R v Robbins[2023] QCA 18

SUPREME COURT OF QUEENSLAND

1. [1]
   MORRISON JA:  I agree with the reasons of Bond JA and the order his Honour proposes.
2. [2]
   BOND JA:  The appellant appeals from his conviction for the murder of his brother, Greg.
3. [3]
   Two grounds of appeal were raised by his notice of appeal, but the first ground was abandoned at the outset of the appeal.  The only ground pursued was that the trial judge erred in not directing the jury in relation to the partial defence of killing for preservation in an abusive domestic relationship.
4. [4]
   The partial defence referred to in the ground of appeal is that stated in s 304B of the Criminal Code, which is in these terms:

“304B Killing for preservation in an abusive domestic relationship

3. (1)
   A person who unlawfully kills another (the deceased) under circumstances that, but for the provisions of this section, would constitute murder, is guilty of manslaughter only, if—

1. (a)
   the deceased has committed acts of serious domestic violence against the person in the course of an abusive domestic relationship; and

2. (b)
   the person believes that it is necessary for the person’s preservation from death or grievous bodily harm to do the act or make the omission that causes the death; and

3. (c)
   the person has reasonable grounds for the belief having regard to the abusive domestic relationship and all the circumstances of the case.

2. (2)
   An abusive domestic relationship is a domestic relationship existing between 2 persons in which there is a history of acts of serious domestic violence committed by either person against the other.

3. (3)
   A history of acts of serious domestic violence may include acts that appear minor or trivial when considered in isolation.

4. (4)
   Subsection (1) may apply even if the act or omission causing the death (the response) was done or made in response to a particular act of domestic violence committed by the deceased that would not, if the history of acts of serious domestic violence were disregarded, warrant the response.

5. (5)
   Subsection (1)(a) may apply even if the person has sometimes committed acts of domestic violence in the relationship.

6. (6)
   For subsection (1)(c), without limiting the circumstances to which regard may be had for the purposes of the subsection, those circumstances include acts of the deceased that were not acts of domestic violence.

7. (7)
   In this section—

domestic violence see the Domestic and Family Violence Protection Act 2012, section 8.”

5. [5]
   The question whether the trial judge should give a direction in relation to s 304B was raised for the first time after the evidence had closed and shortly before closing addresses commenced.  Having heard submissions from counsel, the trial judge ruled that, as a matter of law, there was no evidence of an “abusive domestic relationship” between the appellant and his brother and declined to make any such direction.
6. [6]
   The appellant contends that –

   1. (a)
      it was an error of law to take away that partial defence from the consideration of the jury;
   2. (b)
      the failure to direct the jury as to the possible application of the partial defence gave rise to a miscarriage of justice; and
   3. (c)
      in the circumstances the verdict of guilty should be quashed and a retrial ordered.
7. [7]
   The Crown does not argue for the application of the proviso, in the event that this Court was persuaded of the existence of a miscarriage of justice.
8. [8]
   The result is that the question on which this appeal turns is whether, contrary to the view taken by the trial judge, the partial defence under s 304B was one which fairly arose on the evidence.  That turned on whether it was fairly open on the evidence to contend that the relationship between the two brothers met the definition of “abusive domestic relationship”.
9. [9]
   For reasons which follow, I conclude that the partial defence was not one which fairly arose on the evidence.  The failure to direct the jury as to the possible application of s 304B did not give rise to a miscarriage of justice.
10. [10]
    It is necessary, first, to outline the events which occurred leading up to Greg’s death; second, to identify the evidence the appellant suggested had met the evidentiary onus of raising the partial defence; and, finally, to explain my conclusion that the evidence failed to meet that onus.

The events of the night of 12 June 2019

11. [11]
    In May 2019, the appellant (aged 57) had moved to Buderim to live with his fiancée, Sally.  They were to be married a few weeks later on 15 June 2019.
12. [12]
    In anticipation of the wedding, the appellant’s daughter Annie flew up from Victoria on 11 June 2019 and the appellant’s elder brother Greg (aged 61) and his partner Karen flew in from Western Australia on 12 June 2019.  All three were planning to stay with the appellant and Sally at their unit.
13. [13]
    The appellant and Annie picked up Greg and Karen from the airport and the four of them arrived at the unit at about 3.00 pm.  Sally arrived home later.
14. [14]
    The five of them had dinner together in the kitchen and later retired to the outside patio behind the kitchen.  At least the appellant and Greg had been drinking.
15. [15]
    During the course of the evening a serious argument broke out between the two brothers.  Greg took offence at the appellant giving him advice about mending his relationship with his daughter and the appellant took offence at a remark Greg made about their mother when she was on her death bed.
16. [16]
    Whatever was the immediate cause, the steps by which the argument escalated included the following:

    1. (a)
       The appellant called Greg a pig and Greg told the appellant to “get fucked”.
    2. (b)
       Greg asked the appellant if he wanted to “take this outside” and the appellant refused.
    3. (c)
       The appellant repeatedly told Greg to leave, but he just sat there, sometimes telling the appellant to “fuck off”.
    4. (d)
       The appellant verbally abused Greg, including by telling him that he hated him and the family hated him.
    5. (e)
       Sally, Annie and Karen made failed attempts to calm the two men.
    6. (f)
       At one stage the appellant threw either a cask or a glass of wine in Greg’s direction and crushed some cigarettes in frustration.
    7. (g)
       At another stage Greg enquired of Sally “Are you really going to marry this cunt” and she responded that if he continued behaving like this she wasn’t going to marry him.
    8. (h)
       The appellant went inside, picked up Greg and Karen’s bags and took them outside, and then came back to the door to tell Greg and Karen that their bags were packed and waiting for them at the front of the unit and they should “fuck off”.
    9. (i)
       Greg and Karen decided to leave and went to the front of the unit to where their bags were waiting.
    10. (j)
        The appellant followed and there was a further verbal exchange in which the appellant told Greg to “fuck off” and made other verbally abusive statements.  He also said “Get out. I never want to see you again. How could you do this to me”, seemingly blaming Greg for Sally’s stated attitude about marrying him.
17. [17]
    There followed a physical confrontation between the two which involved Greg throwing punches and the appellant throwing punches back.  During the struggle, the appellant grabbed a knife and used it to stab Greg seven times.  Annie called triple-zero and the police and ambulance attended.  Greg died in hospital in the early hours of the following morning while in surgery.
18. [18]
    The jury was instructed on self-defence, compulsion and provocation but nevertheless convicted the appellant of murder.

The evidence said to discharge the evidentiary onus of raising the partial defence

19. [19]
    Evidence from Annie and from Karen did not support a conclusion of an existing abusive relationship between the two brothers.  However, the question whether the operation of the partial defence was fairly raised on the evidence such that it should be left to the jury must be determined on the version of events most favourable to the accused that is suggested by the evidence.^[1]  The evidence on which the appellant relies in this regard comes from his own version of events as told to police and when giving evidence at the trial.
20. [20]
    As to the former, an audio-visual recording from the camera worn by police who attended immediately after the stabbing was played to the jury.  Amongst other things, the recording revealed the following interactions between police and the appellant:

    1. (a)
       Police observed to the appellant that he appeared unsteady on his feet and asked if he had been drinking.  He acknowledged that “we’ve all been drinking” and “it’s just been the usual family fuckin’ shit fight, yes?”^[2]
    2. (b)
       After police told him that he was under arrest, he commented that he was supposed to be getting married and that “And he's [Greg] always been the fuckin' asshole in the family.”^[3]
    3. (c)
       Police had asked the appellant whether he was responsible for the injuries to his brother.  The appellant eventually responded that they had had an argument just before; had been drinking way too much; that “[Greg] lied and threatened my fiancée. Fuck him, pick him up to go from the fuckin hospital, go for my fuckin' wedding on Saturday, and that cunt just turned into a complete fuckin' psycho that he usually fuckin' does. Fuckin' asshole.”  Shortly after that remark he commented to police “… it’s just, fuckin’ shit fight, mate. Fuckin’, there’s not much else I can say about it …”.
21. [21]
    As mentioned, the appellant gave evidence at his trial.  During his evidence in chief, he described these three occasions in which he witnessed Greg assaulting their father:

    1. (a)
       In around the mid-70’s he had witnessed Greg and his father having an argument in which his father was telling Greg off for wrecking his car.  The argument between Greg and his father ended up in a physical altercation in which they exchanged blows and Greg knocked his father to the ground.
    2. (b)
       About five or six years later the appellant was living with his parents and Greg was not.  The appellant witnessed Greg arguing with his father and again saw Greg assaulting his father.
    3. (c)
       In 2010 or 2011 his father had lung cancer, was going through chemotherapy and was finding it hard to eat because he found it hard to swallow properly. The appellant was present when Greg, who had been drinking, grabbed his father by the pyjama shirt, lifted his finger up and said “You’ll do what you’re fucking told”.
22. [22]
    The following aspects of his cross-examination also shed light on his relationship with his brother.
23. [23]
    He said that when Greg came towards him throwing punches, he (the appellant) “would have been” scared because “I know what Greg was like … when he lost it”.
24. [24]
    His attention was then drawn to the three occasions he had referred to in his evidence in chief concerning interactions between Greg and their father.  He said “they were the ones that I was actually present for that I witnessed”.  There followed this exchange:

“All right. Well, you can’t tell us about much else, can you? In fact, there’d been other family arguments where you’d been yelling at him previously? --- Myself?

Yes? --- Are you referring to out the back at my place?

No. Prior to June 2019, you and Greg had been out arguing in the past? --- Yeah, we’ve had our moments for sure.

That’s right. So an argument - - -? --- Yep.

- - - initially, that night, wasn’t that unusual, was it? --- Yeah, I was – I was never that verbally abusive towards Greg before. He – he - - -

You were never been in such a rage before, were you, Mr Robbins? --- He – he – he was quite abusive towards us, like, when we started verbally.

Who’s us? --- Mys – myself – in front myself, my father and my brother.”

25. [25]
    Later in the cross-examination after he had been taken through the circumstances of the physical altercation which led to his stabbing Greg, the following exchange occurred:

“All right. Now, one of the first things that you say to the police officer is, “We’ve all been drinking. It’s just been the usual fucking family shit-fight”?---Correct.

Okay. Why did you say that?---That would be in reference to typical of many of the family gatherings that Greg attended.

All right?--- [indistinct] as far as not antagonising Greg to the point of where he would come and hit me?---

Right?---As I was growing up, a lot of that very early on.”

26. [26]
    Later, it was put to the appellant that on the night in question it was he who had been “the complete psycho”.  The appellant responded in these terms:

“I was upset, quite directly by Greg’s comments, and, look, with putting up with his behaviour in the past, I just thought, “No, you can piss off. Go. Get out. Don’t want you here.””

The evidence failed to discharge the evidentiary onus of raising the partial defence

27. [27]
    The present question is whether the evidence fairly raised a case that the relationship which existed between the appellant and Greg could be characterised as an “abusive domestic relationship” as defined.
28. [28]
    It was common ground on the appeal that because the appellant and Greg were brothers a domestic relationship existed between them within the meaning of that term as expressed in s 1 of the Criminal Code.  The question then became whether the evidence fairly raised a case that the relationship existing between them was one that there was a history of acts of serious domestic violence committed by either of them against the other.
29. [29]
    The first matter to note is that the noun “history” is used in the context of the phrase “a history of”, which, in turn, is used for the purpose of characterising an existing relationship.  The Oxford English Dictionary sets out this definition:

“11. With of. A record of past activity or behaviour of a particular type; a previous tendency to engage in a specified action repeatedly or habitually.

1917 N. O. Winter Hist. Northwest Ohio II. 833/2   The older Central Mennonite College of Bluffton has a history of useful service and a long list of alumni and former students.

1969 Life 9 May 89/1   He had a history of backing the decisions of his appointees.

1983 J. Gayton Uncommon Valor (film script) 17   The Vietnamese have a history of holding prisoners for long periods.

1993 Orange County (Calif.) Register (Nexis) 11 May d1   Whether Coach Larry Brown, who has a history of changing jobs, will return next season.

2007 F. P. Wilson Bloodline 881   He has a history of violence. Perhaps you have seen evidence of that.”

30. [30]
    If the relationship between the appellant and Greg was to be characterised as an abusive domestic relationship, the existing relationship between them would have to be one in which there had been a previous tendency by either to engage in acts of serious domestic violence repeatedly or habitually against the other.
31. [31]
    Attributing that meaning to the notion of “a history of acts of serious domestic violence” is also supported by the explanatory notes to the amendment bill in relation to the introduction of s 304B, which explain the reasons for the introduction of the section and use the phrase in that sense:

“Contemporary research on the actions of victims of abuse who kill their abusers, outlined in the Bond Report, demonstrates they are usually motivated by fear, desperation and a belief that there is no other viable way of escaping the danger. The option of leaving the relationship is often seen as an unrealistic option; research indicates that persons who suffer violence may perceive a lack of alternatives. The history of abuse in the relationship can allow a person who has suffered violence to read cues and note changes in the abuser’s behaviour which signal the onset of escalating violence. Decisive action for self-preservation can then be taken before the abuser is in a position to physically overpower them; that action carried out with no loss of self-control and without a deficiency in cognitive processes.

The use of violence against the abuser may be reasonable under the circumstances as the person who has suffered prolonged abuse perceives them to be, but to an ordinary person may be judged as unnecessary or excessive. Even though there may be a history of extensive abuse, because the immediate threat may be modest (viewed in isolation) the hyper vigilance typical of a battered person may result in a killing that is not proportionate to the threat (emphasis added).”

32. [32]
    The problem for the appellant’s argument is that the evidence did not fairly raise a case that the existing relationship between the appellant and Greg was one in which there had been previous tendency by either to engage in acts of serious domestic violence repeatedly or habitually against the other.
33. [33]
    The effect of that evidence can be summarised in this way.
34. [34]
    The appellant had a low opinion of Greg.  He thought Greg had always been the “fuckin’ asshole in the family”; that Greg usually turned into a “complete fuckin’ psycho”.  It seemed that he thought that it was typical of many of the family gatherings attended by Greg where they had been drinking that the gatherings could be described as the “usual family fuckin’ shit fight”.  He knew what Greg was like “when he lost it”.  He had put up with that behaviour in the past.
35. [35]
    Notably, however, there was almost no evidence expressed as to the basis for those opinions.  And that which there was shed no relevant light on the nature of the behaviour concerned or its impact on the appellant.
36. [36]
    Certainly, there was evidence of the three incidents with their father.  The first two were at least 40 years in the past, when the appellant would, necessarily, have been only a teenager.  The third one was when the appellant would have been in his late 40’s.  Even if this could arguably have amounted to “a history of serious domestic violence” in the sense of revealing repeated or habitual behaviour when it happened so long ago, which is doubtful, this evidence did not assist the appellant’s argument because it did not amount to domestic violence against the appellant.  I observe:

    1. (a)
       Domestic violence is defined in s 8 the Domestic and Family Violence Protection Act 2012 in these terms:

“(1) Domestic violence means behaviour by a person (the first person) towards another person (the second person) with whom the first person is in a relevant relationship that—

1. (a)
   is physically … abusive; or

2. (b)
   is emotionally or psychologically abusive; or

3. (c)
   is economically abusive; or

4. (d)
   is threatening; or

5. (e)
   is coercive; or

6. (f)
   in any other way controls or dominates the second person and causes the second person to fear for the second person’s safety or wellbeing or that of someone else.

2. (2)
   Without limiting subsection (1), domestic violence includes the following behaviour—

1. (a)
   causing personal injury to a person or threatening to do so;

…;

5. (e)
   threatening a person with the death or injury of the person, a child of the person, or someone else;

…;

…

3. (5)
   In this section—

coerce, a person, means compel or force a person to do, or refrain from doing, something.

…”

2. (b)
   The chapeau to s 8(1) requires that the subject conduct must be behaviour by the first person towards the second person, in this case behaviour by Greg towards the appellant.
3. (c)
   Section 8(1)(f) admits of the possibility that threats of death or injury to a third person are capable of amounting to domestic violence against the second person, if they amount to behaviour towards the second person which “controls or dominates” the second person and causes the second person to fear for the second person’s safety or wellbeing or that of the third person.  The appellant rightly did not seek to rely on this provision.
4. (d)
   A question of construction which arises is whether actual or threatened violence to a third person may be regarded as domestic violence against the second person without satisfying s 8(1)(f).
5. (e)
   The answer is that it could be, but only if the circumstances of the actual or threatened violence to the third person were such that –

   1. even though they constituted actual or threatened violence to a third person they nevertheless could be regarded as behaviour towards the second person (the chapeau); and
   2. the behaviour towards the second person could be characterised as emotionally or psychologically abusive to the second person (s 8(1)(b)); or threatening to the second person (s 8(1)(d)); or coercive of the second person (s 8(1)(e)).
6. (f)
   Without in any way seeking to be exhaustive of circumstances which might satisfy those requirements, one can readily imagine circumstances of threats to a child in the presence of the mother which could be regarded as behaviour towards the mother which was emotionally or psychologically abusive of the mother, threatening to her or coercive of her.
7. (g)
   The evidence of Greg’s behaviour towards his father in the present case did not fairly raise the proposition that it was behaviour towards the appellant, nor behaviour which was emotionally or psychologically abusive of him, threatening to him or coercive of him.  Nor did the appellant’s argument suggest that it was.

37. [37]
    Otherwise, the evidence was limited to the appellant’s suggestion that he was never that verbally abusive towards Greg before, but that Greg was quite abusive to their father, to him and to their other brother “when we started verbally”.  In context that is a reference to Greg being quite verbally abusive to their father and to the applicant and the other brother when they “started verbally” (whatever that phrase meant).
38. [38]
    But that evidence could not be regarded as fairly raising a case that the existing relationship between the appellant and Greg was one in which there had been a previous tendency by either to engage in acts of serious domestic violence repeatedly or habitually against the other, for two reasons.
39. [39]
    First, whilst one can readily accept that in certain circumstances oral statements repeatedly or habitually made by one person to another could amount to domestic abuse of the other if they amounted to behaviour which was emotionally or psychologically abusive of the other, threatening to the other or coercive of the other, for that conclusion to be reached there would have to be evidence which gave some colour to the statements and their impact on the person.  The bare statement that there was verbal abuse in the past does not do that.
40. [40]
    Second, the bare statement that there was verbal abuse in the past does not fairly raise a case of domestic abuse which could be characterised as “serious”.  As to this:

    1. (a)
       Section 304B was introduced by the Criminal Code (Abusive Domestic Relationship Defence and Another Matter) Amendment Act 2010.  The explanatory notes to the amendment bill make clear that the absence of any definition of the term “serious” was a matter of deliberative legislative choice, observing:

“The term “serious” is not defined and is a matter for the tribunal of fact to determine having regard to all the evidence before them. It is acknowledged that domestic violence of any nature is a serious issue for our community. The reference to “serious” is as a matter of emphasis to place the nature of the domestic violence, particularly at the initial threshold in subsection (1)(a), in the Supreme Court murder trial context; that is, in a context where the defence will operate as a protection to those persons whose acts would otherwise constitute murder.”

2. (b)
   In this case the bare statement that there was verbal abuse in the past provides no qualitative material which enables any such assessment to be made.

41. [41]
    The partial defence was not one which fairly arose on the evidence.  The trial judge was right not to direct the jury as to the possible application of s 304B.  No miscarriage of justice has been demonstrated.

Conclusion

42. [42]
    The appeal should be dismissed.
43. [43]
    CALLAGHAN J:  I agree with Bond JA.  The appeal should be dismissed.