R v Ngakyunkwokka[2023] QCA 85

SUPREME COURT OF QUEENSLAND

1. [1]
   MORRISON JA:  I agree with the reasons of Dalton JA.  In light of those reasons, the appropriate order is that the appeal be dismissed.
2. [2]
   DALTON JA:  The appellant is an indigenous man convicted of murder after a jury trial in October 2021.  There is no doubt he was responsible for the killing which occurred on 1 January 2020 at Aurukun when the appellant was 18 years old.  The deceased was Austin Woolla; he was 37 years old.  The defence case at trial was that there was no intention either to kill or do grievous bodily harm, and alternatively that the killing was in defence of another – s 273 of the Criminal Code 1899 (Qld).  There are three grounds of appeal: (1) the jury’s verdict is said to be unreasonable; (2) a miscarriage of justice is said to have resulted from the trial judge raising for the jury’s consideration whether or not the defence of provocation applied in circumstances where the defendant did not contend that it did, and (3) a miscarriage of justice is said to have resulted from the trial judge not answering a jury question.  My view is that the appeal should be dismissed.  I give my reasons, dealing with each of these grounds in turn.
3. [3]
   I note that none of the appeal grounds deal with the s 273 point; that is, the appellant accepted the jury verdict as to this.^[1]  It is interesting to note, however, that there are cases from Papua New Guinea (which has a Griffith Code), to the effect that the provisions of the Code as to self-defence do not apply where the trial is concerned with fighting in circumstances similar to those here.^[2]

Unreasonable Verdict

4. [4]
   There was a history of long-term conflict between the deceased’s extended family and the appellant’s extended family.  I will refer to the deceased’s extended family as the Woolla family, even though some members of his extended family have other surnames.  On the day of the killing there had been an argument between various members of these family groups.  The deceased’s brother (Leonard Woolla) had been injured when a bottle was broken over the back of his head by one of the appellant’s relatives.  Police attended; the injured man was taken to a medical clinic and the assailant into custody.

CCTV Footage

5. [5]
   Some hour or two later, fighting broke out between the two family groups on an area of short grass adjacent to the backyards of the appellant’s families’ homes.  It was in this fight that the appellant killed Austin Woolla.  The fight and the killing were captured by CCTV.^[3]  I will begin my review of the evidence by describing what the CCTV footage shows.  To the front left of the camera frame is a road or pathway.  In the direction of the viewer, this path leads towards the Woollas’ homes.  In the foreground of the camera frame, the path is intersected by a fenced laneway.  On the other side of the laneway, to the far right of the camera frame, are houses belonging to the appellant’s family.  There is a pipe and wire fence bounding the laneway and the backyards to these houses.  Towards the middle of the camera frame is an area of short grass, bisected by an open earthen drain.  The drain seems to be a continuation of the pathway back to the Woollas’ homes; it is roughly parallel to the backyard fences and roughly at 90 degrees to the laneway.
6. [6]
   The relevant footage first shows a crowd of little children hastening towards the backyards of the homes and moving into those yards and houses.  Then it shows a crowd of older children, mostly girls, headed from the direction of the Woollas’ houses towards the appellant’s families’ houses.  Then those people begin running towards the backyard fences.  A group of men enter the picture.  They are travelling from the Woollas’ houses towards the grassy area.  One of them, Neville Woolla, picks up rocks and throws them towards the people in the backyards.  He several times raises his arms above his head as though he is yelling at the people in those backyards and at one point appears to perform a small amount of dance directed at those people.
7. [7]
   At about 3:29:05 pm Austin Woolla enters the frame.  He is clearly carrying something around 50 or 60 centimetres in length.  It looks to be a substantial item, that is, more like a piece of fencing pipe than part of a broken fishing rod (see below).  While other members of the Woolla family and their supporters are on the area of short grass close to the backyards and interacting with people in the backyards, Austin Woolla stays on the far side of the drain.  At one stage he raises his arm, with the bar in it, and appears to be calling out towards the people in the backyards.  For the most part, however, he appears to pace about without interacting with the people in the backyards.  The evidence is that he was drunk (see below) and his movement is consistent with that.
8. [8]
   Neville Woolla goes over the drain to Austin Woolla and they appear to be conversing.  Ricky Pootchemunka (one of the appellant’s relations) jumps over the back fence of the house nearest the laneway, so as to be in the grassy area where the Woollas are.  He appears to be conversing with members of the Woolla family.  Apparently observing this, Neville and Austin Woolla walk towards the drain, then Austin Woolla runs ahead over the drainway and towards the discussion.  Neville Woolla follows behind him.  Austin Woolla goes to the very back of the group; he is furthest from the drain, near a backyard fence.  Almost immediately he reaches the group, Neville Woolla throws a rock (or clump of dirt) at Ricky Pootchemunka.  Once the rock is thrown, Ricky Pootchemunka runs away from the Woollas, towards the appellant’s family and supporters, who are situated in the backyards further from the camera.
9. [9]
   Almost immediately the rock is thrown, Sammy Bowenda jumps the fence from a backyard further from the camera; picks up a garden pick from where it is lying at the base of some trees, and runs aggressively towards the Woollas.  Apart from Austin Woolla, there are four Woolla men on the short grass near the backyards.  The four men begin running towards the drain as soon as they see Bowenda coming towards them.  Austin Woolla runs too, but he is somewhat behind them.
10. [10]
    Once the four men start running, the appellant leaps over a backyard fence and begins running behind Bowenda.  He is carrying a knife.  At this point Bowenda is on the offensive with the pick, chasing the four men, who are running to get away to the other side of the drain.  No-one is near Bowenda.  No-one is threatening Bowenda.  To the contrary, he is chasing the four men.  The appellant joins this chase, running behind Bowenda.
11. [11]
    Austin Woolla was always somewhat behind the other four members of his group, and although he starts running almost immediately they do, he is left behind because he gets caught up in a skirmish caused by Ricky Pootchemunka re-entering the fray.  Austin Woolla and Ricky Pootchemunka throw stones at each other.  Austin Woolla throws his stone first at 3:30:27:99 pm on the footage and Bowenda turns his head and shoulders back from his pursuit of the four men to watch this momentarily.  He spends about three seconds more chasing the four men across the drain.  At 3:30:30 pm the four men have escaped from the vicinity of the fight, across to the other side of the drain.  At 3:30:30:38 pm Bowenda has turned around and is standing in the drain, facing Austin Woolla, wielding the pick in an aggressive manner.  Austin Woolla cannot pass across the drain because of Bowenda’s position, nor can he run in the direction of the Woolla houses without navigating the fence-line or lines which block his way to his left.  At his back the appellant’s family and supporters are spilling over the backyard fences onto the short grass, and to his right is the appellant.
12. [12]
    Until this moment the appellant has been running in a line behind Bowenda, chasing the four men who have fled across the drain.  At about 3:30:30:65 pm on the footage, fractions of a second after Bowenda turns to face Austin Woolla, the appellant changes course.  Seeing that Bowenda has effectively trapped Austin Woolla, the appellant runs behind him, momentarily steadies himself and then, with his left hand on Austin Woolla’s left shoulder, inflicts the fatal knife wound: in above the deceased’s right hipbone, then upwards across his back so as to sever his aorta and vena cava.
13. [13]
    Through this entire time Sammy Bowenda remains the aggressor in the fight which is proceeding between him and Austin Woolla, moving closer to Austin Woolla, and brandishing the pick.  Just after the fatal blow has been inflicted, Sammy Bowenda drops the pick and punches Austin Woolla to his face.  Bowenda lands another punch as Austin Woolla is running away from him – 3:30:37 pm.  Bowenda then runs past Austin Woolla and back toward the backyards.  At this point Austin Woolla is still standing; he collapses to the ground a few seconds later.
14. [14]
    Immediately after stabbing Austin Woolla, the appellant runs back towards the backyards.  After two or three paces he takes a small jump or skip in the air and, as he does so, appears to look back at Austin Woolla.  He then runs off for the length of about one-and-a-half backyards before turning onto a path and looking back again.
15. [15]
    Counsel appearing for the appellant on the appeal described what could be seen on the video footage as chaotic.  I disagree.  Once one understands who the participants are, what goes on is fast-paced, but entirely logical and, the jury was entitled to think, on the part of Sammy Bowenda and the appellant, quick thinking, but deliberate.

Medical Evidence

16. [16]
    The pathologist who conducted the autopsy gave uncontroversial evidence.  He found a wound consistent with a knife wound which left a 2.9 centimetre long wound on the skin surface on the right side of the deceased’s back.  The wound continued through the abdominal cavity and had damaged the aorta and vena cava, which lie next to, and slightly in front of the spine.  The direction of this wound track was to the left, upwards, and slightly from the back of the body towards the front of the body.  The track was about 17 centimetres long – AB 401.  The pathologist said it would have required moderate force for a knife to penetrate the skin, but after that, only a mild force would have been necessary to continue the progress of the knife through the deeper tissues.  Toxicology showed alcohol in the deceased’s man’s blood, to use the doctor’s words, “in road traffic terms, 0.11”.  There was also the active metabolite of cannabis in the deceased man’s blood which showed that there had been ingestion of cannabis in the minutes to hours before the time of death – AB 403-404.

Oral Evidence

17. [17]
    As well as the evidence which I have already described, the jury had evidence from several witnesses to the fatal fight.  Some of their evidence was closely consistent with what was evident on the footage.  Other parts of the oral evidence were clearly not consistent with what was shown on the CCTV footage.  Having regard to the nature of the fight, it is unsurprising that many of the witnesses were related either to the appellant or to the deceased man.  The jury might well have thought that the evidence they gave was influenced by their family loyalties, either consciously or unconsciously.  Some of the witnesses spoke Wik as their first language and required an interpreter at trial.  The CCTV did not record any sound, but it is of relatively good quality and I think the jury would have been well‑entitled to regard it as accurate and informative and judge the credibility of the oral evidence against it.
18. [18]
    Leonard Woolla gave evidence that after he was assaulted with the bottle, he went home, but then returned to the appellant’s families’ houses with some others, including his brother Austin, and told his assailant that he should have a fight with Austin.  He had a hammer and a metal bar with him.  He also took an empty rum bottle to use as a weapon.  The assailant did not want to fight with anyone, but Leonard Woolla had a fight with him without weapons, just with his fists.  Then the police arrived.  He thought this was about 1.30 pm.  He had been drinking since 9.30 am that morning; he had drunk a bottle of rum which he shared with two others.  Austin Woolla was angry when he was told about Leonard Woolla’s being hit on the head.  Austin accompanied him because Leonard asked Austin to come back and fight with the assailant.  Austin was a good fighter.  He had been in lots of fights around Aurukun.  Austin had been drinking that day.
19. [19]
    Leonard Woolla Jnr said that after Leonard Snr had been hit he became angry and went to get his brother, Austin, and they all went back to the assailant’s address, “They were asking for a fair fight” – AB 343.  They went with at least two other men.  His evidence was that a fair fight meant a fist fight, “knuckle-for-knuckle” – AB 347.  If there were two fellows fighting in a fist fight, no relatives would join in, but if weapons were involved, others would join in, “because we don’t like to see our families get injured.  It gets us angry.” – AB 348.  He denied that Leonard Snr was calling for the assailant to come out and fight with Austin.
20. [20]
    He said Austin Woolla had fought in the streets many times and hurt people, but he said only with his knuckles, not with weapons.  He denied that when the deceased and those accompanying him arrived at the grassy area they had weapons with them – AB 353, but then said that he was 30 metres away and therefore he did not see whether Austin Woolla had a weapon.  For the same reason he said he could not hear if his uncle was yelling out once he arrived at the grassy area, but then somewhat contradicting that, said that the group, of which his deceased uncle was one, were yelling out for a fair fight – AB 353.  His evidence was that the appellant’s family was also “singing out” – AB 354.  The implication was that they were asking for a fight or singing out insults.
21. [21]
    A Mr Pamtoonda, who was related to the deceased man, gave evidence which was very much in accordance with what can be seen on the CCTV footage.  He said he witnessed the fight and that Sammy Bowenda had a gardening pick that he wanted to use on the deceased man, but the deceased man kept telling Bowenda to chuck the pick away and have a fair fight.  He noticed the appellant at the back of the appellant’s sister’s house and then he noticed that he jumped the fence and ran up to the deceased.  The witness thought that the appellant must have put his arm around the deceased and then “did something”.  After that the appellant took off.  He said that the appellant ran up to the deceased man from behind, and that when he did so Bowenda chucked the pick away.  He was cross-examined along the lines that on an earlier occasion he had not been able to recall such a thing; he agreed.
22. [22]
    The deceased’s niece, Ms Olyn Agie, gave evidence that she witnessed the fatal fight.  She was also related to the appellant, but she was closer to the deceased’s side of the family – AB 339.  As to the time before Neville Woolla threw the rock at Ricky Pootchemunka, she said that Austin Woolla was swearing and calling out insults, asking for a fight.  She said both sides were screaming at one another.  She said that the deceased was threatening the small girls who were in the backyards and was behaving in a “pretty violent” way.
23. [23]
    Olyn Agie said that she saw Sammy Bowenda when he was fighting with the deceased.  She said that Bowenda had “a steel picket”.^[4]  She said that Bowenda was blocking Austin Woolla from “walking back”.  She described that the appellant was angry and that when he came out from his older sister’s yard he had a long-bladed knife, she thought a pigging knife, which she said was about 40 centimetres long.  In cross-examination she particularly said that the knife was not a kitchen knife and repeated that the appellant smiled after he stabbed the deceased.
24. [24]
    She said of the appellant:

“… I seen him walk up and stick Uncle Waal Waal^[5] on his right side, in the back. The knife went straight in and straight back out.

Then what did he do?--- He turned around, walked back and smiled. His older brother asked him, ‘What did you do?’ He kept smiling.” – AB 334.

25. [25]
    She said of the deceased at this time, “He was drunk and, well, physical and violent”.  She thought that her uncle had no weapon, she specifically denied that he had a metal bar – AB 337.
26. [26]
    Dalton Agie, a relative of the deceased man, said that the deceased was acting as “a peacemaker” and that he was “trying to calm the situation down for both sides” – AB 384.  It is difficult to see that this oral evidence is entirely consistent with the CCTV footage.  Dalton Agie said that the deceased man was “diffusing the situation” and denied that he was violent or angry or threatening the small girls in the backyards.  However, he did allow that the deceased was “angry and upset”, and after more cross‑examination, accepted that he was yelling out violent threats – AB 388‑389.
27. [27]
    Dalton Agie’s evidence was that he saw Bowenda blocking the deceased man’s exit from the fray, and that the appellant walked up to the deceased without saying anything.  He was carrying a pigging knife, which he said was a long‑bladed knife with a bow in it, about four or five inches long.  He said he saw the appellant, “walk up, silent, stab the knife”.  He said that the deceased man was “distracted” by Bowenda with the garden picket, and the appellant, “came up from behind and then gave him a jab just under the left side to where his heart is.^[6]  And in an upwards motion that he jabbed it in and then released again. And then ran off.” – AB 386.  He said the deceased man was not aware of what was behind him.  Dalton Agie said that the deceased man had no weapon, and in particular did not have a bar or metal pole.
28. [28]
    Haylene Agie gave evidence that one of the deceased’s family threw a rock at one of the appellant’s family which caused Sammy Bowenda to run after the men associated with the deceased.  He was carrying a garden pick.  He dropped the pick and began fighting with his fists with the deceased man, although the deceased man did not throw any punches.  This is consistent with the CCTV, but only after the fatal stab.  The witness said after that, the appellant ran from his sister’s home towards the deceased.  This part of her evidence is out of sequence.  The witness said that she did not see the fatal blow, but she did see the appellant running away afterwards with a knife in his hand which he was twisting, swinging or twirling.
29. [29]
    She remembered that the deceased man was “trying to sort out things … in a calm way” – AB 417.  She did not think he was holding a weapon.  She did not think he was swearing and calling out insults and asking for a fight.  He was not threatening the small girls.  He was angry and upset but he was not calling out for people to fight.  “He was trying to control the situation” – AB 418.  She thought it was the people who were accompanying the deceased man who were making threats and calling out for a fight.
30. [30]
    Neville Woolla said that on the day of the fatal fight he had been drinking wine and rum since about 8.00 am.  He had fallen asleep, but woke up in time to go to the grassy area behind the appellant’s families’ houses.  He had been told what had happened to Leonard Woolla and that made him angry with the assailant.  Austin Woolla was angry when they went to the grassed area.  Austin was holding a metal rod.  Austin was calling out for Leonard Woolla’s assailant to come and fight him, but the assailant had already been taken into custody by the police.  Austin was drunk.  He was making threats to the people in the backyards of the appellant’s families’ houses.  The deceased was yelling threats to the boys and to the girls in these houses.  He was calling out for revenge for what happened to Leonard Woolla.  He was holding a fishing rod handle (not a metal bar).  He saw Austin chasing some young girls.  Austin was angry and drunk.  He did not see that Austin had a metal rod.^[7]
31. [31]
    Neville Woolla said he threw something at Ricky Pootchemunka because he was angry and he wanted to start a fight.  After that Sammy Bowenda and the appellant “gave chase”.  He saw the appellant carrying something and he took off.  Sammy Bowenda was carrying a steel picket.  Bowenda chased him with the picket.  After that Bowenda went back to the deceased man and was standing in front of him.
32. [32]
    The appellant gave evidence.  He did so through an interpreter.  Bowenda was his nephew and was 18 years old.  The deceased man “was a fighter and wanted to fight”.  Leonard Woolla was the same, he was always fighting on the streets and used weapons.  There was plenty of street fighting in Aurukun.  The Woolla family, “always picked on people” – AB 483.  His family fought with them and he had been hit with a shovel by one of the Woolla family in the chest in 2018.  At about that time, Bowenda had been injured in street fighting and taken to hospital.  The appellant accepted that he hated the deceased because they were always fighting and that his family and the Woolla family did not like each other.
33. [33]
    He got out of bed about noon on 1 January 2020 and went to his cousin’s house where he smoked marijuana.  He met up with Bowenda who told him there was a fight.  He was behind the fence at his sister’s house with Bowenda.  Austin and Leonard Woolla came to the track near the appellant’s families’ houses and were asking to fight him.  He told them to go.  He was scared because there was a mob of them and they threatened to come into the house.  They were drunk and looking for a fight.  This was before the police came and took the assailant away.
34. [34]
    Later he saw the girls come running back, and he could see Austin Woolla chasing them.  He was swearing and shouting and threatening the girls.  He was with his family and supporters.  The girls came into the yards of his families’ houses.  He was scared for himself and for the young children.  He could hear the deceased and his family and supporters saying they were going to come into the houses.  He picked up a knife.  It was a kitchen knife.  He and Ricky Pootchemunka were the only men at the houses.
35. [35]
    After the appellant picked up the kitchen knife he spoke to Ricky and asked him to tell the deceased and his family and supporters to go.  He saw Ricky talking to the deceased.  There was angry shouting and threats to come into the houses.  They were shouting for a fight.  He was scared.  He said they asked for fist fights but they wore gloves with spikes on them.  Some of them had weapons.  The deceased man had a bar, “The bar you make fence with” – AB 507, about 40 to 50 centimetres long.
36. [36]
    He saw Neville Woolla hit Ricky with a brick in the head.  He was scared and angry.  After Ricky was hit in the head, Sammy Bowenda chased them.  He was standing at the fence; he was scared because he thought Sammy might get hurt.  When he saw Sammy chase the men, he ran after Sammy.  All of that is consistent with the CCTV footage.  However, the appellant went on to say that he could see the deceased man running towards Sammy and that the deceased man had the bar in his hands.  He thought Sammy might get hurt.  Sammy was running towards the deceased man holding a pick.  The CCTV does not show the deceased running towards Sammy; it shows the deceased running to leave the area and being blocked by Sammy Bowenda.
37. [37]
    The appellant said that when he saw the deceased running towards Sammy with a bar he jumped the fence.  That was clearly not so.  The CCTV footage shows the appellant jumps the fence when Sammy Bowenda starts running towards the Woollas.
38. [38]
    The appellant swore that Austin Woolla was going to hit Sammy.  He was standing behind Austin and he saw Austin bring out his hand to hit Sammy.  He swore that Sammy was going to be hurt, because Austin would have hit him.  The appellant swore that he feared that the other Woollas would have come towards Sammy.  In those circumstances he “stabbed him and then I ran” – AB 518.
39. [39]
    He said he stabbed Austin Woolla because he was protecting Sammy and felt scared.  He did not want to hurt the deceased man, but he did not want to see Sammy get hurt.  He did not want to kill the deceased man.  When he stabbed the deceased man he was thinking of Sammy and how he might get hurt.  After he stabbed the deceased man he ran because he had seen the others running towards him.  He went back to his sister’s house.  He did not stay there because the Woolla family and supporters chased him into the bush.  At some stage in the bush he lost the knife.  (It was never recovered.)  One of his uncles arranged for him to meet up with the police during the night somewhere out of the community of Aurukun.

Intention

40. [40]
    The appellant was cross-examined as to intention.  This evidence was central to the defence case at trial, which was that the appellant had no intention to kill or do grievous bodily harm.  There was a focus on this aspect of the case on appeal, so I now review the evidence in detail.  As well as bearing on intent, much of this cross‑examination produced evidence which, even allowing for difficulties with interpretation, the jury was entitled to think was self‑serving and not in accordance with the CCTV footage.
41. [41]
    It was put to the appellant that he deliberately stabbed the deceased, to which he replied, “No”.  He was asked, “So you did not mean to stab him?”  The answer was, “Yes.  I didn’t mean to.”  Although it was not responsive, the appellant repeatedly said he only stabbed the deceased once, in answer to these type of questions.  He denied deliberately stabbing the deceased.  He denied moving the knife towards the deceased; this is plainly contrary to the CCTV.  But then, the appellant stood up in court and demonstrated the movement he made with the knife when he did stab the deceased.  At other times when being cross‑examined about intention, the appellant said, “I stabbed him because I was looking out for Sammy” – AB 524.
42. [42]
    The appellant denied that the knife was a pigging knife and said it was a kitchen knife with a blade about 15 or 16 centimetres long.  The appellant denied that he aimed the blow he made with the knife, and reiterated that he only wanted to stop the deceased hurting Sammy, in the course of which he said, “When – when I stabbed him, I didn’t really wanted to kill him or hurt him” – AB 547.  At one point the following exchange occurred:

“INTERPRETER: When – when I stabbed him, he must have backed himself backwards because Sammy was coming towards him.

MR BOYLE: Are you saying that he backed himself onto the knife?

INTERPRETER: It might have been that way. I can’t remember.” – AB 552.

43. [43]
    The CCTV shows the appellant running to a position behind the deceased, pausing, and then placing his left hand on the deceased’s shoulder as he made the incision described above.  It was put to the appellant that he grabbed the deceased with his left hand, and he accepted that he may have.  It was put to him that this was so he could push the knife into his back and the response was, “So as not for him to hit Sammy” – AB 599.  When cross-examined by reference to the CCTV footage, the appellant admitted that he stood still behind the deceased “about to hit” and that then the deceased stood still, “so I still hit” – AB 599.
44. [44]
    This exchange took place:

“MR BOYLE: Now, when you stabbed him, you meant to do him serious injury.

INTERPRETER: No, I didn’t mean – mean to.

…

MR BOYLE: You – the – the reason you stabbed him was so that you could assist Sammy?

INTERPRETER: No. I only did it to stop him from hurting Sammy.

…

MR BOYLE: But by stabbing him, he was trying – you were trying to injure him so he wouldn’t go ahead and hit Sammy?

INTERPRETER: When I was only doing it to protect Sammy. That is why I did it.

MR BOYLE: All right. But to stop him, you would have had to have hurt him?

INTERPRETER: When I stabbed him, I didn’t know it was going to be like that.

MR BOYLE: At the time you stabbed him, you knew it would cause him serious injury?

INTERPRETER: I don’t know.

MR BOYLE: Do you accept that stabbing someone in the back can cause serious injury?

INTERPRETER: Yes.

MR BOYLE: So you knew at the time you stabbed him, it could cause him serious injury?

INTERPRETER: No. When I stabbed him, I didn’t know it was going to happen that serious.

MR BOYLE: Did you think about how serious it might be at the time?

INTERPRETER: No. I was only thinking of Sammy getting hurt.

MR BOYLE: That is the only reason you stabbed him?

INTERPRETER: Yes. To stop him and to protect.” – AB 527-528.

45. [45]
    This state of mind was challenged having regard to the fact that he immediately withdrew the knife from the deceased man and then immediately ran away:

“MR BOYLE: Why did you run away after you stabbed the deceased?

INTERPRETER: They chased – chased me and that is why.

MR BOYLE: But when you ran away, Sammy was still in a fight with the deceased?

INTERPRETER: He didn’t know about that. He thought Sammy was gone behind him, but then noticed he’s back there.

MR BOYLE: You did not look back after you stabbed him?

INTERPRETER: Yes, because everybody came with their weapons.

MR BOYLE: If you were concerned about Sammy, you would see that he was away from the deceased?

INTERPRETER: Yes. Waal Waal was running towards him.” – AB 529.

46. [46]
    The CCTV does not show anyone running after the appellant following the stabbing.  It does not show Austin Woolla moving towards Sammy Bowenda.  It shows Bowenda punching Austin Woolla twice and Austin Woolla trying to move away from Bowenda.
47. [47]
    The following cross-examination also went to intention:

“MR BOYLE: The deceased was the slowest of his group in running away, is that correct?

INTERPRETER: Yes.

MR BOYLE: And you and Sammy trapped the deceased.

INTERPRETER: No.

MR BOYLE: Sammy was blocking him from running in the same direction as the others in his group.

INTERPRETER: No.” – AB 538.

48. [48]
    The jury was well entitled to think the CCTV footage showed just what the prosecutor put.  Also bearing on the defendant’s credit, was the following passage:

“INTERPRETER: Yeah, because they threatened to come into the yard and that is why he told Ricky. And then I followed Ricky and Ricky told them to go. And that was why Neville chucked the brick at Ricky. And then they gave chase.

MR BOYLE: When you say, ‘They gave chase’, who is they?

INTERPRETER: It was only Sammy that chased them, not – not a lot of the others.

MR BOYLE: Not a lot of - - -

HIS HONOUR: The others.

INTERPRETER: The others.

MR BOYLE: Did you jump the fence to chase them?

INTERPRETER: No. No.

MR BOYLE: Why? Why did you jump the fence, then?

INTERPRETER: That just because I see Sammy and I didn’t want him getting hurt.

MR BOYLE: When you jumped the fence, did it look like Sammy was in trouble?

INTERPRETER: Yeah, like he was getting hurt.

MR BOYLE: He was getting hurt?

INTERPRETER: Going to get hurt.

MR BOYLE: He was going to get hurt? At the time you jumped the fence, it looked like he was going to get hurt. Is that what you say?

INTERPRETER: Yes, like it was – Austin was going to hit him and that is why I jumped the fence.” – AB 544-545.

49. [49]
    The CCTV shows the appellant jumped the fence almost immediately Sammy Bowenda gave chase to the Woollas.  He joined in that chase, Bowenda was the aggressor, and the appellant’s actions were also aggressive, in support of Bowenda.  The same comment as to the appellant’s credit could be made about the following passage, even more so:

“HIS HONOUR: I’ve got it written down. At the time you jumped the fence, the Woolla group was running away – was running away from Sammy. Is that - - -

MR BOYLE: Yes, your Honour.

HIS HONOUR: If you could ask that question, the Woolla Group was running away. They were running away from Sammy.

INTERPRETER: And so he turned and then they ran. They came back and ran behind Sammy. And they were hitting him with bricks and that.

MR BOYLE: Hitting Sammy with bricks

INTERPRETER: They were chucking bricks at him.

MR BOYLE: Was that the time you jumped the fence?

INTERPRETER: Yes. When they were chucking, I then jumped.” – AB 546.

50. [50]
    It was put to the appellant that he did not have to stab the deceased in order to defend Sammy.  The response was that had he not stabbed the deceased, Sammy would have “gotten hurt and hit by the bar” – AB 568.  It was suggested to the appellant that he could have run in front of the deceased and used the knife to keep the deceased away from Sammy.  The appellant said that he could not have done that because at that time, the deceased’s friends and supporters were running at Sammy.  The CCTV shows they were not.
51. [51]
    Towards the end of the prosecutor’s cross-examination, the facts which the Crown relied upon to prove intention were put to the appellant in a very detailed, sequenced, way – AB 576ff.  It was put that the appellant had a knife, which may or may not have been hidden down the back of his pants; that he jumped the fence and ran to the deceased, and within seconds used the knife on the deceased.  That he positioned himself behind the deceased and was looking for an opportunity to stab him at a time when Bowenda was attacking the deceased.  It was put to the appellant that he did not stab the deceased in order to defend Sammy.  After the appellant stabbed the deceased he did not check to see if he was okay.  It was put to him that he did not care what had happened to the deceased.
52. [52]
    The prosecutor put to the appellant that, “In stabbing the deceased, you meant to kill him”, “or at least do him serious injury”.  The response was, “No, I didn’t mean to kill him” and in relation to the second question, the answer was initially “Yes,” but then, through the interpreter, “I didn’t mean to hurt him or kill him” – AB 603.  It was put to the appellant that he ran after Bowenda to assist Bowenda in attacking the Woollas; that Bowenda trapped the deceased away from the rest of his group, and at that point the appellant decided to join in the attack on the deceased.  This was denied.  It was also put that in stabbing the deceased the appellant was not defending Bowenda, but was in fact assisting Bowenda to attack the deceased.  This was denied.
53. [53]
    The appellant was asked in cross-examination whether he smiled, twirled the knife or skipped after stabbing the deceased, and he denied those things.  The appellant said that he jumped after stabbing the deceased because someone threw a brick at him – AB 601.

Submissions advanced as to Unreasonable Verdict

54. [54]
    Written submissions on behalf of the appellant said, “The Crown case was never seriously put on the basis of an intention to kill – and rightly so.  Rather it was put on a ‘shorthand’ basis of an intention to cause ‘serious injury’”.^[8]  That this is not so is demonstrated in the passages of cross-examination, above.  It is also perfectly clear from what the prosecutor says in his opening,^[9] and in his closing address^[10] that the Crown relied upon an intention to kill or do grievous bodily harm.
55. [55]
    That questions to the appellant, through an interpreter, referred to serious injury^[11] rather than grievous bodily harm, was immaterial in the overall scheme of the cross‑examination of the appellant.  Each time the defendant was asked whether or not he meant to cause serious injury to Austin Woolla he said that he did not.  In my view there was no need to ask any further questions at that point.  Had the defendant admitted that he did intend to cause serious injury to Austin Woolla, I think there would have been an obligation on the prosecutor to put more questions in line with the definition of grievous bodily harm.  However, if there was a denial of an intent to cause serious harm, that was sufficient to encompass a denial of an intent to cause grievous bodily harm.  An intention to kill was specifically put.  Further, as detailed above, all the factual matters the Crown relied upon as circumstantial evidence of intent were put to the appellant in an organised, clear, and highly disciplined cross‑examination.  In my view, the Crown case was properly put to the appellant.
56. [56]
    A further submission was made that the evidence did not permit the jury to reach a conclusion by inference that the appellant had a specific intention to cause grievous bodily harm.  It was said there was only a single stab.  Only moderate force was used to break the skin, and only mild force was used thereafter.  The fact that there were no contemporaneous statements by the appellant from which an intention could be inferred was relied upon.  It was said that the killing occurred in “a chaotic and dangerous situation”.^[12]
57. [57]
    The killing occurred in a dangerous situation, but as discussed above, it was not chaotic.  The jury was well entitled to think that the footage shows a deliberate and intentional attack by the appellant on the deceased man.  The appellant stopped behind the deceased man, out of the deceased man’s vision, when the deceased man was occupied with fighting off an attack from Bowenda; paused for a moment, and then deliberately moved forward, held the deceased man’s left shoulder in order to stab him in a very particular way which let the knife into his vital regions.  This might well have appeared to a jury acting reasonably not only as deliberate, but calculated to inflict grievous bodily harm or death.  The evidence was such that I can see no impediment at all to the jury being satisfied of this beyond reasonable doubt.
58. [58]
    It was further submitted that even disregarding the appellant’s sworn evidence, the Crown evidence was such that the jury must have had a reasonable doubt because hypotheses consistent with innocence could not be excluded, namely that the appellant behaved as he did in the moment without any purpose; that the appellant’s purpose was to cause bodily harm, or that the appellant was reckless as to the causing of permanent injury.  Again, the CCTV footage is well capable of providing a foundation for a reasonable jury’s view that the appellant in fact behaved deliberately with the intention either to cause death or grievous bodily harm, and that that was the only inference available from what they could see.
59. [59]
    There was also available to the jury two further bodies of evidence:

    1. (a)
       the history of the longstanding animosity between the appellant’s family and the Woollas; the history of violence inflicted by the Woollas upon the appellant and Bowenda in 2018; the violence which actually occurred that day between the appellant’s family and the Woollas, and the evidence from the appellant and from Olyn Agie, if the jury wished to act upon it, that the appellant was angry at the time of the stabbing and had consumed alcohol which may have inflamed his thinking, and
    2. (b)
       the evidence that the appellant skipped after having stabbed Austin Woolla and that he smiled and twirled the knife in his hand afterwards.
60. [60]
    This evidence was available to the jury, if they accepted it, to reinforce a conclusion to be had from the CCTV footage that the appellant intended to kill or do grievous bodily harm.  However, if the jury did not accept this evidence, or had doubts about its probative value, it was not necessary as a foundation for their verdict.

Provocation

61. [61]
    On day 2 of the trial the trial judge began a discussion as to the defendant’s case.  He said, “I haven’t particularly seen a basis for any issue of provocation”.  Defence counsel said that he was not relying upon it.  The trial judge explained that he had to put it “if there’s a basis, but the onus would be on your client to make that defence …”. (my underlining).  The trial judge said that he would welcome counsel’s submissions as to whether or not there was a basis for provocation in the evidence in due course.  Defence counsel said, “There’s probably a basis, your Honour, although tenuous and weak, on the footage alone and in the actions in the lead up to the fatal incident”.  Defence counsel said that he would not be addressing on it, but he understood the trial judge’s obligations.
62. [62]
    At the end of day 4 of the trial, while the appellant was still under cross-examination, the judge asked counsel about provocation again.  He said that he thought he was bound to leave provocation to the jury and defence counsel agreed – AB 556.
63. [63]
    In cross-examination the prosecutor asked the appellant, “When you stabbed him, were you angry at all?” – t 5-5 l 37.  The answer was no.  Later in the cross‑examination the appellant said he was angry at the time he jumped the fence, not because Ricky had been hit in the head (by the rock or clump of dirt), but because “I was there for Sammy”  – t 5-6 l 51, t 5-28 l 14.
64. [64]
    The matter was raised again after the appellant had finished giving evidence.  Defence counsel said that there were difficulties with the judge’s obligation to put the partial defence of provocation where the onus fell on the defendant.  He said that there was no direct evidence from the appellant that would support the defence, but went on to say, “But there is evidence from the case that would meet that onus, in my submission. And then the other major issue is whether there are exceptional circumstances. Depending on the nature of the provocation – the characterisation of the provocation …”.^[13]  (my underlining).  The trial judge said that he thought that there was a basis for provocation other than words alone, and he thought that was “a jury question”.  Defence counsel discussed the deceased’s throwing a rock towards Bowenda^[14] and the deceased running towards Bowenda armed with a weapon as conduct which might be classed as sudden provocation.  The prosecutor said that a provocation case “would be very thin, but it does potentially arise”.  The trial judge indicated that he did not intend to “blow very much wind into” the matter but that he would raise it with the jury.
65. [65]
    The defence case at trial was that either: (1) the appellant lacked an intention to kill or do grievous bodily harm at the time he stabbed the deceased, or (2) the appellant was acting in defence of Bowenda at the time he stabbed the deceased – s 273 of the Criminal Code.  Had the jury accepted either of these propositions, the verdict would have been one of acquittal.  Provocation was not part of the defence case.  It sat uneasily with both alternatives advanced by the defence because on the facts of this case, provocation, involving a loss of self-control and a deliberate act in train of that, was a different state of mind from acting with no intention to cause death or grievous bodily harm; acting recklessly as to whether or not death or grievous bodily harm was to be caused, and a decision to take a proportionate response to defend Bowenda.  Additionally, the appellant swore he was not angry with the deceased man when he stabbed him.  It was argued that leaving provocation to the jury undermined the appellant’s evidence, and weakened or destroyed the appellant’s arguments based on defence of another and based on lack of intention.
66. [66]
    However, these are not unique or new problems, and the law has been clear, at least from the case of R v Hopper,^[15] that if the facts at trial are such that the question of whether or not a killing was done under provocation fairly arises, then that must be explained to the jury, and the question of fact must be left for them.  This is not a rule which rests on the choice of defence counsel.  It is a duty on the part of the judge, so that the jury’s verdict can be made on a proper legal analysis of the facts:

“We do not assent to the suggestion that as the defence throughout the trial was accident, the judge was justified in not putting the question as to manslaughter.  Whatever the line of defence adopted by counsel at the trial of a prisoner, we are of opinion that it is for the judge to put such questions as appear to him properly to arise upon the evidence even although counsel may not have raised some question himself.  In this case it may be that the difficulty of presenting the alternative defences of accident and manslaughter may have actuated counsel in saying very little about manslaughter, but if we come to the conclusion, as we do, that there was some evidence – we say no more than that – upon which a question ought to have been left to the jury as to the crime being manslaughter only, we think that this verdict of murder cannot stand.

We desire to add further that we do not accept the argument addressed to us by counsel for the Crown, and relied upon by the judge in his summing-up, that because the appellant said that he was not angry at the time, that must be taken against him as negativing the proposition that the crime could be manslaughter.  In saying that he was not angry the appellant was trying to shelter himself behind the plea of accident, and it was open to the jury to say that the statement he made was not true.  Other views of the facts than those given by him in his evidence cannot be excluded.  In a Court of justice it is for the Court, with the assistance of the jury, to arrive at the true view of the facts without paying too much attention to whether a particular witness is called by one side or the other.” – 435. (my underlining).

67. [67]
    Hopper was followed in Bullard v The Queen:^[16]

“It has long been settled law that if on the evidence, whether of the prosecution or of the defence, there is any evidence of provocation fit to be left to a jury, and whether or not this issue has been specifically raised at the trial by counsel for the defence and whether or not the accused has said in terms that he was provoked, it is the duty of the judge, after a proper direction, to leave it open to the jury to return a verdict of manslaughter if they are not satisfied beyond reasonable doubt that the killing was unprovoked.  See such cases as Rex v Hopper and Kwaku Mensah v The King.” – p 642.

68. [68]
    The same issues arose in Mancini v Director of Public Prosecutions:

“Although the appellant’s case at trial was in substance that he had been compelled to use his weapon in necessary self-defence – a defence which, if it had been accepted by the jury, would have resulted in his complete acquittal – it was undoubtedly the duty of the judge, in summing up to the jury, to deal adequately with any other view of the facts which might reasonably arise out of the evidence given, and which would reduce the crime from murder to manslaughter.  The fact that a defending counsel does not stress an alternative case before the jury (which he may well feel it difficult to do without prejudicing the main defence) does not relieve the judge from the duty of directing the jury to consider the alternative, if there is material before the jury which would justify a direction that they should consider it. …”^[17]

69. [69]
    This dicta from Mancini was cited with approval in Bullard, p 643.
70. [70]
    Bullard and Mancini were followed in Van Den Hoek v The Queen:^[18]

“At the trial counsel for the applicant informed the learned trial judge that the only issues were intention and self-defence. The learned trial judge directed the jury that there was ‘nothing in the evidence in the present case to sustain a plea of provocation’. The applicant herself did not in her evidence suggest that she had lost her self-control. She did say that she was terrified and acted as she did to defend herself.

The question on which the learned members of the Court of Criminal Appeal disagreed was whether the learned trial judge erred in failing to direct the jury on the issue of provocation. Neither the fact that the applicant did not expressly say in evidence that she had been deprived of the power of self-control, nor the fact that counsel in effect told the learned trial judge that provocation was not an issue, absolved the learned trial judge from the necessity of leaving that issue to the jury if there was some evidence fit for its consideration. In Bullard v. The Queen [1957] AC 635, at p 642, Lord Tucker, delivering the reasons for the judgment of the Judicial Committee, said:

‘It has long been settled law that if on the evidence, whether of the prosecution or of the defence, there is any evidence of provocation fit to be left to a jury, and whether or not this issue has been specifically raised at the trial by counsel for the defence and whether or not the accused has said in terms that he was provoked, it is the duty of the judge, after a proper direction, to leave it open to the jury to return a verdict of manslaughter if they are not satisfied beyond reasonable doubt that the killing was unprovoked.’

That statement is amply supported by authority: see Mancini v Director of Public Prosecutions; Kwaku Mensah v The King; Lee Chun-Chuen v The Queen; Parker v The Queen; Da Costa v The Queen; Pemble v The Queen; Sreckovic v The Queen.” pp 161-162, footnotes omitted.  (my underlining).

71. [71]
    The case of Stingel v The Queen^[19] turned on a provision unique to the Tasmanian Criminal Code (s 160(3)), but is in all respects consistent with the above statements of law.  Stingel cited Thorpe v R:

“If there is no evidence on which a verdict of manslaughter can properly be found, it is the duty of the judge not to leave the question of manslaughter to the jury, but if there is evidence, then it is the duty of the judge to leave the question to the jury, notwithstanding that it has not been raised by the defence, and is inconsistent with the defence which is raised.”^[20]

72. [72]
    In Thorpe’s case the English Court of Appeal cited Hopper with approval, effectively holding:

“… although the defence did not raise the question of manslaughter, and although the defence of manslaughter would have been inconsistent with the defence which was in fact raised, the judge ought to have left the question of manslaughter to the jury.” – p 190.

73. [73]
    The appellant’s counsel attributed the origin of this rule to “fairness to an accused”.^[21]  In fact, as the above passages show, the origin of the obligation is not fairness to an accused, but the integrity of the decision making process.  Thus arguments to the effect that provocation ought not to have been left to the jury where that partial defence was inconsistent with the defence case are not only contrary to the authority, but contrary to the principle which underlies that authority.
74. [74]
    Another argument was advanced, that the rule under consideration must change because in 2011 the Queensland Parliament changed the onus of proof in relation to provocation relied upon in respect of a killing.^[22]  From the time of this change, it has been a matter for an accused to prove on the balance of probabilities that he was provoked in terms of s 304 of the Criminal Code.
75. [75]
    The rule in Hopper’s case comes from a time when the common law was that the defendant bore the onus of proof on provocation.  The rule pre‑dates Woolmington’s case^[23] in which the House of Lords established that on a murder trial the Crown bears the onus of excluding self-defence.^[24]  In R v Prince the Court of Criminal Appeal in England stated that the position established in Woolmington also applied to provocation.^[25]  In R v McPherson^[26] the English Court of Criminal Appeal cited no earlier authority than Prince for the proposition that, “On a trial for murder, the jury should be directed that, if upon a review of all the evidence they are left in reasonable doubt as to whether, even if the prisoner’s explanation is not accepted, the act was unintentional or provoked, the prisoner is entitled to be acquitted”.  The other indication that Prince was the first authoritative statement of the law is in the Law Report of Prince itself.  It contains the editorial note:

“[EDITORIAL NOTE.  A defence of provocation may reduce a charge of murder to manslaughter, but, since the decision of the House of Lords in Woolmington’s case, it is necessary that the jury should be directed that they may, even if they reject the story of the prisoner, yet find on all the evidence that the act was unintentional or provoked.  They may come to this conclusion upon a consideration of all the circumstances or upon the evidence adduced by the prosecution, although they disbelieve the story told by the prisoner in the witness‑box. …”

76. [76]
    From this review it can be seen that the existence of the rule under consideration is not affected by the change in onus of proof brought about by the 2011 amendment to s 304.  However, in my view the appellant raises a legitimate point about the application of the rule after this legislative change.
77. [77]
    Historically, when the common law was that the defendant bore the onus of proof of provocation on the balance of probabilities, the rule was that the judge had a duty to leave provocation to the jury if “there was some evidence – we say no more than that – upon which a question ought to have been left to the jury …”, to use the words in Hopper, above.  There are more modern cases which have more precisely considered how strong evidence must be before it is fit to be left to the jury.  Masciantonio v The Queen^[27] and Stingel (above) are such cases in the High Court.  R v Buttigieg^[28] and R v Rae^[29] are cases which undertake the same exercise in this Court.  It is apparent from the judgments in those cases that where the Crown bears the onus of excluding provocation beyond a reasonable doubt, evidence of relatively low strength should be left to the jury, because the jury need not be convinced by it; if they reach a state where they hold a reasonable doubt about whether or not the accused was provoked, they must acquit him.  Thus there are statements in the cases such as, “a trial judge should leave the issue to the jury if in the least doubt whether the evidence is sufficient” – Buttigieg, cited with approval in Rae at [35] and the cases cited there.  These are allied with statements such as “The judge should withhold the issue of provocation from the jury if it is such that no reasonable jury could hold the evidence sufficient to raise a reasonable doubt” – ibid.
78. [78]
    The appellant submitted that where the onus is on the defendant to prove provocation on the balance of probabilities, the evidence must reach a higher threshold before it becomes incumbent on a trial judge to leave provocation to a jury.  As a matter of logic, I think that submission must be accepted.  The appellants pointed out a passage consistent with this at [56] of Rae, per Fryberg J.  In the Explanatory Memorandum to the legislation which changed the onus of proof, one reason given for the change was that, “it enhances the capacity of the trial judge to prevent unmeritorious claims being raised”.^[30]  The same point was made by the Attorney-General in the second reading speeches relating to that legislation,^[31] and the idea can be seen in the report of the Queensland Law Reform Commission which preceded the change.^[32]
79. [79]
    After the 2011 changes, evidence fit to establish provocation must still be left to the jury, even if the defence does not raise it or rely upon it.  However, when it is necessary for a trial judge to consider whether or not the evidence is fit to be left to the jury, the test must be different from those jurisdictions where the onus is on the Crown to disprove provocation.  That is, it cannot be, “whether, on the version of events most favourable to the accused which is suggested by material in the evidence, a jury acting reasonably might fail to be satisfied beyond reasonable doubt that the killing was unprovoked in the relevant sense”.^[33]  Adapting that formulation to take account of the change in the onus of proof, I would suggest a test whether, on the version of events most favourable to the accused which is suggested by material in the evidence, a jury acting reasonably might be persuaded on the balance of probabilities that the killing was provoked in the relevant sense.  This is in accordance with the broad statements made in the old cases of Hopper and Thorpe, decided when the onus of proof was on an accused to prove provocation – see [66] and [71] above.  In applying this test it must be in the forefront of the trial judge’s mind that the question of fact is one for the jury.^[34]
80. [80]
    The appellant argued that in this case there was no sufficient evidence to cause the judge to leave provocation to the jury.  I reject this.  The CCTV shows that at about 3:30:27:29 Austin Woolla throws a rock at Ricky Pootchemunka.  He may well have yelled something at the time.  Bowenda was at this time chasing the four Woolla men with the pick.  The appellant was running right behind Bowenda, also chasing the four men.  Bowenda’s attention is attracted by Austin Woolla’s throwing the rock.  He pauses momentarily in his pursuit of four men.  Three seconds later the four men are on the other side of the drain, and Bowenda has turned around and is confronting Austin Woolla.  Four seconds after Austin Woolla throws the rock, the appellant is running towards Austin Woolla.  I think that this evidence is sufficient to show that there was a physical act, perhaps accompanied by words, which might have provoked both Bowenda and the appellant to turn towards, and then attack, Austin Woolla.  In the prosecutor’s address to the jury he referred to the stone being thrown as “the straw that broke the camel’s back”.  Alternatively, from the time Bowenda has Austin Woolla trapped on the wrong side of the drain the two men are shaping up to hit one another if they can.  At 3:30:33:73 pm on the recording the two men are very close to each other.  Bowenda has the pick raised to hit Austin Woolla and Austin Woolla has the metal bar raised above his head to hit Bowenda.  The appellant is poised behind Austin Woolla, his left hand is stretched out to grasp Woolla’s shoulder before he stabs him.
81. [81]
    As the finders of fact, the jury needed to be informed as to what the law of provocation was, so that they could determine whether in their view these factual situations showed that there had been a sudden provocation by Austin Woolla.  They did not need evidence from the appellant to consider this, or to consider the other parts of s 304(1), namely whether or not the appellant acted before there was time for his passion to cool.  Likewise, they did not need the appellant’s evidence that he had lost the power of self-control in order to make a judgment as to that, or indeed a judgment as to whether or not an ordinary person would have lost control had they been so provoked.  They had the appellant’s evidence as to whether or not he was angry with Austin Woolla at the time he stabbed him – see [63] above.  They may have seen this as support for a provocation defence.  Alternatively, they were entitled to reject his evidence, see [66] above, and look to what was proved as to provocation on the remaining evidence.  There was, in my view, sufficient evidence so that it was proper for the judge to leave provocation to the jury.
82. [82]
    It is noteworthy that defence counsel, who ran the case competently and effectively for the appellant, and who can be taken to have had a feeling for the evidence, did not object to the judge’s decision to leave provocation to the jury.  In the discussions on this topic between the trial judge and defence counsel, both were clearly aware that the defence bore the onus of proving provocation – see the underlined parts at [61] and [64] above.  There is an additional passage which bears directly on this:

“HIS HONOUR: And – and again, there’s – you know, strong arguments as to what provocation under 304 doesn’t arise in terms of excessive response and the like, but it doesn’t take much to get over the threshold, even though one has to be careful, because in the old days, it was the onus on the prosecution to exclude, but leaving aside onus questions ---

MR TREVINO: Yes.

HIS HONOUR: The evidence is there, even we put tenuous or a weak case on provocation, I think I’m bound to put it.”^[35]

83. [83]
    Contrary to the submissions made by the appellant’s counsel, I do not read the trial judge as saying in this passage that he thought he was obliged to put provocation to the jury because there was a “weak or tenuous case” shown on the evidence.  To the contrary, I read that as him saying that whoever bears the onus, there was sufficient evidence in this case to put to the jury having regard to the fact that we even put weak and tenuous cases to the jury.
84. [84]
    I do not think that the evidence supporting a provocation defence in this case could properly be described as weak and tenuous.  In my view there was sufficient evidence to go to the jury, because the jury acting reasonably might have been persuaded on the balance of probabilities that the killing was provoked within the meaning of s 304 of the Code.

Miscarriage of Justice – Failure to Answer Jury Question

85. [85]
    The third ground of appeal was that the jury asked a question of the court after it retired, but the court did not answer this question before taking the verdict.  On examination the factual circumstances are a little more complicated.
86. [86]
    The jury retired after the judge’s summing-up at 11.23 am on day 7 of the trial.  The judge left the court at 11.25 am.  The court resumed at 2.41 pm.  The judge said, “We had a note from the jury a little while ago – not that long ago, but obviously, we all had to convene”.  The note said:

“We are requiring assistance, please, in regards to lawfulness and defence of another, section 273, and in particular clarification and assistance around what degree of force would Mr Bowenda have been lawfully able to use in his self-defence and how it relates to the defendant’s use of a like degree of force.”

87. [87]
    His Honour recorded that, “… the bailiff just told me that he was buzzed by the jury – they say they don’t any longer require an answer to this question.  He said – they said to him, according to his report to me, that they had managed to sort the matter out, which was helpful to hear … So that’s that.  The need to give further directions on that, seemingly, has passed so we will await any further note or a verdict.”  There was no objection from either counsel to this course.  The judge left the court.  An hour later at 3.41 pm the jury came back with its verdict.
88. [88]
    There are several cases dealing with jury questions at or about the time of verdict, many are summarised in R v JX.^[36]  As might be expected, the circumstances which arise vary, and what is required in each case will depend upon the circumstances of that case.^[37]
89. [89]
    Here, the question concerned s 273 of the Criminal Code which provides:

“In any case in which it is lawful for any person to use force of any degree for the purpose of defending himself or herself against an assault, it is lawful for any other person acting in good faith in the first person’s aid to use a like degree of force for the purpose of defending the first person.”

90. [90]
    The question in its terms was very like one part of the written handout which the judge had given the jury as part of his summing-up.  That handout said on its first page:

“Did the defendant stab the deceased and use the force that he did acting in good faith and for the purpose of defending Mr Bowenda?

What degree of force (if any) would Mr Bowenda have been lawfully been able to use in his own self-defence in the circumstances?

Did the defendant use a like degree of force?

Note:  It is for the prosecution to exclude one or more of the components or legal elements of a s 273 defence, and to do so beyond reasonable doubt.

Therefore the s 273 (defence of another) defence will be excluded if the prosecution satisfies you beyond reasonable doubt that:

1. The defendant did not act in good faith and for the purpose of defending Mr Bowenda when the defendant stabbed the deceased; or

2. The degree of force that the defendant used was not a like degree of force to the force that Mr Bowenda would have been able to lawfully use in his own self-defence in the circumstances.”

91. [91]
    The second page of the handout is headed, “What degree of force would Mr Bowenda have been able to lawfully use in his own self-defence in the circumstances?”  There followed two-and-a-half pages of detailed instruction as to that matter.  No criticism is made of its accuracy.
92. [92]
    The jury’s asking a question in the terms it did, and then fairly shortly afterwards informing the judge that they did not need the question answered, is consistent with the jury acting rationally in discovering that the answer to their question was in one of the subsequent pages of the handout.  Equally, it is consistent with the jury realising that they were all agreed that the appellant had not acted in good faith, and therefore need not resolve difficulties they had with the amount of force which Bowenda could lawfully have used.
93. [93]
    In R v Lapins^[38] the jury asked for a transcript of the summing-up.  They were told that it was not the practice of the court to provide a transcript, but that if they identified the part or parts with which they needed assistance, the judge would read it to them again.  The jury never identified the parts they required, and made no further requests before advising that they had reached a verdict.  Vanstone J said:

“The interaction between judge and jury indicates that the request they made – that a transcript of the summing up be provided – was not one which the judge considered the practice of the court permitted fulfilling. Having advised the jury that that was the position, the judge indicated that he would receive any specific request for assistance. None was forthcoming. This is not a case where the jury was denied assistance. Apparently the jury decided not to pursue the enquiry. Therefore there was no outstanding request at the time when the jury’s verdicts were delivered.” – [61]. (my underlining).

94. [94]
    In this case, like R v Lapins, “The trial judge did not take verdicts without answering the jury’s request for further directions” – [34].  The jury in this case asked a question and then, fairly shortly afterwards, told the judge they did not need the question answered.  There is no basis to assume they acted irrationally in making either communication with the judge.
95. [95]
    The appellant relied upon R v Salama.^[39]  That was a case where a jury asked for a direction as to the law.  The question betrayed that the jury was confused about one of the essential elements of one of the charges before them.  While the judge and counsel were dealing with the question, a second note arrived from the jury saying, “Your Honour, we have reached a verdict.  Please disregard the question previously sent in.”  In that case there was held to be a miscarriage of justice because the judge took the verdict without answering the question.  He did so over the objection of defence counsel.
96. [96]
    The New South Wales Court of Criminal Appeal in Salama described the question asked as going to “the heart of the charge”.  It was submitted here that the jury question went to the heart of the s 273 defence.  In fact, the question here was not necessarily on the critical path to a decision on s 273, see [92] above.  That being said, I do not base my decision on that factual difference, nor the factual difference that defence counsel in Salama objected to the course the trial judge took.  The question which the jury in the present case asked was a sensible and important question, but they very soon afterwards advised that they did not need it answered.  As discussed, there were obvious rational bases for this change.  Cases which overturn verdicts where there is an unanswered jury question do so on the basis that the jury is taken at its word when it says it needs further assistance.  In the circumstances of this case, I cannot see that the jury ought not to have been taken at its word when it said it did not need assistance.  As President Sofronoff remarked in R v VM^[40], jurors are not to be treated as a group prone to make errors in reasoning; experience is to the contrary.  Further, as the Court of Criminal Appeal in New South Wales indicated in TAB (above), “Great care must be taken, as the authorities indicate, not to seize upon any question asked by a jury as a justification for taking steps that will in fact amount to, or could be perceived to be, an intrusion into the deliberative process of that body.”
97. [97]
    BRADLEY J:  I agree that the appeal should be dismissed for the reasons identified by Dalton JA.