of provocation.

[21] Section 304 of the Code provides:

“When 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.”

[22] The trial judge gave typed copies of the section to the jury, and made some introductory remarks concerning provocation which were quite unexceptionable and would have served to direct the jury’s mind to the nature of their deliberations concerning the section.  The trial judge then said:

“Provocation is only a partial defence and it applies to reduce what would otherwise have been a verdict of murder to one of manslaughter.  So, 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.  So, provocation consists of conduct which firstly causes a loss of self-control on the part of the (appellant), and secondly which could be capable of causing an ordinary person to lose self-control and act in the way the (appellant) did.

So for provocation the (appellant) must actually have been deprived of self-control and have killed the other person whilst so deprived.  Now, the defence relies on this provision ... to invite you to acquit (the appellant) of murder and instead to convict him of the lesser offence of manslaughter.  If you have been already satisfied about the issue of intent ... consider the following question or questions: … may Ms Fisher’s conduct, that is the things she said, did or both, have induced, that is caused, (the appellant) to lose his self-control?  There must be a causal connection between the conduct of Ms Fisher and the loss of self-control by Mr Miller.

In determining whether there was such a connection you must consider the gravity of the alleged provocation so far as the (appellant) is concerned.  Do you think the gravity was of a high or low order?  And in considering the level of seriousness of provocation ... you must take (the appellant) as he is.”

[23]  The trial judge then referred to the evidence relevant to provocation and reminded the jury of the appellant’s account that the deceased had first assaulted him with the knife and that he had become “stirred up” because of the levity with which she treated his fastidious housekeeping and domestic assistance.  The jury was directed to consider whether this evidence might lead them to conclude that the appellant ‘suddenly lost his self-control and inflicted multiple stab wounds ... intending to cause ... some life-threatening injury’.

[24] Her Honour continued:

“So, if you took this view ... the essential question becomes has the prosecution established beyond reasonable doubt that what Ms Fisher said and did was not such as to amount to provocation in law?  You have to weigh up ... the gravity of the provocation to the particular defendant.  In considering the level of seriousness of the provocation ... you must take the (appellant) as he is.  His race, his colour, his habits, his relationship with the deceased and his age are all part of this assessment.  You must appreciate that conduct which might not be insulting or hurtful to one person may be extremely hurtful to another because of that person’s age, sex, race, ethnic or cultural background, physical features, personal attributes, personal relationships or past history.  It is proper that you view the words or conduct in question as a whole and also in light of any history of disputation between the deceased and the (appellant) since particular acts or words which considered separately could not amount to provocation may in combination or cumulatively be enough to cause the (appellant) to lose ... self-control ... .

... the provocation must be such that it is capable of causing an ordinary person to lose control and to act in the way the (appellant) did.  The provocation must also actually cause the defendant to lose self-control and to kill the deceased while deprived of self-control.  Now, this loss of self-control is different from a deliberate act of vengeance, hatred or revenge.”

[25] There was then a direction about the relevance of the appellant’s intoxication to their consideration of provocation.  No complaint is made of this part of the summing up and it is not necessary to repeat it.  Her Honour reminded the jury that:

“... the first question which you must ask yourself ... is whether Ms Fisher’s conduct caused (the appellant) to lose control ... .”

[26] After a comment about the onus of proof which is not criticised the summing up continued:

“If the answer to the first question ... is yes ... you must turn to the second question.  ... the second question is may 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?  ...  the final and critical question, whether an ordinary person reacting to this level of provocation could suffer a similar loss of control;  that is to say stab his partner.  The 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 self-control at the same level as ordinary citizens of his age.

In this area of the law we recognise that there does occur a snapping point when 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 ... .

An ordinary person is simply one who has the minimal powers of self-control expected of an ordinary person who is sober, not affected by drugs and of the same age and sex as the (appellant).  When one thinks of the effects 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 reasons as the (appellant).

The second question ... requires you to take full account of the sting of provocation actually experienced by the (appellant) but eliminate from your consideration an extraordinary response by the (appellant) ... to the provocation actually experienced.  Thus extraordinary aggressiveness or extraordinary want of self-control on the part of the (appellant) confers no protection against conviction for murder.”

[27] The trial judge then addressed the question of onus of proof again in more detail and in terms which are not criticised and summarised the respective arguments.  The summing up concluded at 3.30pm on the third day of the trial.  At 8.43pm the jury delivered a note which asked the trial judge to “explain or clarify the terms ‘heat of passion’ and ‘sudden provocation’”.  By way of response her Honour said:

“... those two phrases are not legal phrases, they’re phrases that you would be aware of from your normal life experience.  So, there’s no legal definition as such in relation to those phrases.  So, heat of passion, call on your own experience.  Sudden provocation, similarly.

The two things I can say to you are these:  a person must react quickly to the provocation and a person is not entitled to brood over a grievance for some time before retaliating. 

So, essentially, there must be a causal connection between the conduct of Miss (sic) Fisher and the loss of self-control by (the appellant).  So, I suppose you could talk about some proximity or some connection between those two.  So, a causal connection and there’s no time for a person to brood or mull it over.  A person must react quickly to the provocation.”

[28]  At 5.30pm the following day the jury delivered another note, intimating that they were deadlocked.  The trial judge then gave an abbreviated “Black” direction and asked whether there was any likelihood that, if given more time, they might reach a verdict.  One of the jurors asked for an explanation of “provocation in greater detail” and indicated that the topic of “the ordinary person” was causing some difficulty. 

[29] Her Honour then gave a full direction in accordance with Black v The Queen (1993) 179 CLR 44 and then gave another detailed summing up on provocation which repeated, in substance, the whole of what had been said on the third day.  It included an exposition of the requirements of s 304 (with an exception I will mention later).  With respect to the question raised by the juror, her Honour said:

“... may 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 ...?  This is the final and critical question whether an ordinary person reacting to that level of provocation could suffer a similar loss of control;  that is to say, stab his partner.

The 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 who have self-control at the same level as ordinary citizens of his age.  ...  An ordinary person is simply one who has the minimum powers of self-control expected of an ordinary citizen who is sober, not affected by drugs and of the same age and sex of the (appellant).  When one thinks of the effect of provocation on an ordinary person in the position of the (appellant) the phrase means ‘an ordinary person who has been provoked to the same degree of severity and for the same reasons as the (appellant)’.

The second question ... requires you to take full account of the sting of provocation actually experienced by (the appellant) but eliminates from your consideration an extraordinary response, if there is one ... to the provocation actually experienced.  Thus extraordinary aggressiveness or extraordinary want of self-control on the part of (the appellant) ... confers no protection against conviction for murder.”

[30] The essence of the defence of provocation is relatively comprehensible.  It was put succinctly by Brennan, Deane, Dawson and Gaudron JJ in Masciantonio v The Queen (1995) 183 CLR 58 at 66:

“Homicide, which would otherwise be murder, is reduced to manslaughter if the accused causes death whilst acting under provocation.  The provocation must be such that it is capable of causing an ordinary person to lose self-control ... .  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.”

[31]  Provocation thus consists of four elements:

(1)The deceased must have engaged in provocative conduct;

(2)The provocation or provocative conduct could have caused an ordinary person to lose self-control and act as the accused did;

(3)The provocation must actually have caused the accused to lose self-control;

(4)The accused must have killed ‘suddenly’ whilst deprived of self-control;  and before there was time (opportunity) to regain self-control.

[32]  If these elements are explained to the jury with reference to the particular evidence relating to each element a summing up on provocation will have been sufficient.  The passage I have quoted from the summing up by the trial judge shows that her Honour did in fact deal with the elements (or at least 1-3) and referred to what evidence there was relating to them.  It was a case in which the evidence was scant.  It came only from the appellant’s account given to the police in his interview and was incomplete and, indeed, fragmentary.

[33]  No doubt each trial of homicide raises different facts for consideration and when provocation needs to be considered by a jury one or other of the elements will assume more importance than the others and will have to be addressed with more emphasis.  For example, it will often be necessary to explain to a jury, when dealing with the second element, that the provocation in question could have caused an ordinary person to form an intention to kill or cause grievous bodily harm and to attack the deceased with force of the like nature and extent as the accused actually used.  In the present appeal the complaint is made that the trial judge did not give an adequate exposition of the first part of the second element:  that the provocation must be capable of causing an ordinary person to lose self-control.

[34]  It is apparent that the trial judge took the directions from the precedents offered by the Supreme Court Judges’ Benchbook which contains suggested directions and a commentary on s 304.  The appellant’s particular complaint is that her Honour omitted part of the model direction and the omission is said to distort what should have been said about the second element so that the summing up on the point amounted to a misdirection which could have misled the jury.

[35]  The model directions contained in the Benchbook are for the guidance and assistance of trial judges.  There is no obligation to use them or to use the precise form in which they appear.  As long as a jury is properly instructed on all relevant questions of law and appropriate assistance is given with respect to the evidence, a summing up will be appropriate whatever form it takes and whatever regard or disregard is had to the Benchbook directions.

[36]  Apart from that general observation, it is also clear that the Benchbook helpfully contains directions on all possible points which experience suggests might arise in the course of a trial and which may need to be addressed in a summing up.  That is not to say that every direction on a particular point or section will be appropriately given in every case.  If a trial judge is to make use of the model directions the judicial task is to select those directions which are relevant to the facts and circumstances of the particular case and resolutely ignore those that are not.  To do otherwise will be to instruct the jury with respect to irrelevancies and increase the jury’s anxiety and perhaps cause confusion.

[37] The passage in the Benchbook which the trial judge omitted, and which the appellant submits her Honour should have included, reads:

“In the present, this translates to a person with the minimum powers of self control of an ordinary person, as described earlier, who is subjected ... [for example, to a sexual advance by the victim which is aggravated because of the defendant’s special sensitivity to a history of violence and sexual assault within the family] [none of the attributes or characteristics of the particular defendant will be necessarily irrelevant to an assessment of the content and extent of the provocation involved in the relevant conduct].”

[38] The provenance of the passage is a judgment of McHugh J in Green v The Queen (1997) 191 CLR 334 at 369.  Green was a case in which the accused killed a man who made persistent, unwelcome, drunken, homosexual advances.  The accused was a young man who had witnessed his father take advantage of his young sisters to molest them sexually.  It left him with a deep disgust of such conduct and a heightened propensity to react with revulsion to it.  It was that fact which led McHugh J to say:

“In the present case, this translates to a person with the minimum powers of self-control of an ordinary person who is subjected to a sexual advance that is aggravated because of the accused’s special sensitivity to a history of violence and sexual assault within his family.” (The word ‘case’ is, no doubt inadvertently, omitted from the Benchbook.)

[39]  The point of this is that in some cases the explanation of the second element must be expanded.  These cases are those in which, like Green, the provocative conduct had a particular exacerbating effect on the accused because of some personal attribute or characteristic which the common man or woman in society does not possess.  It may be membership of a race or ethnic group, or physical or mental disability, or past history.  Where by reason of that attribute the deceased’s insult is felt with enhanced keenness by the accused and he reacts with greater fury than someone without that attribute, the ordinary person who fulfils the objective criterion in the second element must be notionally supplied with that attribute, so that what is to be judged is whether the person with ordinary powers of self-control could react to the provocation offered to the accused, if the ordinary person himself possessed the attribute which made the provocation more hurtful.

[40]  This is the reason for explaining to the jury when directing on the second element that what has to be considered is the reaction of the ordinary person to the particular provocation, and that they must take full account of the sting of the provocation actually experienced by the accused, or that they must consider the matter by reference to an ordinary person in the position of the accused.  These phrases which are interchangeable and which are meant to convey the same concept do not all have to be used.  Indeed none of them must be used as long as the underlying concept is explained by whatever words are appropriate for the task.

[41] Stingel v The Queen (1990) 171 CLR 312 concerned s 160 of the Tasmanian Criminal Code which, unlike s 304, included a specific reference to acts or insults “of such a nature as to be sufficient to deprive an ordinary person of the power of self-control”.  Notwithstanding that no such phrase appears in s 304 it is clear that for the section to operate the provocative conduct in question must, as well as causing the accused to lose self-control, have the capacity to cause an ordinary person to do so.

[42] In Stingel the Court approved the judgment of Wilson J in R v Hill [1986] 1 SCR 313 at 342:

“The objective standard, therefore, may be said to exist in order to ensure that in the evaluation of the provocation defence there is no fluctuating standard of self-control against which accuseds are measured.  The governing principles are those of equality and individual responsibility, so that all persons are held to the same standard, notwithstanding their distinctive personality traits and varying capacities to achieve the standard.”

[43] The Court then went on (324):

“... that does not mean that the objective test was intended to be applied in a vacuum or without regard to such of the accused’s personal characteristics, attributes or history as served to identify the implications and to affect the gravity of the particular wrongful act or insult.”

At 326 the Court said:

“Even more important, the content and extent of the provocative conduct must be assessed from the viewpoint of the particular accused.  Were it otherwise, it would be quite impossible to identify the gravity of the particular provocation.  In that regard, none of the attributes or characteristics of a particular accused will be necessarily irrelevant to an assessment of the content and extent of the provocation involved in the relevant conduct.  For example, any one or more of the accused’s age, sex, race, physical features, personal attributes, personal relationships and past history may be relevant to an objective assessment of the gravity of a particular wrongful act or insult.”

And at 327:

“The function of the ordinary person ... is to provide an objective and uniform standard of the minimum powers of self-control which must be observed before one enters the area in which provocation can reduce what would otherwise be murder to manslaughter.  While personal characteristics or attributes of the particular accused may be taken into account for the purpose of understanding the implications and assessing the gravity of the wrongful act or insult, the ultimate question posed by the threshold objective test ... relates to the possible effect of the wrongful act or insult, so understood and assessed, upon the power of self-control of a truly hypothetical ‘ordinary person’.  Subject to a qualification in relation to age ... the extent of the power of self-control of that hypothetical ordinary person is unaffected by the personal characteristics or attributes of the particular accused.”

[44] Stingel was not a case in which the accused possessed any particular attribute or characteristic, apart from his youth, which might have made the provocation in question more hurtful than to any other “ordinary person”.  Green was such a case, and the judgments in that case exemplify how the principle enunciated in Stingel is to be applied to such circumstances.  The relevant Act was the Crimes Act 1900 (NSW), s 23(2)(b) of which required that the deceased’s provocative conduct be “such as could have induced an ordinary person in the position of the accused” to lose self-control and form an intention to kill.  Brennan CJ thought that the section operated similarly to the Tasmanian Code considered in Stingel.

[45] The Chief Justice said of s 23(2)(b) (339-340):

“For the purposes of applying this standard, the notional ordinary person is placed ‘in the position of the accused’.  In other words, the significance of the deceased’s conduct is assessed by reference to its significance to the accused, and the ordinary person is notionally exposed to conduct having that significance in order to determine whether the ordinary person could have been induced thereby to form either of the prescribed intents.  Paragraph (b) requires the jury to take full account of the sting of the provocation actually experienced by the accused, but eliminates from the jury’s consideration any extra-ordinary response by the accused to the provocation actually experienced.”

[46] Dealing with Green’s hypersensitivity to unwanted sexual advances, the Chief Justice said (342):

“The ... factor was relevant ... because it tended to make it more likely that the appellant was more severely provoked by the deceased’s unwanted homosexual advances than he would otherwise have been and thus more likely that he had been induced thereby to lose self-control and inflict the fatal blows and more likely that the appellant was so incensed by the deceased’s conduct that, had an ordinary person been provoked to the same extent, that person could have formed an intention to kill ... or … inflict grievous bodily harm ... .”

[47] McHugh J said in the passage that immediately precedes that which I have already quoted (368-369):

“The phrase ‘an ordinary person in the position of the accused’ means an ordinary person who suffered the provocation which the accused suffered as a result of the conduct of the deceased.  The standard against which the loss of self-control is judged is that of a hypothetical ordinary person.  That person is unaffected by the accused’s idiosyncrasies, personal attributes or past history, save and except that the words ‘in the position of the accused’ require that the hypothetical person be an ordinary person who has been provoked to the same degree of severity and for the same reasons as the accused.”

I do not myself, with respect, find the phrase “for the same reasons as the accused” likely to be readily understood by a jury.  I apprehend that it means “by reason of the accused’s particular attributes which made him especially susceptible to the provocation”.

[48] To complete the citation of authority, Brennan, Deane, Dawson and Gaudron JJ said in Masciantonio (66-67):

“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 ...”.

[49]  This examination of the authorities demonstrates that the direction, the absence of which the appellant submits misdirected the jury, will only be necessary in those cases where the provocative conduct has an enhanced effect on the accused for some reason peculiar to the accused.  The reason may be any of those identified in Masciantonio or perhaps some other.  The evidence in the particular case will demonstrate whether one is dealing with an accused with a particular susceptibility to the provocation offered or whether one is dealing with an accused from the common lump of humanity who has only the susceptibility of his fellows to respond to insults.  When a trial judge is dealing with an accused of the former kind it will be necessary to explain the second element of provocation by reference to the High Court’s expositions.  In those cases where a trial judge is dealing with an accused in the second category there is no need for it and to attempt it may cause confusion.

[50]  The appellant’s case was of the second type.  There was nothing about him (his Aboriginality forms the substance of the complaint in ground 2 of the notice of appeal) which contains any reason for thinking that the appellant’s reaction to what the deceased said or did would be any different to that of anyone else (I hesitate to use the phrase “ordinary person”).  There was nothing in the evidence to suggest that any personal history, past relationship or other attribute would make the appellant particularly responsive or susceptible to the deceased’s conduct.

[51]  It follows that the omitted direction was not required and, indeed, should not have been given.  Its omission does not found any proper criticism of the summing up.

[52]  Ground 2 is that the trial judge erred in directing the jury in terms of an “ordinary person” instead of an “ordinary Aboriginal person”.  Underlying, and implicit in, the ground is that Aboriginal persons, or Aboriginal men, differ from others outside the group in their capacity for exercising self-control in the face of insults and provocation not referable to their race or Aboriginality.  It is a large assertion that all members of one group differ from others outside the group in the extent to which they exercise self-control, and one that cannot be accepted in the absence of compelling evidence.  No attempt was made at trial or on appeal to produce such evidence.

[53] That apart, the point is precluded against the appellant by authority.  In Mankotia (2001) 120 A Crim R 492 the appellant was convicted of murder.  He appealed on the ground that the trial judge erred in directing the jury that the objective test of provocation under s 23(2)(b) of the Crimes Act did not include the appellant’s ethnic or cultural background.  He was Indian.  The appeal was dismissed on the basis that the judgments of the High Court in Stingel, Masciantonio and Green were contrary to the contention that the “ordinary person” was one of the accused’s own race or ethnic grouping.  Heydon JA pointed out that the judges in Stingel (494):

“... held in relation to the Tasmanian equivalent to s 23(2)(b) that the ordinary person is not to be invested with any characteristic of the accused other than age.  ... In Masciantonio ... four Justices comprising the majority did not depart from the law as stated in Stingel.”

Smart AJ said (494-495):

“The appellant seeks to have this Court follow the judgments of McHugh J in Masciantonio ... at 72-74 and Green ... at 368 ... and hold that when a jury is considering whether the provocation was capable of causing an ordinary person in the position of the accused to lose self-control it should take into account the ethnic or cultural background of the accused. 

This is not an approach which is open to this Court in view of the decisions of the High Court in Stingel ... Masciantonio and Green.”

Nor is the approach open to this Court.

[54]  The appellant’s next point was that the trial judge failed to give the jury adequate direction on the terms “heat of passion” and “sudden provocation”.  This ground refers to the brief remarks made to the jury by her Honour when they returned at 8.51pm on the third day.

[55]  It is true that the trial judge said nothing to assist the jury’s understanding of what was meant by the phrase “heat of passion”.  Her Honour’s attempt at an explanation that the jury should understand them from their own “life experience” would have puzzled rather than enlightened the jury.  Understanding of the meaning of words comes from knowledge and education, not experience.  “Heat of passion” is of course an outdated expression but it is not difficult to explain.  It means only extreme emotion of some sort:  almost invariably anger in this context though, on occasions, it may also include fear.  See Van Den Hoek v The Queen (1986) 161 CLR 158 at 167 per Mason J.  “Heat of passion” denotes some emotion, or passion, of great intensity experienced by an accused which deprives him or her of self-control and induces an intention to kill the one who caused the emotion, or do him or her grievous bodily harm.

[56]  The trial judge did attempt to explain “sudden provocation”.  Her Honour told the jury of the need for an accused to react quickly and that retaliation following “mulling” things over or “brooding over a grievance” would not amount to provocation in law.  The explanation is accurate as far as it goes although it would have been more helpful to direct the jury to the requirement of the section that the killing must occur under the influence of extreme emotion (“heat of passion”) and before there was time for self-control to be regained.

[57]  Despite these deficiencies the summing up overall was adequate.  The trial judge gave a long and comprehensive explanation of provocation (save for the fourth element) in the initial charge to the jury and in the repetition of it on the evening of the fourth day when the jury was exhorted to reach a verdict if it could, consistent with the individual juror’s oath or affirmation to render a true verdict.  The jury’s attention was directed to the need to consider whether the accused was deprived of self-control by reason of any provocation offered by the deceased.  This captures the essence of what is meant by killing in the heat of passion and adequately put that concept to the jury.

[58]  The trial judge did not direct the jury’s attention to the fourth element, that for s 304 to operate the killing must have occurred before the accused had time for his anger to abate.  All that her Honour said on this point is to be found in the short exposition given in answer to the jury’s question on the evening of the third day.  As I mentioned what was said was right but did not go far enough to properly explain the requirement that the homicide must have occurred before there was time, or opportunity, or occasion, for the accused to regain his composure, or self-control.  This element should have been explained more fully, but on the facts of this case there was nothing to indicate whether the accused’s attack on the deceased followed immediately upon the insults, or whether they occurred over time, or even after some interlude of peace.  No complaint was made at the time about that omission which can only have assisted the appellant by removing from the jury’s consideration a factor that might have restricted the operation of the section.  The failure to instruct the jury on this element of provocation cannot have caused the appellant any detriment.

[59]  The last ground is that the verdict was unreasonable, being against the weight of the evidence.

[60]  It was quintessentially for the jury to determine whether what was known of the deceased’s conduct amounted to provocation in law.  The jury was adequately instructed as to the nature of provocation and the onus of proof.  In making their assessment the jury had the evidence that the appellant fell on the knife, though they may have discounted that as being unlikely, as well as his account that he reacted to the deceased’s insults rather than the knife wound she inflicted.  They also had to consider the number of stab wounds she sustained.  This is not a case in which a rejection of the defence can be seen to be unreasonable.  The jury might have returned either verdict.  There is no basis for disturbing the one delivered.

[61]  The appeal must be dismissed.