SUPREME COURT OF QUEENSLAND

[1]  KEANE JA:  In the early hours of the morning of Saturday, 31 July 2004, the appellant killed his father, Murray Pollock ("the deceased"), by striking him with a rock taken from a wall in the garden of the home of the deceased. 

[2] In November 2006 the appellant was convicted upon the verdict of a jury of murdering the deceased.  The appellant did not dispute that he had unlawfully killed the deceased.  The issues at that trial were whether the appellant had intended to kill the deceased and whether, if he did, he did so under provocation within the meaning of that term in the Criminal Code 1899 (Qld) ("the Code").  The appellant appealed against his conviction, and on 25 July 2008 the Court of Appeal allowed the appeal, set aside the conviction and ordered a retrial.[1]

[3] At the retrial in November 2008, the appellant pleaded guilty to manslaughter, but not guilty to the charge of murder.  At this trial, he raised only the defence of provocation.  The jury was discharged on the third day of the trial.  The appellant's trial commenced again on 20 November 2008 and occupied 10 days with the jury giving its verdict on the morning of the 11th day. 

[4] The jury found the appellant guilty of murder.  The appellant seeks to set aside the conviction, and contends that a verdict of manslaughter should be entered and that no new trial should be ordered.

[5] The appellant's notice of appeal was amended with the leave of the Court.  As a result of those amendments, a number of arguments were canvassed on the appellant's behalf.  These arguments can be discussed under four broad headings:

(a) the judge's directions on provocation;

(b) the conduct of the Crown Prosecutor;

(c) other aspects of the conduct of the trial; and

(d) the reasonableness of the jury's verdict.

[6] It is necessary to preface that discussion with a summary of the evidence led at trial relating to the killing of the deceased.

The evidence at trial

[7] On the night of 28 July 2004 the appellant moved into the house where the deceased lived.  The appellant was then 23 years old.  He had been living with his girlfriend, Ms Lindsay Brownlie, for two and a half years, but they had quarrelled.

[8] On the night of Thursday, 29 July 2006, Ms Brownlie slept with the appellant at the deceased's house.

[9] On Friday, 30 July 2004, the appellant attended at a construction site for work organised for him by the deceased.  After work the appellant went out with a co-worker.  The appellant telephoned Ms Brownlie at about 4.50 pm and invited her to join him, but she said that she was too busy to see him.

[10]  Later on the evening of 30 July 2004, the appellant's brother, Graham, telephoned Ms Brownlie and her friend, Ms Megan Bray, and invited them to come over to the deceased's house.  They accepted the invitation.  At about 10.00 pm the deceased returned home and participated in a drinking session with his brother, Ms Brownlie and Ms Bray.

[11]  In the early hours of the morning of Saturday, 31 July 2004, the appellant arrived at the house in company with another female companion, Ms Zoe Spottiswood.  The others were still awake and were drinking and talking.  Graham Pollock gave evidence that the appellant asked him what was "she" – referring to Ms Brownlie – doing there.  Graham said that he replied that he did not think that the appellant was coming home that evening.  The appellant and Ms Spottiswood joined the others for 10 to 15 minutes and then went into the appellant's bedroom and shut the door.  The deceased and Ms Bray left the house and went for a walk.  Graham and Ms Brownlie went outside.

[12]  Some time later, according to Ms Brownlie, the appellant emerged from the house and asked why she was there.  According to her, he was angry at her.  She went inside, and the appellant stayed outside with Graham.  Graham gave evidence that the appellant repeatedly told Ms Brownlie to leave.  He confirmed that Ms Brownlie went inside, and heard the appellant talk about their childhood, and the behaviour of the deceased towards them.

[13]  Graham Pollock gave evidence that they talked about occasions when the deceased would hold each boy's penis and pretend to cut it off.  They also talked about the floggings which the deceased used to give them.  The appellant asked if Graham recalled him, that is the appellant, having blood in his underpants.  Graham said that he did recall this.  The appellant said that the deceased had sexually abused him.

[14]  Other evidence established that the deceased left Graham and the appellant with their mother when the appellant was about seven years old, but when the appellant was about 15 years of age he moved to Brisbane to live with his father for about a year.  The appellant moved in with the deceased again in 2000 or 2001 when for a time Ms Brownlie moved in too before she and the appellant moved out.

[15]  Graham Pollock said that after discussing their childhood the appellant said that no-one wanted him there (at the deceased's house), and that he should get into his car and drive into a truck.  Graham said that while they were talking the deceased and Ms Bray returned to the house and went inside.  According to Graham, at this point, the appellant said:  "And that cunt in there, I fucking hate him."  He said he had the "Pollock gene".  He said:  "I fucking hate him, I look just like him.  I'm not happy."  According to Graham, the appellant then said that he was going to kill his daughter because she too looked like the deceased.  The appellant said that he should wait on a bridge and "I will throw a rock through his fucking window."

[16]  Graham Pollock gave evidence that at some stage the deceased came outside.  The deceased told the appellant and his brother:  "You just better settle down."  Graham said that he told his father to "Fuck off".

[17]  Ms Bray gave evidence that the appellant spoke to the deceased inside the house and told him to "fuck off" and to "calm down".  The deceased said that the appellant was the only one with a problem.  The appellant replied that he had come home to find his ex-girlfriend there and he had lost a job opportunity.  Ms Bray said that she went into the deceased's bedroom, and the appellant and Ms Brownlie also came into the bedroom and the appellant said to her:  "If that bastard touches either you or Lindsay, I'll kill him."

[18]  Ms Bray said that she and the deceased had sex in the deceased's bedroom.  Ms Brownlie said that the appellant said Ms Bray should not have been in the bedroom with the deceased and that Andrea (the appellant's aunt and the deceased's sister) did not want to bring her children to the house because of what the deceased had done to her.  The appellant also told Ms Brownlie that the deceased had "anal-probed" him when he was little.  Graham Pollock said that he heard the appellant demanding to know what Ms Bray was "doing up there with that dirty old cunt".

[19]  Ms Brownlie gave evidence that she went outside and the appellant followed her but then returned inside.  She followed him back inside and caught up to him near the bathroom/laundry door.  He was holding a black 15 cm kitchen knife.  He was very upset.  She told him he was being silly, and he said he was upset with Ms Bray and the deceased.  He then returned to the kitchen and went to sleep.

[20]  The appellant woke up and said to Ms Brownlie that he would inform her employer that she and Ms Bray had used drugs.  At this point Graham Pollock said that he had heard enough and that Ms Brownlie should tell Ms Bray that they were going.  The appellant then asked Ms Brownlie not to tell the deceased the reason why they were leaving.

[21]  Ms Brownlie knocked on the door to the bedroom of the deceased and said that they had to leave because the appellant was angry and wanted Ms Bray and her gone.  At this point she heard the deceased say that he was "going to kill that fucking little cunt".  Ms Bray also gave evidence that the deceased was angry that she was leaving and threatened to kill the appellant.  As Ms Bray left the bedroom, the deceased was getting dressed.

[22]  Graham Pollock gave evidence that he heard the deceased say of the appellant that he was "sick of his shit", and:  "I'll kill him, I will fucking kill him."

[23]  While the two women were leaving the house, the appellant followed them and told them to "fuck off".

[24]  Graham Pollock gave evidence that threats to kill were not unusual in the house.  This sort of language was employed every time someone got a bit drunk, which was two or three times a week.

[25]  Graham Pollock, Ms Bray and Ms Brownlie left the house shortly before 6.00 am on 31 July 2004.

[26]  At about 5.50 am, a 000 call was received from a neighbour, Mr Hart.  Mr Hart died before trial and so his statement to police was tendered.  He was awakened by the noise of barking and then heard another noise like groaning.  He heard a voice say:  "Gerry, ring the police" but he could not say whose voice he heard.  He thought that the voice he heard was that of the deceased.  The "Gerry" referred to was Mr Hart.

[27]  Another 000 call was received shortly after 6.00 am.  It was from the appellant who identified himself as "Andy Pollock".  The appellant said that he had killed his dad.

[28]  Another 000 call was received from Ms Spottiswood.

[29]  When the police arrived at the house, they found the appellant crying and sitting in the shower.  The police recorded their conversations with the appellant and Ms Spottiswood.  Ms Spottiswood, who was not called as a witness at trial, was recorded in a police field interview tape saying that she woke up to hear "like arguing and fighting in the bedroom".  They were "pounding" on each other.  Then they dragged "each other" outside.  At the time of the trial in November 2008, Ms Spottiswood suffered from a serious mental illness.  The tape of Ms Spottiswood's statement to police was admitted into evidence pursuant to s 93B(2)(a) of the Evidence Act 1977 (Qld). 

[30]  The appellant was interviewed by police later on 31 July 2004.  At that time he said that he did not remember what had occurred between him and the deceased.  He said he suffered blackouts when he drank too much.  He said that the deceased had been a "fucking cunt to me my whole life.  Oh, no, fucking snapped me last night – I don't know, he just fucking – I don't know what he did, but – I don't know what I did."

[31]  Ms Brownlie gave evidence that on 4 August 2004 she visited the appellant in prison.  She gave evidence that he told her that the deceased was really pissed off with him and came into the appellant's bedroom where the appellant was packing his clothes with a view to leaving the house.  They began to wrestle and then the deceased went into the bathroom.  The appellant said to Ms Brownlie that he thought he had ripped off part of the deceased's face.  The deceased closed the door to the bathroom and the appellant banged on the bathroom door and said that he knew what the deceased had done to Andrea.  He said that the deceased jumped out of the bathroom window.  Next, they were fighting in the garden and the appellant picked up a rock and tapped it or held it up to the deceased or something.  The appellant told Ms Brownlie that the deceased said:  "Go on, I bet you can't do it, you pathetic little fuck.  Go on, I bet you can't do it."  The appellant then hit him with the rock.  Ms Brownlie was not cross-examined in relation to this conversation.

[32]  The police found the body of the deceased some distance from the front door of the house which could have been between 10 and 30 metres.  The body was lying face down.  A rock weighing just over seven kilograms was found near the corpse.  The rock bore DNA material consistent with the DNA of the deceased.  It appeared to have been taken from a loose rock retaining wall two and a half metres from the body.  The trampled state of the vegetation in a radius of three metres around where the deceased's body was found was such as to suggest the inference that there had been a struggle in the immediate vicinity.  There were also signs of a struggle inside the house:  there was blood on sheets in the appellant's bedroom and beads from a necklace he had been wearing on the floor.  There were some of the appellant's bloodstains in the bathroom and a wall near the front door.  The string from the necklace the appellant had been wearing was found in the passageway near the front door.

[33]  The deceased died from head injuries.  It was apparent that he had been struck on the back of the head.  The evidence of Dr Ong was that two blows from the rock could have been sufficient to account for the injuries to the head of the deceased, but as many as eight blows could have been delivered.  Severe force was required to have caused the injuries.  It was likely that the deceased was standing upright when the first blow was delivered.

[34]  The appellant did not give or call evidence at his trial.

The judge's directions on provocation

[35]  The submission made on the appellant's behalf under this rubric is that the directions given to the jury by the learned trial judge on the issue of provocation were erroneous in point of law. 

[36]  The learned trial judge instructed the jury relevantly as follows:

"The prosecution will have succeeded in satisfying you that provocation is excluded as a defence if it has satisfied you beyond reasonable doubt of any one of the following matters: firstly, the potentially provocative conduct of the deceased did not occur; or, second, an ordinary person of the same age as Andrew Pollock in the circumstances could not have lost control and acted as he acted with intent to cause death or grievous bodily harm; or, thirdly, Andrew Pollock did not lose self-control; or, fourthly, the loss of self-control was not caused by the provocative conduct; or, fifthly, the loss of self-control was not sudden; or, sixthly, Andrew Pollock did not kill Murray Pollock while his self-control was lost; or, seventhly, when Andrew Pollock killed Murray Pollock there had been time for his loss of self-control to abate.

If you are satisfied beyond reasonable doubt as to any of these matters, then the prosecution has disproved provocation …"

[37]  The terms of this direction had been discussed with counsel by the learned trial judge before it was given.  The formulation was agreed to by the appellant's counsel.  In particular, counsel for the defence accepted that in relation to the fifth element of the formulation there should be no reference to an example as in:  "The loss of self-control was not sudden.  For example, the killing was premeditated." 

[38]  One of the complaints now agitated on the appellant's behalf is that the appellant was disadvantaged by the absence of reference to premeditation.  It may be said immediately that if the appellant was disadvantaged in this respect, that was cured when the learned trial judge gave the following further direction, also with the agreement of the appellant's counsel:

"Now, the other is the definition of 'sudden'.  Now, I take it you're referring to the use of 'sudden' in the sheet that I gave you at point 5? Yes, thank you.

Well, 'sudden' in that context I've taken from the Oxford English Dictionary, and it means - it says 'of actions and feelings, unpremeditated, done without forethought, acting without forethought or deliberation, performed or taking place without delay; speedy, prompt, immediate'. But 'sudden' is an ordinary, English word. It doesn't have any special legal meaning in this context. It's an ordinary, English word that means what you understand it to mean as ordinary members of the community. But the dictionary has these meanings: 'Unpremeditated, done without forethought, acting without forethought or deliberation, performed or taking place without delay, speedy, prompt, immediate'. But what it means in the Criminal Code, what it means in this part of the law is it's own meaning. It means sudden. If there was another word that was better, another word would have been used, but that gives you some idea of the ordinary, English meaning of the word sudden in this context."

[39]  The learned trial judge's instruction to the jury in relation to provocation was in accordance with the statement of the law made by McMurdo P in her Honour's reasons for judgment allowing the appellant's first appeal to this Court.  On that occasion McMurdo P had said:[2]

"… As Callinan J said about the somewhat analogous matter of directions to a jury on the defence of accident in Stevens v The Queen: ((2005) 227 CLR 319 at 371) '… 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 premeditated); 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."

[40]  It is now argued that this formulation was wrong in law for two reasons.  The first is that (as it is put in the appellant's written submissions) this formulation:

"has displaced and duplicated a requirement of suddenness where it is not warranted by the law.  In short, s 304 requires that provocation be sudden; that the provocation cause loss of control; and that the unlawful killing occur before there is time for the accused to regain control.  However, the President's seven part formulation, in element 5, takes the requirement of suddenness from the provocative acts (usually, and in this case, acts of the victim) and creates an extra element of provocation (which must be present for the defence to be available) that the accused person lost control suddenly.  This requirement is not part of the law … [and] has been added to the less onerous requirement that the accused has acted before there is time for his passion to cool, that is, to regain control of his actions."

[41]  The second respect in which it is said that the formulation by McMurdo P is erroneous is that the sixth and seventh steps in her Honour's formulation were apt to distract the jury from focusing upon "the conduct of the accused himself and to common experience of human affairs"[3] as to whether "there has been time for [the accused's] passion to cool".  It is said that the use of the President's formulation was apt to mislead the jury into applying an objective test of reference to some hypothetical "ordinary person".

[42]  I would reject these submissions.  To explain why, I must refer first to the statutory text of s 304 of the Code.

[43]  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."

[44]  In Kaporonovski v The Queen,[4] McTiernan ACJ and Menzies J expressed the view that s 304 of the Criminal Code cannot be understood without reference to the common law of provocation:  "… it is only to the common law to which reference can be had to determine the circumstances in which provocation, however defined, reduces a killing from murder to manslaughter."  In R v Pangilinan,[5] this Court accepted that the balance of authority supports the view that "the common law definition of provocation applies" in Queensland.  In this case neither party invited the Court to proceed upon a different view of the law.

[45]  Counsel for the appellant emphasised that the elements of provocation as a partial defence to murder must be understood as interrelated concepts.  They referred to the reasons of Barwick CJ in Johnson v The Queen.  In that case his Honour said:[6]

"It is to my mind, important to stress that operative provocation does no more than reduce the crime of murder to manslaughter. Unless the jury would have been prepared to find murder, no question of what I have called operative provocation arises. In order to find murder, there must be present an actual intent to kill or to do grievous bodily harm, leaving on one side the case of reckless indifference to foreseen consequences."

[46]  Later Barwick CJ went on to explain that provocation requires a consideration of the concepts of the extent as well as causality of the loss of self-control.  His Honour also adverted to the interrelationship of the elements of provocation.  His Honour said:[7]

"An intent to kill may be a premeditated intent, that is to say, an intent existing anterior to the conduct or act which is put forward as provocation. In that event, whatever provocation may supervene will have no relevance. The premeditated intent precludes the possibility of operative provocation. That is reflected in the final words of par. (c) of the proviso to s 23.

But, as was pointed out in Parker v The Queen ([1946] AC 588), although there may be no premeditation and although there may be provocation, an intent to kill or to do grievous bodily harm may arise independently, and not because of the provocation. Provocation, whatever it might have been, will not be operative to reduce the crime to manslaughter where the relevant intent has arisen independently of the provocation. This may be so in a case where the effect of the provocation is spent before the intent to kill arises. It is in this connexion that action in the heat of the moment and the absence of a 'cooling off' period are such important considerations.

The importance of the fatal act having been taken in the heat of passion may also be related to the proportion of that act to the provocation and to whether the provocative act or situation is such as would lead an ordinary man to lose his self-control so as to do an act of the kind of the fatal act done by the accused. If an ordinary man would not be so far affected, there is no case for operative provocation. The accused's act, though done during his loss of self-control, will be accounted as due to malice.

…

My reading of the early cases relating to provocation leads me to the opinion that it was then conceived that there were degrees of loss of self-control; that the description 'loss of self-control' was not of an absolute state; this acceptance that there are degrees of loss of self-control was consistent with the later adoption of the view that whether the accused had relevantly lost self-control depended on whether the ordinary man would, in like circumstances, have lost self-control to the point of doing an act of the kind and degree by which the accused killed the deceased. Disproportion between the provocative act and the fatal act might result in the conclusion that an ordinary man would not have so far lost self-control in like circumstances. The provocation in that case is relevantly inoperative. The notion that a state of loss of self-control is relative is basic to the concept of the objective test. That test properly applied keeps provocation within bounds … But I can understand, once the objective test of the lack of self-control has been adopted, that it is necessary to consider in applying it whether an ordinary man would have lost self-control to the requisite extent by reason of the provocation before it is possible to reduce the crime to manslaughter. East's reference to an act of provocation which might heat the blood to a proportionate degree of resentment and keep it boiling to the moment of the commission of the fatal act is understandable, in my opinion, on the footing that the act of resentment must in fact have been the act of a man out of self-control in circumstances where an ordinary man would have lost self-control to the point of doing an act of that kind and degree (see Pleas of the Crown (1803), vol 1, p 238). It thus relates both to the extent as well as to causality of the loss of self-control …

Having considered the reported cases and the writings on this matter I have come to the conclusion that the proportion of the fatal act to the provocation is part of the material on which the jury should consider whether the provocation offered the accused was such as would have caused an ordinary man, placed in all the circumstances in which the accused stood, to have lost his self-control to the point of doing an act of the kind and degree of that by which the accused killed the deceased. That proportion is not, in my opinion, a separate matter to be considered after it has been decided that an ordinary man would have lost self-control in the circumstances by reason of the provocation. The relationship of the fatal act to the provocation is perhaps best expressed by saying that the provocation must be such as would lead an ordinary man in the accused's circumstances to so lose his self-control as to do an act of the kind and degree as the act by which the accused killed the deceased.

Too much, it seems to me, has been taken from Lord Devlin's dicta in Lee Chun-Chuen v The Queen ([1963] AC, at pp 231-232): and perhaps too little prominence has been given to so much of his Lordship's remarks as emphasized the inter-relationship of the three matters of which he spoke. He mentioned 'They'–ie the stated three elements–'are not detached. Their relationship to each other–particularly in point of time, whether there was time for passion to cool–is of the first importance. The point that their Lordships wish to emphasize is that provocation in law means something more than a provocative incident'. Their Lordship's decision in that case was that the evidence established nothing but a provocative incident without relevant consequence. Lord Devlin's summation of the 'elements' in provocation was not for the purpose of detailed analysis of them but as part of the indication that, to be operative, the provocation must have produced an appropriate loss of self-control during which the fatal act was done. His Lordship did not set out separate elements to be considered disjointly in some temporal order. On the contrary, he emphasized the interaction of the several matters, which might be called considerations, to be in mind in deciding whether the provocation was, or could in law be permitted to be, operative in reducing the crime to manslaughter." (emphasis added)

[47]  Barwick CJ concluded his discussion of the necessity for the relevant act of provocation to be such as to have caused an ordinary person to have lost his or her self-control to the extent of forming and acting upon an intent to kill or to do grievous bodily harm.  His Honour said:[8]

"To take into account the mode and extent of retaliation when determining whether an ordinary man, subjected to the like acts of provocation in all the circumstances in which the accused then stood, would have lost self-control to the point of doing something akin to what the accused has done is one thing. To require that it be established positively and, as a separate issue or element, whether the act of the accused was in fact proportionate to the provocation, is quite another; or to require the Crown as a specific matter to negative that proportion is quite another. This is particularly so if it be assumed that it has already been concluded that the accused had relevantly lost self-control. In considering whether an ordinary man would have lost self-control so as to form an intent to kill and to kill in the manner in which the accused did so, the jury may think the provocation was such that an ordinary man might react in the way in which the accused reacted. After all, it is the induced intent to kill rather than the induced fatal act which is the critical consideration. As I have stressed, the provocation is irrelevant unless there was an intent to kill or to do grievous bodily harm: and the provocation to be operative must have caused that intent. No doubt the question is difficult, namely: would the actual provocation, which has caused the accused so far to have lost self-control as to have formed an intent to kill, have caused an ordinary man to have lost his self-control and to have formed that intent? To express the objective test as whether the provocation would have caused an ordinary man to have so far lost self-control as to have done an act of the kind or degree done by the accused, tends somewhat to obscure the necessity of there being an intent to kill or do grievous bodily harm. Emphasis on the essential causation of the requisite intent may, on the one hand, make provocation more difficult to establish and, on the other hand, lessen perhaps the importance in the mind of a tribunal of the particular way in which the intent to kill or to do grievous bodily harm was effectuated."

[48]  In Johnson v The Queen, Gibbs J (as his Honour then was) stated his view of the common law:[9]

"Murder can only be reduced to manslaughter on the ground of provocation if the provocation in fact had the effect of depriving the accused of the power of self-control. It might at first sight be thought incongruous to inquire whether the actions of a man who had lost the power of self-control were out of all reasonable proportion to the incident which had deprived him of that power. However, the law as to provocation obviously embodies a compromise between a concession to human weakness on the one hand and the necessity on the other hand for society to maintain objective standards of behaviour for the protection of human life. To use the words of Kenny, Outlines of Criminal Law, 19th ed (1966), p 173, 'Human frailty must be measured by the general average standard of ordinary men'. An ordinary man in a civilized community would regard it as absurd, and as an affront to his notions of justice, if some trivial provocation, such as mild abuse or a light blow, were regarded as extenuating the use of savage violence …"

[49]  Gibbs J went on to express his view that "it seems to me impossible to agree that the elements that go to make up provocation are quite separate and distinct".[10]  Gibbs went on to say:[11]

"It is true that in Lee Chun-Chuen v The Queen ([1963] AC at p 231) Lord Devlin referred to 'three elements', one of which was 'the retaliation proportionate to the provocation', but he immediately added ([1963] AC at pp 231-232): 'They are not detached. Their relationship to each other–particularly in point of time, whether there was time for passion to cool–is of the first importance.' The true position at common law was that the relationship of the force to the provocation was one of the matters–in some cases it might be the most important matter–to consider on the issue of provocation, not a disparate question to be considered in isolation."

[50]  In the light of these statements of high authority, it must be accepted that the elements of provocation are interrelated.  But to accept that this is so tends, in my view, to support, rather than to detract from, the utility of the formulation by McMurdo P.  In particular, the terms of step 5 in her Honour's formulation accord with authoritative statements of the common law which explain that "sudden provocation" is necessarily concerned with, and related to, the temporary loss of self-control excited by the provocation.

[51]  It is, I think, apparent that the formulation by McMurdo P which is under attack was in no way an attempt to paraphrase, or to restate in different language, the "elements" of the defence of provocation in s 304 of the Code.  Rather, her Honour's formulation was concerned to relate the terms of s 304 to the onus of proof having regard to the evidence in the case. 

[52]  To the extent that in the seven steps of the formulation there is some overlapping of the concepts involved in the defence of provocation, that overlapping reflects the interrelationship of the concepts to which the appellant refers.  The formulation serves to focus upon each of the various ways in which, on the evidence in this case, the Crown might arguably be able to negative the defence of provocation in this case.  The formulation was "customised" to the circumstances of this case.  It may not be useful in other cases. 

[53]  The formulation was stated in terms which reflect the interrelationship of the requirements of the defence.  In particular, the mode of expression used in step 5 of the formulation was apt to illustrate for a jury the nature of the necessary causal relationship between the "sudden provocation" and the consequential, and temporary, "heat of passion" in which the accused must do the acts which cause death.  It is the interrelationship between these considerations which Barwick CJ and Gibbs J were at pains to emphasise.  The formulation was apt to ensure that a jury would understand that grievances on which the appellant had brooded for a long time and which made him angry could not of themselves be regarded as provocation for the purposes of s 304 of the Criminal Code:  they had not led to a loss of the appellant's self-control.  The appellant's case was that there was provocation by the deceased at some time on the morning of his death which excited the loss of self-control in the appellant, a self-control which, notwithstanding his grievances against his father, he had previously maintained. 

[54]  In this regard, it may be noted here that the appellant's case at trial and on appeal did not involve an attempt to introduce, as a variation on the theme of the "battered wife's defence", a "battered child's defence" under which grievances resulting from long ago slights, insults and abuse may be relied upon by a child by way of excuse for a fatal attack upon an abusive parent.  This is hardly surprising:  there is no support in Australian jurisprudence for that approach.[12]  The appellant's case is, and has always been, that it was provocative words and conduct, at some time between the deceased's confrontation with the appellant in his bedroom and the killing of the deceased, which triggered the appellant's loss of self-control.

[55]  In the circumstances of the present case, to speak of "sudden" loss of control was not erroneous in point of law.  Indeed, as Mr Copley SC pointed out on behalf of the respondent, there are statements of high authority couched in these terms. 

[56]  Thus, in R v Ahluwalia,[13] Lord Taylor of Gosforth CJ, delivering the judgment of the Court of Appeal of England and Wales, reiterated that at common law:

"Provocation is some act, or series of acts, done [or words spoken] … which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his [or her] mind."

[57]  In the New South Wales Court of Criminal Appeal, Gleeson CJ, in what is, with respect, a most helpful synthesis of the position at common law in terms of principle and authority, said:[14]

"The history of the common law on the subject of provocation as a partial defence to a charge of unlawful homicide, reducing what would otherwise be murder to manslaughter, has been examined at length by the High Court in Parker (1963) 111 CLR 610; Van Den Hoek (1986) 161 CLR 158; 23 A Crim R 98, and Stingel (1990) 171 CLR 312; 50 A Crim R 186.

As Windeyer J pointed out in Parker (at 650), the law on this subject emerged from a multiplicity of rulings in single instances, which in turn were given over a period during which the law of culpable homicide underwent considerable change and development. The modern law recognises provocation as a circumstance in which an accused person is 'less to blame morally than for what he does deliberately and in cold blood': Parker (at 651). This has been explained as a concession to human frailty. The concept of loss of self-control reflects the idea, fundamental to the criminal law, and related historically to religious doctrine, that mankind is invested with free will, and that culpability consists in the abuse of that faculty. The capacity to distinguish between right and wrong, and to choose between actions, or between action and inaction, is central to our notions of moral and criminal responsibility. Legal principles concerning voluntariness and intent, insanity and diminished responsibility, are formulated in terms that assume such a capacity in ordinary people acting in ordinary circumstances. There are those who find this unscientific (eg Professor Blakemore, Professor of Psychology at Oxford University, in The Mind Machine (1988), at p 257 and pp 269-270, says that the human brain is a machine, that all our actions are the product of the brain, and that even when we feel ourselves to be in control of our actions, that feeling is itself a product of the brain). On the other hand, a judge of this Court, in a recently-published and scholarly work (D H Hodgson, The Mind Matters (1991), at p 170 et seq) observes how deeply embedded in our language, our attitudes and our laws is the assumption that our volitions determine our actions.

Devlin J, in his direction to the jury in Duffy [1949] 1 All ER 932, cited with approval by the English Court of Appeal in Ahluwalia (1993) 96 Cr App R 133, said:

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

The kind of loss of self-control that is here in question is not something that results in a state of automatism. Rather it is something that results in intentional homicide, the conduct of the accused, and the intent with which that conduct occurred, being attributable to the accused's emotional response to the provocation. The very fact that we are not dealing with absolute loss of self-control, and that questions of degree are involved, raises a difficulty, as does the consideration that a variety of emotions can produce an urge to kill, and that such emotions are not all neatly separated.

In Van Den Hoek (at 166-167; 104) Mason J pointed out that, although anger is the characteristic emotion associated with provocation, fear and other emotions may also be relevant. His Honour said:

'Traditionally the onset of sudden passion involving loss of self-control characteristic of provocation has been associated with acts or actions which provoke the accused to uncontrollable anger or resentment ... a notion that may be traced back as far as Aristotle. Indeed, the historical concept of provocation as a defence has reflected the ordinary meaning of the word, ie, an act or action that excites anger or resentment. These days, however, judicial discussion of the doctrine places emphasis on the accused's sudden and temporary loss of self-control, without necessarily attributing that loss of self-control to anger or resentment, except in so far as it is asserted that the act which causes death was done as a result of passion or, as it is colourfully expressed, 'in the heat of passion'.'

Mason J went on to reject the notion that loss of self-control caused by fear, panic, or mental instability cannot be brought into the defence of provocation.

The language of statutes of other Australian States embodies the common law principle. Section 304 of the Criminal Code (Qld) speaks of the act causing death being done in the heat of passion caused by sudden provocation. The same words are used in s 160 of the Criminal Code (Tas). This in turn reflects what was said, in explanation of the concept of provocation by Tindal CJ in Hayward (1833) 6 Car & P 157; 172 ER 1188. The jury were to decide

'whether the mortal wound was given by the prisoner while smarting under a provocation so recent and so strong that the prisoner might not be considered at the moment the master of his own understanding; in which case, the law, in compassion to human infirmity, would hold the offence to amount to manslaughter only: or whether there had been time for the blood to cool, and for reason to resume its seat, before the mortal wound was given, in which case the crime would amount to wilful murder.'

The necessity to resort to metaphor in expounding the law on this subject is disconcerting. References to supposed raising or lowering of blood temperature, reason becoming unseated, and passion mastering understanding, seem calculated to confound, rather than assist, analytical reasoning. However, our understanding of consciousness and mental processes, as compared with our understanding of more readily observable physical phenomena, is so limited that metaphor seems generally to be regarded as essential in the expression of the ideas which guide us in this area of discourse.

Assistance is sometimes found in the use of contrast. The mental or emotional state of an accused acting under provocation is described by contrast with other states of mind. For example, in R (1981) 28 SASR 321 at 325; 4 A Crim R 127 at 131, King CJ said:

'The loss of self-control which is essential is not to be confused with the emotions of hatred, resentment, fear or revenge. If the appellant, when in control of her mind and will, decided to kill the appellant because those emotions or any of them had been produced in her by the enormity of the deceased's past behaviour and threatened future behaviour, or because she considered that that was the only way in which she or her children could be protected from the deceased's molestations in the future, the crime would nevertheless be murder.'

In Croft [1981] 1 NSWLR 126 at 140; (1981) 3 A Crim R 307 at 320-321 O'Brien CJ Cr D said:

'It is never sufficient that there be simply a history of violence and abusive conduct on the part of the deceased towards the accused person which leads to a sense of grievance, frustration, repression, depression or the like, so that a day comes when the accused decides to get rid of the source of this miserable state ... '

The contrast between the formation of an intention to kill or cause grievous bodily harm arising out of emotions of hatred, resentment, fear or revenge on the one hand, and the formation of such intention as a result of loss of self-control in response to provocative conduct is not based on rigid and scientifically demonstrable distinctions. Emotions such as hatred or fear can fuel anger, and can lead to what is often regarded as a loss of self-control. One of the ways in which the common law sought to make the contrast was through the requirement that the retaliatory act be done suddenly and in the heat of passion. Even at common law, however, this requirement has been interpreted with a degree of flexibility." (emphasis added)

[58]  Similarly, in Masciantonio v The Queen, McHugh J said:[15]

"At common law a jury is entitled to return a verdict of manslaughter instead of murder if it finds that the death of the deceased was the result of a sudden and temporary loss of self-control on the part of the accused that was caused by provocative conduct on the part of the deceased. The issue can be left to the jury although the loss of self-control did not follow immediately upon, or as the result of a specific incident of, provocative conduct (R v Muy Ky Chhay (1994) 72 A Crim R 1 at 13). Moreover, the issue of provocation is predicated on a finding that the jury has found that the elements of murder have been established and that the accused had acted with reckless indifference to human life or had an intention to kill or cause grievous bodily harm to the deceased (Johnson v The Queen (1976) 136 CLR 619 at 633-634; Stingel v The Queen (1990) 171 CLR 312 at 328). However, before the provocation of the deceased can reduce a verdict from murder to manslaughter there must be evidence which could induce the jury to find that the Crown had not proved beyond reasonable doubt that an ordinary person would not have lost self-control as the result of the provocation to 'the extent and degree' that the accused did (Parker v The Queen (1963) 111 CLR 610 at 641; Johnson (1976) 136 CLR 619 at 637-638, 658, 666; Stingel (1990) 171 CLR 312 at 325). In Stingel v The Queen ((1990) 171 CLR 312 at 325, citing Holmes v Director of Public Prosecutions [1946] AC 588 at 597), this Court unanimously held that the provocative conduct 'must have been capable of provoking an ordinary person not merely to some retaliation, but to retaliation 'to the degree and method and continuance of violence which produces the death". Stingel was decided on the provisions of the Tasmanian Criminal Code, but the Court saw no significant difference between the objective self-control requirement of the Code and the objective self-control requirement of s 23(2)(b) of the Crimes Act 1900 (NSW) considered by the Court in Johnson v The Queen ((1976) 136 CLR 619) and the common law doctrine on the point. In Stingel ((1990) 171 CLR 312 at 320), the Court noted that, 'in this particular field of criminal law, the common law, the Codes and other statutory provisions, and judicial decisions about them, have tended to interact and to reflect a degree of unity of underlying notions'." (emphasis added)

[59]  It is important to note the consistent reference in these statements of high authority to the "sudden" loss of self-control, the point of this reference being that the relevant loss of control on the part of the accused must be excited by the provocation raised by the accused.  I note also that in step 5 of the formulation by McMurdo P, her Honour was seeking to make just the sort of contrast discussed by Gleeson CJ in the passage cited. 

[60]  As to the appellant's criticism of steps 6 and 7 in the formulation of McMurdo P, I am unable to understand how it is said that there is anything in the formulation which warrants complaint.  Apart from the points which have already been made, steps 6 and 7 in the formulation reiterate the concluding words of s 304 of the Criminal Code.  And as is apparent from the foregoing review of the authorities, step 2 in her Honour's formulation reflects the law as it has been expounded in authorities binding on this Court.[16]

[61]  In this regard, provocation involves acts or words which cause the sudden and temporary loss of self-control by the accused,[17] but, as has been seen from the passages cited above from Johnson v The Queen, it must be provocation which would be capable of causing an ordinary person to lose self-control.  In Masciantonio v The Queen, the majority of the High Court said:[18]

"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.

… 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 (Johnson v The Queen (1976) 136 CLR 619 at 639, per Barwick CJ).

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."

The conduct of the Crown Prosecutor

[62]  The appellant's principal complaint under this heading is that the prosecutor failed clearly to articulate the basis on which the Crown contended that provocation had been excluded beyond reasonable doubt.  In consequence, it is said that the defence was at a disadvantage in that the jury was left to decide whether "they agreed with the defence submissions" as opposed to deciding whether they were satisfied beyond reasonable doubt that the Crown case had negatived provocation.  This it is said was fundamentally unfair.  It is also said that the prosecutor encouraged the jury to speculate and made submissions which ignored the existence of cogent evidence and thereby failed to assist to ensure a fair trial of the appellant.

[63]  The appellant complains that the Crown Prosecutor unfairly failed to articulate the factual findings on which the jury should conclude beyond reasonable doubt that the provocation was not made out.  I must say that I find this argument difficult to understand.  Not the least of my difficulties is that the Crown Prosecutor addressed the jury specifically in relation to each of the seven propositions in the formulation which the parties had agreed should be put to the jury.  Defence counsel followed the same formulation in their address to the jury seeking to rebut the arguments advanced by the Crown Prosecutor. 

[64]  A further difficulty I have here is that insofar as the appellant's argument is that the Crown Prosecutor, Mr Vasta, ranged widely in his address, that was because the defence, represented by Mr Keim SC and Ms Cappellano of Counsel, chose to present a case of provocation which encompassed the totality of what might be found by the jury to have occurred after the deceased entered the appellant's bedroom.  In this regard, after the evidence had concluded the following exchange occurred in relation to what might be put to the jury in relation to provocation:

"HER HONOUR: Yes. So really, what should probably be put, and I am testing this before hearing Mr Keim, is all the factual situation leading up to the point of the killing happening, which includes all the actions and all the words that were said, or that the jury - if the jury - what the jury accepts of what was done and said.

MR VASTA: Can I say this, that I - it's still my submission that a jury have to find what is the provocative act. Now-----

HER HONOUR: Well, they don't. They don't have to make any finding.

MR VASTA: No. They have-----

HER HONOUR: It's not a special verdict. They don't say what they - they don't give their findings, apart from guilty or not guilty.

MR VASTA: No. Mmm. But they have to identify for themselves an act that could be provocative because-----

HER HONOUR: Well, isn't that a question of law or whether or not there is sufficient to constitute provocation?

MR VASTA: Well, in my submission, it's not so much that, because if your Honour looks at the seven questions that-----

HER HONOUR: Mmm.

MR VASTA: -----the President posed in this appeal matter, her Honour talked about number 4 being - number 1 being, 'The potentially provocative conduct of the deceased did not occur.', so there one has to look at, well, what is the potentially provocative conduct.

HER HONOUR: Yes, but then - yes.

MR VASTA: Sorry, and then number 4, 'The loss of self-control was not caused by the provocative conduct.', so-----

HER HONOUR: All right. Let me just get up the direction before we discuss it. So the first one is, 'Potentially provocative conduct of the deceased did not occur.'

MR VASTA: So, we have to identify what that is for the Crown to be able to negative it. In my submission, the way in which this matter has been litigated, the only potentially provocative conduct of the deceased are this: number 1, an attack by the deceased in the bedroom while the accused was, in effect, having peaceable occupation of that room; or, number 2, such an attack, that extended all the way to the - to the garden which conduct was then - ended with the words that Brownlie says that the accused reported to her.

HER HONOUR: Well - yes.

MR VASTA: Those are the only - those are the only things that, in my submission, have been raised on this evidence-----

HER HONOUR: Mmm.

MR VASTA: -----that would satisfy - you know, the phrase that the President uses, 'potentially provocative conduct'.

HER HONOUR: Well, except - well, I have a little difficulty with that, but I will explain that in a minute. I might hear from Mr Keim first.

MR VASTA: Thank you, your Honour.

HER HONOUR: Yes, Mr Keim?

MR KEIM: Your Honour, we have said from the beginning that the potentially provocative conduct is the commencement of and continuation of the fight.

HER HONOUR: Mmm. You see, what I was going to say the problem I have to Mr Vasta was it doesn't really matter whether what the defendant said to Miss Brownlie the deceased said, whether he said it or not, even if they didn't think that had happened, that wouldn't mean that potentially provocative conduct hadn't occurred, and you wouldn't want them to think, well, they have to be satisfied to whatever standard or fail to be - they had to be - if they were satisfied that some of that didn't occur, then that negatived provocation, it wouldn't, but what really matters was that there was an attack on the deceased in the bedroom, a fight in the bedroom, in the accused's bedroom, which - the defendant's bedroom, which continued out into the garden.

MR KEIM: Yes. We rely on Ms Spottiswood's evidence that they were pounding each other and arguing with each other.

HER HONOUR: Yes.

MR KEIM: So, the Crown can't rule out, we say, that various words were said and-----

HER HONOUR: Yes. It's unlikely that was the only thing said.

MR KEIM: Yes, and we rely on the forensic evidence of the trampling and the blood in the various areas.

HER HONOUR: Mmm.

MR KEIM: And Ms Spottiswood's evidence that the fight actually went out there in that area.

HER HONOUR: So really you are saying I should tell the jury it doesn't really matter whether they think those words were said or not, it's the actions.

MR KEIM: Yes. We say - we say it's not the fault of the defence that the Crown case as to the manner in which the death occurred, and it's not the matter - not the fault of the Crown, it's certainly not the fault of the defence, that the evidence points to a broad range of possibilities, some of which we know happened or some of which the jury can infer quite strongly happened, and then a further series of possibilities going right up to the second before the death occurred, and the Crown has to wrestle with all of those possibilities because they're open on the evidence, we say. We intend to rely, in our address, on all of the evidence, both of Sergeant Everist and that of Ms Spottiswood.

HER HONOUR: But not the evidence of Ms Brownlie?

MR KEIM: Not the evidence of Ms Brownlie, because it's just so awry with the technical evidence that it just simply couldn't have occurred …" (emphasis added)

[65]  I pause here to note that the position now taken on the appellant sits uncomfortably with the position reflected in this passage where it was asserted on the appellant's behalf that the defence would rely on the "broad range of possibilities" which the defence sought to rely upon, a state of affairs which it was acknowledged by the defence was neither the "fault" of the defence or of the Crown.  The stance taken by the defence was that it was for the Crown to "wrestle with" all of those "possibilities".

[66]  The exchange continued:

"MR KEIM: … what we ask the jury to conclude from the technical evidence is that the events didn't occur in the way that the accused explained those events to Miss Brownlie.

HER HONOUR: Mmm.

MR KEIM: And, in our submissions, we would suggest a reason-----

HER HONOUR: That's different from saying what his state of mind was.

MR KEIM: Yes.

HER HONOUR: Well, it's certainly my view that the provocation case does not depend in any way on whether or not the alleged statement was made.

MR KEIM: Yes.

HER HONOUR: But it's not irrelevant if the jury think it was made, it's not irrelevant to provocation, but it - it's not critical to the defence.

MR KEIM: No.

HER HONOUR: So I won't tell them to put it out of their mind.

MR KEIM: No, but-----

HER HONOUR: But I probably should tell them that in the end it doesn't matter whether those words were said or not.

MR KEIM: Yes.

HER HONOUR: Maybe then they have to put it out of their mind. I am really wrestling with this.

MR KEIM: It depends on the Crown approach as well. If the Crown seek to prove that the there was a fight in the bathroom, then the Crown takes all of those implications with it, and just as we don't feel-----

HER HONOUR: I don't think they have set out to prove that, have they?

MR KEIM: No.

HER HONOUR: You haven't set out to prove that, Mr Vasta?

MR VASTA: No. We haven't ever set out to prove anything, but-----

HER HONOUR: Mmm - well, you have set out to prove your case beyond reasonable doubt.

MR VASTA: Yes.

HER HONOUR: That's your job.

MR VASTA: We haven't set out to prove a particular scenario, because it's - there are so many interpretations open, but if the jury in their fact-finding function come to the - come to the view that they accept beyond reasonable doubt that Mr Murray Pollock did go into the bathroom and did go out that bathroom door, then the defence of provocation is gone.

HER HONOUR: Bathroom window.

MR VASTA: Bathroom window, sorry, yes. The defence of provocation has gone.

HER HONOUR: Not necessarily.

MR VASTA: Well, on that scenario - in my submission, it could not be said that a jury properly instructed could say that if there is that break between an attack - especially if it's the person who has attacked, and who then hides in the bathroom and climbs out the bathroom window, that there isn't a break where the - the passion has time to cool.

HER HONOUR: Well, it all depends whether or not, as – whether or not you said that that was sufficient for the defendant to kill the deceased before his loss of self-control had abated and it may or may not, even if the window scenario, which seems unlikely on the objective evidence, is correct.

MR VASTA: I know your Honour says it seems unlikely, but there isn't any evidence that says one way or the other, and that's - the unfortunate thing, as the officer said, 'I can't say that he didn't do that.', because – 'not necessarily', does that mean that there would be marks or there would be stains on the curtain or anything-----

HER HONOUR: I don't know that I agree with you. That hand print on the wall-----

MR VASTA: Mmm.

HER HONOUR: -----that blood is the blood of the deceased.

MR VASTA: That's correct.

HER HONOUR: It looks very much like that hand print was put there as he's going out the - going out past it, and that's not consistent with going in the bathroom.

MR VASTA: Yes, but that presupposes that it's blood on the hand of the-----

HER HONOUR: Sure.

MR VASTA: -----deceased, and we don't know that.

HER HONOUR: We don't know who put their hand there. That's true.

MR VASTA: And that's the point, is that there are those-----

HER HONOUR: That's true.

MR VASTA: So many scenarios."

[67]  It is apparent from this exchange that the defence insisted upon an entitlement to rely on a broad range of possibilities.  Understandably in these circumstances, the defence did not then seek to insist that the Crown tie itself down to a particular factual hypothesis negativing provocation.  In the light of this exchange, it would have been difficult for the defence at trial sensibly to have insisted upon such a course.  When it is borne in mind that "[a] jury is entitled to refuse to accept the cases of the parties and 'work out for themselves a view of the case which did not exactly represent what either party said'",[19] it can be understood that the acquiescence of the defence at trial in the position taken by the Crown Prosecutor was a reasonable course, whereas the stance now being taken on the appellant's behalf seems to be distinctly unreasonable.

[68]  On the appellant's behalf, reliance is placed upon general statements in the authorities as to the duty of a Crown Prosecutor to conduct a trial fairly and honestly.[20]  Particular emphasis was placed on the proposition that:

"[a]n inappropriate and unfair attempt on the part of the Crown to persuade a jury to draw inferences of fact, and accept argumentative suggestions, that were not properly open on the evidence may result in a finding that there has been a miscarriage of justice."[21]

It was also emphasised that "any doubt about the nature of the Crown case must be removed at an early stage."[22] 

[69]  The appellant was, however, not able to refer the Court to any authority for the proposition that a Crown Prosecutor fails in his obligations of fairness to the accused by inviting a jury to accept a view of the evidence consistent with a rejection of a defence raised by the accused.  That there is no authority supporting this proposition is hardly surprising. 

[70]  The unreasonable and unrealistic nature of the appellant's criticisms in the circumstances of this case can be illustrated by reference to the point that the Crown Prosecutor proceeded, so far as the issue of provocation was concerned, to attempt to negative the defence by reference to the issues which the President of this Court (in reasons which both sides agreed to treat as a template at the retrial) regarded as fairly arguable on the evidence on the last occasion when the matter was before this Court.  To the extent that the arguments put by the Crown Prosecutor as to the effect of the evidence may have sought to emphasise some aspects of the evidence at the expense of competing evidence, he may have been overly ambitious (and thus afforded counsel for the appellant the opportunity to take forensic advantage of any overreaching) but it is too strong to suggest to this Court that the Crown Prosecutor's address was unfair or dishonest in the light of the exchange to which I have referred and the absence of any complaint by the appellant's counsel to the learned trial judge about the terms of the Crown Prosecutor's address.  In my respectful opinion, such a suggestion is not justified. 

[71]  The appellant complained that the Crown Prosecutor invited the jury to draw inferences of fact inconsistent with the evidence or the weight of the evidence in respect of each of the seven propositions under consideration.  But it is apparent from the transcript that the Crown Prosecutor acknowledged that competing inferences might be open and that the jury might prefer the evidence which supported an inference in favour of the appellant.  Once again, these complaints were also not raised at trial.  To the extent that the Crown Prosecutor's arguments may not have been compelling, that does not mean that they were advanced dishonestly or unfairly to the appellant.  I am unable to accept that the Crown Prosecutor's address to the jury was apt to impair a fair prospect of an acquittal. 

[72]  A further specific example of prosecutorial unfairness argued by the appellant concerned the prosecutor's reliance upon the appellant's threats to kill his father.  The appellant argues that the prosecutor disavowed any intention to rely upon those threats.  But in truth, the prosecutor made no such disavowal.  That this is so is apparent from the transcript.

[73]  Next, the appellant argues that the prosecutor misstated the effect of Ms Bray's evidence.  In this regard, the prosecutor said:

"Two things the Crown would look at there. Firstly, if the way in which the night's events were unfolding and if, looking back at Megan Bray's words, that, 'He wants you to fight him. He wants you to fight him.', if those - if that is really what is occurring, then the father coming in to the room, such as that, is really just another step in this process. It's, as I say, the slow boil. It starts as soon as he came home and it's been going for - what, from 2.30 all the way through, 5.30 when these people leave, so it's been going on for three hours and it just keeps going and going and going. If you put the water under a flame that's of a certain heat, [it] will boil, it will just take a little bit more time, and that's what's happened here."

[74]  On the following day the prosecutor corrected himself.  He said:

"The other thing I just wanted [to] clarify, when I was talking about Megan Bray's words at the end where she said, 'He wants to fight you. Don't.', you know, 'You have a choice.', those sorts of words, the fact that Megan Bray says, 'He wants to fight you.', I should say to you it isn't evidence of the fact that he wanted to fight, it's simply evidence that she said that so that you can judge what Murray's Pollock [sic] reaction to that was.

I used it in this form, that when you look at all the evidence of how Andrew Pollock behaved that night, that what she said may be a fair summary. But that's for you to decide. Whether he was looking for a fight or what he was doing, Megan Bray can't give evidence of that, because that's a matter of fact for you.

Whether Megan Bray or Lindsay Brownlie or Graham Pollock, what they say, the only thing that really matters is what they say they heard, they saw, and the sort of intonation in which things that they heard were said. So they can say, yes, it was said in an angry voice or he appeared angry, because that's an observation. But how they felt about it and what their interpretation is not, as it were, evidence. Okay.

So I just want to make that clear, just in case you thought that what I was saying about Megan Bray saying that he wanted a fight was - well, there's evidence. No, there's not. That's her summary which I have latched on to. Okay. So hopefully that's cleared up."

[75]  Accordingly, I reject the appellant's arguments advanced under this heading.

Other aspects of the conduct of the trial

[76]  It is said by the appellant that the progress of the trial was disrupted by a number of occurrences which may have hampered the ability of counsel for the defence to maintain the focus of the jury on the evidence adduced by the defence in cross-examination of the Crown's witnesses and on the evidence going to the defence of provocation.  That there were some substantial disruptions is clear in that time was lost while argument as to the admissibility of evidence proceeded over two and a half days in the absence of the jury.  But arguments about the admissibility of evidence in the absence of the jury are not unusual aspects of a criminal trial:  they regularly occur without throwing doubt on the ability of the jury to maintain an understanding of the evidence.  There were, it is true, some other disruptions which might better have been avoided but they were not such as to put at risk the jury's grasp of the evidence.

[77]  Counsel for the defence made no application to have the jury discharged as a result of these disruptions.  Further, the disruptions which occurred were not such as to suggest that the jury was deflected from their task.  In this regard, the jury sought redirections from the trial judge which indicated that they were conscientiously attending to their duty.  And both counsel and the learned trial judge reminded the jury of the evidence going to the issue of provocation in their final addresses and summing-up respectively. 

[78]  Most importantly, however, the issues for the jury in this trial were not complex.  The killing was admitted.  That the killing was unlawful was not disputed.  That the killing occurred as a result of the appellant striking the deceased on the head with a heavy rock was not disputed.  The appellant did not give or call evidence.  This was not, for example, a case where the jury were obliged to consider evidence from the accused as to his state of mind.  Nor was it a case where the accused sought to rely upon psychiatric evidence in support of his defence.  Nor was it a case where there was a significant conflict of oral testimony.  In fact, there was little dispute in relation to the evidence of the witnesses called by the Crown.

[79]  In these circumstances I am unable to accept that the appellant was prejudiced by the disruptions to the course of the trial. 

[80]  Next, the appellant argues that the evidence of Graham Pollock of the appellant's threats to kill his daughter because she looked like the deceased was "extremely unreliable evidence severely prejudicial to the appellant's case on provocation".  The learned trial judge directed the jury to ignore that evidence.  The Court should assume, in the absence of reason to conclude otherwise, that the jury heard and heeded the learned trial judge's direction.[23]  The argument for the appellant proceeded on the assumption that the jury may not have acted in accordance with the trial judge's directions.  As McHugh J said in Gilbert v The Queen:[24]   "… the fundamental assumption of the criminal jury trial requires us to proceed on the basis that the jury acted … in accordance with the trial judge's directions …"

[81]  This observation is also relevant to the appellant's next argument, which was that the learned trial judge misstated the evidence.  The learned trial judge had said:

"Megan [Bray] gave evidence that she went outside to near the dam with Murray Pollock for a good half hour, and there they had a conversation where Murray alluded to the fact that his father, he said, had treated him with aggression. He told Megan Bray that he was angry and frustrated with Andrew, and she talked to him about having choices and he said he had to act in that way, he was preset, referring to the way his father had treated him."

[82]  On the following day, her Honour corrected herself.  She said:

"… I told you about some evidence about a conversation between Megan Bray and Murray Pollock at the dam. I apologise for that. That was completely a mistake on my part. There wasn't any such evidence, so please just ignore anything I said about any conversation between Megan Bray and Murray Pollock at the dam."

[83]  Next, the appellant argues that the learned trial judge misdirected the jury in relation to that aspect of s 304 of the Code concerned with the reactions of an ordinary person.  In particular, the appellant complains about her Honour's observation:  "So it's not quite a single, ordinary person, but it is an ordinary person."  This statement was made in the course of a response by the learned trial judge to a question from the jury:

"'[D]o we agree with defence if we can conceive of a single' - underlined – 'ordinary person who could lose control and act like Andrew, or must we consider the average of all ordinary persons of the same age et cetera and ask whether that artificially constructed average person could lose control and act like Andrew?'"

[84]  It is said that this statement was apt to mislead the jury into thinking that the yardstick was an average of all ordinary persons.  Reference to the context in which the statement the subject of complaint was made shows that this complaint is without substance.  Her Honour said:

"Okay, there are really two things I need to say to you about that. The first one might surprise you, but when you say 'do we agree with defence', the defence don't have to prove anything. It's not a question of weighing up prosecution and defence and see which one you agree with. Just remember the prosecution has to disprove provocation beyond reasonable doubt. It's not a question of agreeing with the defence or agreeing with the prosecution. The burden is on the prosecution to disprove provocation beyond reasonable doubt.

Now, is it a single, ordinary person, or is it the average of ordinary people? It's certainly not the average of ordinary people. It is - an ordinary person is one who has the minimum powers of self-control expected of an ordinary citizen. The person has got to be sober and not affected by drugs, but of the same age as the defendant. This ordinary person is expected to have ordinary human weaknesses and emotions common to all members of the community, and to have self-control at the same level as ordinary citizens. But it is a person who has the minimum powers of self-control expected of ordinary persons.

So it's not quite a single, ordinary person, but it is an ordinary person. It's not the average, but it's an ordinary person who has ordinary human weaknesses and the minimum powers of self-control expected of an ordinary citizen of the defendant's age.

And of course it's not would this ordinary person have acted in that way, but could. Could. Could an ordinary person, with the minimum powers of self-control of the defendant's age, have acted in this way."

[85]  It is also argued on the appellant's behalf that his counsel at trial also misstated the law relating to an ordinary person.  He had said:

"What sort of person is he? I use the masculine because the ordinary person for you to consider is an ordinary person of the same sex and age of Andrew Pollock at the time of this offence. Andrew Pollock was a single man, just 23 years of age. The law says this about the ordinary person: the ordinary person is not assumed to be a saint. He is expected to have the ordinary human weaknesses common to all members of the community and to have self-control at the same level as ordinary citizens of his age. The law recognises that an ordinary person can snap and do something he would never do under normal circumstances. An ordinary person is somebody who has the minimum powers of self-control expected of an ordinary citizen who is sober, not affected by drugs and of the same sex and age as Andrew Pollock was at that time.

There is a lot to digest in what I have just said. It is important that you understand that the standard is not set at an impossibly high level. The ordinary person is not a saint. We know that because the ordinary person can commit the serious crime of manslaughter, and you will remember that Andrew Pollock has pleaded to that serious crime. The ordinary person is not someone who never does anything wrong, who never gets into a scrape. The ordinary person has the minimum powers of self-control, that is minimal, not maximum, expected of an ordinary citizen and he has all the ordinary human weaknesses and emotions common to all members of the community."

[86]  Shortly afterwards, the appellant's counsel corrected himself.  He said:

"Ladies and gentlemen, before I go on, I just wish to indicate that in stating the characteristics of the ordinary person and in saying that it - an ordinary person is an ordinary person of the same age and sex as in this case Andrew Pollock was at the time, I was in error in terms of the law in stating that it was - that the sex of the person was a - of any relevance whatsoever.

So what it is important for you when you think about the ordinary person and apply that concept of the ordinary person to the facts of this case, what you need to think about is an ordinary 23 year old. It doesn't matter whether the 23 year old is a young man or a young woman. It's an ordinary 23 year old.

And in that context, you don't have to be a modern research neurologist to know that 23 year olds of either gender are not the groups in the community that display the greatest self-control, especially in circumstances where they are placed under emotional pressure or subjected to physical oppression from another.

Each of you will be able to draw on your own experience in thinking about this matter. Some of you are younger than others and you may be able to deal with this question by thinking about many of your colleagues and acquaintances. Some of you have been 23 year olds at some stage in the past. You may be able to draw upon what you were like, as well as your friends and acquaintances at that time. It may be you thinking about what you were and your friends and acquaintances were like at that time that provide the best insights into the self-control of an ordinary person who is 23 years of age.

No doubt many of you said and have said, 'I can't believe the things I did at that age.' This may help you in considering whether a person who has just turned 23, an ordinary person of that age, is quite as self-controlled when faced with provocation as ordinary persons who have had more time to mature and grow up and gain experience.

So, they're the things that you need to know about the ordinary person when you are considering whether the Crown has satisfied you beyond reasonable doubt that the ordinary person could not have lost control in the face of this provocation and acted like Andrew Pollock acted."

[87]  Finally under this heading, it should be noted that at no stage was it suggested by counsel for the appellant at trial that the matters of complaint discussed here, either individually or cumulatively, warranted the discharge of the jury.  That course may well have been taken for good forensic reasons.  Accordingly, the appellant should be regarded as bound by the conduct of his trial; but, in any event, the conduct of the appellant's counsel at trial can be taken objectively to be consistent with a sound appreciation that none of the blemishes to which I have referred were likely to have distracted the jury from the proper performance of their duty.

[88]  I am unable to accept that the complaints agitated under this heading cast doubt on the fairness of the trial or the integrity of the jury's verdict.

The reasonableness of the jury's verdict

[89]  On the appellant's behalf, it is argued that the jury could not reasonably have rejected the defence of provocation on all the evidence in the light of the evidence supporting that defence.  The appellant argues that the evidence supports the following hypothesis which is said to be consistent with the availability of the partial defence of provocation:  the deceased left his room, went to the appellant's room and attacked the appellant there; in the course of this attack, the deceased suffered a wound from which he bled while still in the appellant's bedroom; the two men continued to fight as they went out the front door and into the garden; there the appellant killed the deceased with a rock; the appellant stayed in the garden for some time and was making moaning or groaning noises when the Harts opened the door and the appellant asked them to call the police; he stayed outside for a further 10 minutes before he went back into the house and called the police and told them that he had killed his father; the appellant then went into the shower.

[90]  It was argued on behalf of the appellant that the jury could not, acting reasonably, have regarded the version of the killing of the deceased given by the appellant to Ms Brownlie as accurate.  This was said to be because the appellant's version of events in this conversation was inconsistent with other evidence which made it unlikely that the deceased had fled from the appellant via the bathroom.  This evidence consisted of the bloody smear (being the appellant's blood) on the wall near the front door and the presence of the string of the appellant's necklace in the passageway to the front door, it being suggested that it must have come off in the struggle.  It was said that evidence of the appellant's blood in the bathroom was equivocal because he had showered after his father's death.  It was argued that the appellant's version to Ms Brownlie was likely to have been an unreliable attempt by the appellant to reconstruct the circumstances of his father's death from snippets of information he received after the event. 

[91]  It was for the jury to evaluate the strength of the argument that the appellant's version to Ms Brownlie was not reliable.  To that task they were expected to bring their experience, common sense and knowledge of human conduct.  There is no reason to think that they did not do so.  As a matter of human experience, statements made by a person against his or her interest are likely to be true and for that reason should be accorded significant weight by a tribunal of fact.  It was not unreasonable of the jury to treat the inculpatory aspects of the appellant's account to Ms Brownlie as reliable.  And the jury were entitled to be sceptical of the assertion, for it was no more than an assertion, that the appellant had little actual recollection at the time he spoke to Ms Brownlie.

[92]  It was, I think, reasonably open to the jury to accept that the appellant's account of the fatal incident in Ms Brownlie's evidence was generally reliable, although they may have treated those aspects of his account which tended to be self-serving with some reserve.  That there was forensic evidence that there had been a struggle in the appellant's bedroom did not render Ms Brownlie's account of the appellant's self-incriminatory version of events unreliable.  That the deceased's blood was discovered in the appellant's bedroom was consistent with Ms Brownlie's account of the appellant's version of events.  Ms Spottiswood's account was not irreconcilable with the appellant's account to Ms Brownlie.  Ms Spottiswood's account did not purport to give a blow-by-blow account of the manner in which the appellant and the deceased progressed from the appellant's bedroom to the place where the fatal blows were struck.  It was not necessarily inconsistent with the account that the appellant pursued the deceased out of the house through the bathroom.  The smear of the appellant's blood on the wall near the front door was consistent with the appellant having touched the wall on his return to the house after killing the deceased. 

[93]  The hypothesis, as formulated on the appellant's behalf in this Court, does not focus upon any particular acts or words of provocation which are said to have excited the appellant's loss of self-control.  There are, however, two possibilities which can be identified:  first, the deceased's initiating the fight after saying he would kill the appellant; and secondly, the deceased's taunting of the appellant after the appellant had armed himself with the rock.  On either possibility, the jury were entitled to regard the appellant's decision to wield the rock as something which did not occur "in the heat of passion caused by sudden provocation".  It was up to the jury to decide whether at that point the appellant acted in the grip of a temporary loss of self-control excited by provocative words or conduct by the deceased. 

[94]  In this regard, some time, and considerable activity, had elapsed between any provocation involved in the deceased's attack on the appellant in the appellant's bedroom, and the appellant's arming himself with the large rock and striking the deceased.  And the deceased's final taunt occurred after the appellant had armed himself with a very heavy rock with which to strike the deceased.  The jury may have taken the view that the final taunt, if it occurred, did not in fact excite the loss of control which led to the fatal blows. 

[95]  The jury were also entitled to conclude beyond reasonable doubt that any provocation, which the deceased may have offered to the appellant by way of an attack upon the appellant in the appellant's bedroom or in the ensuing struggle, was not such as would be capable of provoking an ordinary person to retaliate by taking up a seven kilogram rock and striking his father several strong blows on the head.  There was little, if any, coherent evidence of the excitation of a loss of control on the part of the appellant, but the jury could reasonably conclude that such excitation as there was could not have led an ordinary person to kill his father. 

[96]  In Stingel v The Queen,[25] the High Court approved the statement by Viscount Simon in Holmes v Director of Public Prosecutions[26] that the nature of the provocation must be such as to be capable of provoking an ordinary person to retaliate to the "… degree and method and continuance of violence which produces death".  The views of Barwick CJ and Gibbs J in Johnson v The Queen set out above are to similar effect.  On this basis, the jury could reasonably have concluded that they were satisfied beyond reasonable doubt that no provocation of such potency had occurred in this case.

Conclusion and orders

[97]  In my respectful opinion, none of the grounds of appeal are made out.

[98]  The appeal should be dismissed.

[99]  MUIR JA:  I agree with the reasons of Keane JA and with his proposed order.

[100]  FRASER JA:  I have had the advantage of reading Keane JA's reasons.  I agree with all that his Honour has written and that the appeal should be dismissed for those reasons.