R v Thompson[2022] QCA 214

SUPREME COURT OF QUEENSLAND

1. [1]
   THE COURT:  Mr Thompson appeals against his conviction after trial before a jury of one count of murder.  The ground of appeal is that the learned trial judge erred in directing the jury on the defence of provocation in that the jury should have been directed to consider the objective aspect of that defence with Mr Thompson’s subjective features in mind.

The facts

2. [2]
   At the commencement of the trial, Mr Thompson pleaded not guilty to murder, but guilty to manslaughter by reason of provocation.  The plea of guilty to manslaughter was not accepted by the prosecutor and the trial proceeded.
3. [3]
   There were mutual admissions made by the prosecution and on Mr Thompson’s behalf.  They included the following.  The deceased, Mr Knyvett, was born in 1956 and died on or about 15 November 2015.  The deceased was unlawfully killed by Mr Thompson.  (That latter admission limited the issues at the trial to whether the prosecution could prove beyond reasonable doubt that Mr Thompson intended to kill or cause grievous bodily harm to the deceased and, if so, whether Mr Thompson could prove on the balance of probabilities that the defence of provocation applied.)
4. [4]
   The jury heard Mr Thompson’s version of events when his electronically recorded interview with the police on 16 November 2015 was played during the trial.  It included the following.  On 15 November 2015 Mr Thompson was at the deceased’s house helping him do some work there in the kitchen.  As Mr Thompson bent over to pick up a tool, the deceased rubbed him on the bottom and said “I bet you haven’t been touched like this for a while”.  That type of conduct had happened before with the deceased touching him and rubbing him many times over 10 years.  He had been sexually abused by the deceased who had been in love with him.  He got dressed, left and went over to the neighbours, but then returned.  He had a beer or something first and the deceased then made some derogatory remark “just sort of, like, sort of homo, like, gay, sort of like joking, but it’s not ‘cos – not a joke ‘cos he’s actually sick like that”.  It took him a half an hour or 45 minutes before Mr Thompson decided to hit the deceased.  He grabbed a Jack Daniel’s bottle out of his room and hit the deceased on the head with it.  There was then a further blow across the top of the head.  Mr Thompson tied up the deceased’s ankles and wrists and placed him in the recovery position.  The deceased’s stomach was still moving.  Mr Thompson did not expect the deceased to die.  He just wanted to hurt the deceased.
5. [5]
   The cause of the deceased’s death was blood inhalation caused by the head injury.

Provocation

6. [6]
   The version of s 304(1) and (2) of the Criminal Code (Qld) that was in force at the date of the deceased’s death provided:

“(1) 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.

3. (2)
   Subsection (1) does not apply if the sudden provocation is based on words alone, other than in circumstances of a most extreme and exceptional character.”

7. [7]
   Section 304 of the Code had not at that stage been amended to provide expressly that s 304(1) did not apply (other than in circumstances of an exceptional character) if the sudden provocation were based on an unwanted sexual advance to the person: see s 10 of the Criminal Law Amendment Act 2017 (Qld) which commenced on 30 March 2017 and R v Thompson [2019] QCA 29 at [4].
8. [8]
   There was no issue between the parties that Chesterman JA’s summary of the elements of provocation set out in R v Miller [2009] 2 Qd R 86 at [31] applied in this trial:

“Provocation thus consists of four elements:

3. (1)
   The deceased must have engaged in provocative conduct;

3. (2)
   The provocation or provocative conduct could have caused an ordinary person to lose self-control and act as the accused did;

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

3. (4)
   The accused must have killed ‘suddenly’ whilst deprived of self-control; and before there was time (opportunity) to regain self-control.”

9. [9]
   The subjective features of Mr Thompson due to his claim that he was sexually abused by the deceased over a period of 10 years were relevant to the consideration of the second element of the defence for the reasons explained in the joint judgment of Brennan, Deane, Dawson and Gaudron JJ in Masciantonio v The Queen (1995) 183 CLR 58 at 67:

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

10. [10]
    If it were the case, that the jury accepted that Mr Thompson had been sexually abused by the deceased over the period of 10 years as he claimed, Mr Thompson would be in the category of persons with a special sensitivity to an unwanted sexual advance which affected the seriousness of the provocation for Mr Thompson: Green v The Queen (1997) 191 CLR 334 at 368-369.
11. [11]
    Mr Thompson’s case at trial was that the provocative conduct was the unwanted sexual advance with the accompanying words accumulated with the subsequent derogatory remark that Mr Thompson attributed to the deceased as “sort of homo, like, gay, sort of like joking” that provoked Mr Thompson in circumstances where he said he had been sexually abused for some 10 years by the deceased.  The defence had an alternative case for provocation based solely on the derogatory remark made by the deceased some 30 to 45 minutes before the fatal assault in the context of the history between the deceased and Mr Thompson.

The summing up

12. [12]
    During the opening remarks to the jury after empanelment, the trial judge provided each member of the jury with a handout that set out the elements of the offence of murder and outlined in general terms that manslaughter was an inherent alternative to the charge of murder.  A second handout was provided to the jury during the opening that specifically dealt with the defence of provocation and set out the terms of s 304(1) of the Code, the burden and standard of proof for proving that the defence applied, and the elements of provocation (the initial handout).  The elements were set out in abbreviated terms that to establish this defence, Mr Thompson must prove that, more probably than not:

“1. There was provocation by the person who was killed, being [the deceased];

2. … Mr Thompson was actually provoked; and

3. … Mr Thompson was still provoked when doing the act which caused the victim’s death.”

13. [13]
    Mr Thompson’s ground of appeal is primarily directed at the summing up, but also relies on the omission from the initial handout of any reference to the subjective effect of the provocative conduct on Mr Thompson and how it was necessary for the jury to consider whether provocation of that magnitude could have caused an ordinary person to lose self-control and act as Mr Thompson did.  The initial handout was not referred to at all by the trial judge in the summing up.  As the analysis below of the summing up shows, the trial judge directed the jury at length on provocation.  Any deficiency in the initial handout in setting out the conditions for provocation to apply was displaced by the extensive summing up on the issue of provocation.
14. [14]
    In dealing with the defence of provocation in the summing up, the trial judge explained that it had the following legal meaning:

“It consists of conduct which causes a loss of the power of self-control on the part of the [appellant], and which might have caused an ordinary person to lose the power of self-control and to act in the way in which the [appellant] did.”

15. [15]
    The trial judge identified three questions of fact involved in the defence of provocation:

“Was there any provocation by [the deceased], or … was the [appellant] actually provoked by [the deceased], and was the [appellant] acting whilst provoked when he hit [the deceased] with the Jack Daniels bottle?  Turning to the question of was there any provocation by [the deceased] towards the [appellant], the [appellant] says he that he was provoked by the unwanted sexual advance made by [the deceased] towards him.  An unwanted sexual advance … in this context means a sexual advance that is unwanted and involves only minor touching.  In the present case, it is said to be the touching of … the [appellant’s] bottom and the words spoken.”

16. [16]
    The trial judge dealt with the subjective aspect of the conduct:

“So you have to consider whether that conduct occurred.  You then have to assess the conduct of [the deceased] from the point of view of the [appellant].  Unless you understand the [appellant’s] personal circumstances and any history between the [appellant] and [the deceased], you may not understand how serious the conduct of [the deceased] was, from the [appellant’s] perspective.  You have heard evidence as to how [the deceased] and [the appellant] got to know each other, when [the appellant] originally worked for him and then that ultimately [the appellant] moved in to live in [the deceased’s] house in approximately 2005, when [the appellant] was 16.”

17. [17]
    The trial judge summed up the contentions of the appellant’s trial counsel that the jury would accept Mr Thompson’s statements in his interview to the effect that he suffered longstanding sexual abuse from the deceased and there was a build up over many years of a circular situation where Mr Thompson kept returning to stay with the deceased, because he had nowhere else to go, even though he knew what the deceased would do to him.
18. [18]
    The trial judge referred to the prosecution’s contention that Mr Thompson’s version of the relationship between the deceased and him and his allegations of sexual abuse on the part of the deceased against him were neither reliable nor credible.
19. [19]
    The trial judge summed up provocation to the jury on the basis they either accepted there had been sexual abuse or sexually inappropriate behaviour by the deceased towards the appellant over many years or, if they did not accept that had been the nature of the relationship, they still had to consider the defence of provocation, if they accepted that the sexual advance happened on the day the appellant killed the deceased with the comments attributed to the deceased by Mr Thompson.
20. [20]
    The trial judge then referred to the alternative case of Mr Thompson that, if the jury were not satisfied either that the event in the kitchen occurred or were satisfied that Mr Thompson had cooled down after he had gone next door, the jury would need to consider whether the derogatory remark made by the deceased to Mr Thompson on his return from the neighbour constituted provocation.  In respect of that alternative case, the trial judge directed the jury that the defence of provocation did not usually apply where provocation was based on words alone, but the defence can be available if the circumstances of the case were exceptional.  In that context, the trial judge then explained:

“To decide that, you have to consider all of the circumstances, including any history of prior sexual conduct between the [appellant] and [the deceased], and if you are satisfied it had occurred, the earlier unwanted sexual advance that day. Although in an ordinary case, mere words could not provoke a person to act with an intention to kill or do grievous bodily harm, were the circumstances in this case exceptional, in that these words used by [the deceased] towards the [appellant] could have caused an ordinary person to lose self-control and respond as the [appellant] did? The defence is available.”

21. [21]
    The trial judge then repeated the contention that had been put to them on behalf of Mr Thompson that, having regard to what Mr Thompson had described as the history between the deceased and himself, the words were exceptional in the circumstances of the case and that the prosecution’s contention was that the jury would not be so satisfied.  The trial judge then stated:

“As part of the consideration of provocation – and you may recall I’ve said that provocation consists of conduct which causes a loss of power of self-control on the part of the [appellant], and you have to consider that particularly in all of the circumstances and having regard to the [appellant]’s position, and which might have caused an ordinary person to lose the power of self-control and to act in the way in which the person did.”

22. [22]
    The above passage was a reference back to that part of the trial judge’s direction on provocation (quoted in [16] above) that the jury had to assess the conduct of the deceased from the point of view of Mr Thompson, in order to understand the seriousness of the conduct of the deceased from Mr Thompson’s perspective.
23. [23]
    The trial judge then directed the jury that they must consider “whether the alleged provocation was such that it was capable of causing an ordinary person to lose self-control and to form an intention to kill or do grievous bodily harm and to act upon that intention”.  Although in that passage the trial judge did not refer to the subjective features of Mr Thompson, the trial judge did refer to them in restating the question for the jury in the passage that then followed (the key passage):

“So you must ask yourself whether the alleged provocation could have caused an ordinary person of the [appellant’s] age to react with a similar loss of control.  That is, could [the deceased’s] unwanted sexual advances towards the [appellant], when he had been, according to the [appellant], making such advances since he had lived with him since he was 16, make an ordinary person lose self-control and act as you find the [appellant] did, by killing the deceased with the intention to cause his death or to cause at least grievous bodily harm?”

24. [24]
    Then followed a direction that, if the jury found that the deceased’s unwanted sexual advance towards Mr Thompson did occur on 15 November 2015, but did not find there was some history of sexual conduct between the deceased and Mr Thompson, they had to consider whether that conduct would have caused an ordinary person to lose his self-control and act as Mr Thompson did.
25. [25]
    The trial judge then proceeded to give directions in relation to the third and fourth elements of the defence of provocation to which reference is not necessary to deal with the ground of appeal.

26. [26]
    The trial judge provided the jury with a question trail after the trial judge had completed almost all the summing up.  The question on the question trail relevant to provocation was expressed as follows:

“Has the [appellant] satisfied you that it is more probable than not that when he inflicted the fatal wound upon [the deceased] that:

1. (a)
   there was provocation by [the deceased] towards [the appellant];

2. (b)
   that conduct of [the deceased] could have caused an ordinary person to lose his self control and act as he did in striking [the deceased] with a bottle, with an intent to cause death or grievous bodily harm;

3. (c)
   the conduct of [the deceased] on which the defendant relies on, caused [the appellant] to lose his self control; and

• The provocation was ‘sudden’ in that the [appellant] acted in the heat of passion unpremeditated and in a temporary loss of self control (remember that provocation is not necessarily excluded simply because there was an interval between the provocative conduct and the defendant’s emotional response to it);

4. (d)
   when [the appellant] killed [the deceased], he was deprived of his self control by [the deceased’s] conduct.”

27. [27]
    After handing out the question trail, the trial judge explained each of the questions to the jury and, in dealing with the question relevant to provocation, stated:

“So has the [appellant] satisfied you that it is more probable than not … that when he inflicted the fatal wound upon [the deceased] that there was provocation by [the deceased] towards Kyle Thompson, and that’s considered from the [appellant’s] perspective, as I’ve just described; that the conduct of [the deceased] could have caused an ordinary person to lose his self-control and act as he did in striking [the deceased] with a bottle with an intent to cause death or grievous bodily harm; that the conduct of [the deceased] on which the [appellant] relies caused Kyle Thompson to lose his self-control.”

28. [28]
    Where the trial judge referred to “that’s considered from the [appellant’s] perspective, as I’ve just described” it had the effect of incorporating the key passage into the trial judge’s explanation of this question in the question trail and reminding the jury of the earlier directions.

Was there an error in the directions on the second element?

29. [29]
    The summing up on provocation was complicated by the alternative scenarios that the directions had to accommodate.  There were two alternative cases of provocative conduct and each alternative had to be considered on two bases: either the jury accepted there was a history of sexual abuse by the deceased to Mr Thompson over the period of 10 years; or the jury did not accept that history.  The subjective features were relevant only if the jury proceeded on the basis that there was the history of sexual abuse that Mr Thompson referred to in his interview.
30. [30]
    Reading the summing up of the trial judge on provocation as a whole, and particularly having regard to the key passage in conjunction with that part of the direction quoted in [15] above, the trial judge made it clear to the jury that, if they accepted that there was a history of sexual abuse from the deceased towards Mr Thompson over a period of 10 years, that affected the seriousness of the provocative conduct experienced by Mr Thompson.  The trial judge also made it clear that the question they had to answer was whether provocative conduct of that seriousness could have caused an ordinary person to lose self-control and act as Mr Thompson did.  Even though the question trail did not refer to the relevance of the subjective feature of the sexual abuse directed by the deceased to Mr Thompson to the issue of provocation, the explanation given by the trial judge of the question on provocation in the question trail linked the question back to the directions given on provocation in the summing up.
31. [31]
    The appellant has not shown error on the part of the trial judge in the directions given on the second element of the defence of provocation.

Order

32. [32]
    It follows that the appeal must be dismissed.