R v DBL

This was an appeal against conviction where the appellant had been charged with five counts of assault following an episode of domestic violence. There were a number of grounds of appeal but this summary deals principally with two issues: the manner in which the jury was directed regarding the availability of a possible provocation defence and whether the appeal should be allowed on the ground that the jury had asked a question regarding the law on provocation which remained unanswered when the verdicts were delivered.

Morrison JA and Boddice and Dalton JJ

24 April 2017

This was an appeal against conviction where the appellant had been charged with five counts of assault following an episode of domestic violence. He was ultimately convicted at trial on three counts and acquitted on the remainder. [1]–[2].

The appeal was brought on the following numerous grounds:

1. the jury, having asked for clarification of the defence of provocation, were not given a further direction, and subsequently announced their verdicts;
2. the acquittals on counts 2 and 4 were inconsistent with the verdicts of guilty on counts 1, 3 and 5;
3. the indictments were amended in the course of the trial resulting in a real risk of confusion on the jury’s behalf;
4. an inadequate direction on provocation was given;
5. the verdicts were unreasonable or insupportable; and
6. despite an undertaking that there would be no reference to “domestic violence”, the phrase was used on several occasions and might have influenced the jury. [3].

Only the Court’s consideration of the directions to the jury on provocation will be addressed below.

Jury’s request for clarification of the defence of provocation

At the conclusion of the trial, the respective addresses to the jury proceeded on the basis that a statement made by the complainant to the effect of “Daddy’s sick in the head” was the act giving rise to provocation.  The jury was directed that provocation arose only in respect of count 1 or count 5 and that they ought be satisfied that the appellant in fact lost his self-control as a result of the particular insult, and then consider whether the force used was disproportionate. [31]. On the third day of the trial the jury sought clarification of the definition of provocation. [32]. Given the breadth of the request the trial judge responded that she was not prepared to answer it until the jury specified which aspect they wanted clarified. [33], [34]. The jury subsequently retired and a short time later returned with their verdicts. [35].

After reviewing the relevant authorities including R v JX [2016] QCA 240, Morrison JA (Boddice and Dalton JJ agreeing) formed the view that the note sent by the jury was indicative of the possibility of uncertainty in its corporate state of mind or confusion “that went to the heart of the charge or understanding of the offences”.  The failure to provide the further directions sought prior to acceptance of the verdicts accordingly breached the general rule (referred to in R v JX) that a trial judge should not take a verdict until any requests from the jury for direction have been answered as fully as possible. [52]. Nonetheless, after assessing the whole of the evidence the Court concluded that no substantial miscarriage of justice had occurred as a result because the defence of provocation was not open to the jury. [56], [66].

Adequacy of the direction on provocation

The appellant argued that the direction on provocation was deficient in that it did not refer to the build-up of circumstances over the previous year, or the complications of children spending time with him, matters which may have decreased his level of self-control. [67]. The Court discounted that submission upon reviewing all the evidence, some of which suggested that there were no more than the usual difficulties between separated couples in the period prior to the incident [68] together with the content of the direction, which clearly indicated that the judge had specifically traversed matters that the jury was required to consider including any history of disputation between the appellant and the complainant. [69].

In the result the appeal was dismissed.

A de Jersey