Green v The Queen S172/1996 [1996] HCATrans 500 (10 December 1996)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S172 of 1996

B e t w e e n -

MALCOLM THOMAS GREEN

Appellant

and

THE QUEEN

Respondent

BRENNAN CJ

TOOHEY J

McHUGH J

GUMMOW J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 10 DECEMBER 1996, AT 10.23 AM

Copyright in the High Court of Australia

MR T.A. GAME, SC: If the Court pleases, I appear for the appellant with my learned friend, MR T. MOLOMBY. (instructed by T. Murphy, General Manager, Legal Aid Commission of New South Wales)

MR K. MASON, QC, Solicitor-General for the State of New South Wales: I appear with my learned friend, MR A.M. BLACKMORE, for the respondent, if the Court pleases. (instructed by S.E. O'Connor, Solicitor for Public Prosecutions (New South Wales))

BRENNAN CJ: Yes, Mr Game.

MR GAME: If the Court pleases, I hand to the Court an outline of argument.

BRENNAN CJ: Yes, Mr Game.

MR GAME: If the Court pleases. At the very end of his record of interview the appellant was asked a question and it appears in the appeal book at page 264. It was effectively the last question in the record of interview and the record of interview was conducted only a few hours after the killing. It is question 163.

KIRBY J: What page?

MR GAME: Page 264, your Honour:

Is there anything further you want to tell me about this matter?

A. In relation to what had happened this night I tried to take it as a funny joke but in relation to what my father had done to four of my sisters it forced me to open more than I could bear. It hasn't changed the fact to what had happened to my family but I couldn't stop myself or control what went through me.

Now, he was asked some questions about that in evidence and in cross-examination and one passage appears on page 264, the bottom of the page:

Q. Why did you lose control?

A. Because those thoughts of me father just going through me mind.

Q. What about your father was going through your mind?

A. About sexually assaulting me sisters and belting me mother.

He said in other places in evidence in effect there were flashes of his father over his two sisters, at the time he lost self-control, that he kept hitting him because he felt trapped. The evidence, in our submission, would establish a clear connection between his relationship with the deceased as a father figure and his own sense of betrayal in relation to his relationship with his father. These were the thoughts that were going through his mind at the time he lost self-control.

Early in the trial counsel sought to cross-examine a person who had been called as a Crown witness who was in fact one of the sisters of the accused, Cheree Warnock. He sought to cross-examine her in relation to the family history, particularly the knowledge of sexual assaults and the accused's own beliefs in relation to that - his own concerns, his own sense of anger in relation to it. The trial judge erroneously, as has been conceded in the Court of Criminal Appeal, rejected that evidence in relation to provocation.

TOOHEY J: You are drawing a distinction there, Mr Game, between evidence that might have been elicited from the sister as to what in fact happened, and then you spoke also of the accused's reaction to those events. Are you saying that the cross-examination was also designed to bear on the second of those aspects?

MR GAME: Well, your Honour, we are content to argue this appeal on the basis that the material should have gone in to establish the accused's state of mind rather than necessarily establish the truth or otherwise of those assertions. But an attempt was made to cross-examine the sisters as to whether or not sexual assaults had actually taken place, and an attempt was made to introduce into evidence the criminal history of the father.

TOOHEY J: Yes, I understand that. But I am not sure - unless the evidence in some way showed that the accused was at the time, or even later perhaps, aware of what had happened, I am not sure how cross-examination of the sister on that aspect could be relevant.

MR GAME: Well, what was sought to do was to cross-examine the sister and mother and other sister to establish both that the appellant knew of this and the time at which he knew of it and his reaction to that knowledge over a long period of time. Now, this ruling - and the evidence was quite pertinent in relation to that - did two things: (a) it excluded the evidence in relation to it being introduced in relation to provocation, but (b) a second error was introduced into the whole proceedings, which was that the case from that point on had to be conducted on the basis that the provocation had to induce in the ordinary man a reaction which might cause him or her to do what the accused did. That subsequently formed ground 4 of the grounds of appeal. But those two errors, in effect, coloured the balance of the trial.

On the following morning after this ruling counsel returned to court armed with further arguments for the admission of the evidence in relation to the family history. He put to the trial judge that the evidence in relation to the family history should be admitted, in effect, to show that if the accused had said what the Sirolas said he had said, which was words something along the lines that there was somebody that he would like to kill, and this was on probably the night before the night of the killing, that this was, in fact, a reference to his father. The trial judge accordingly admitted the evidence in relation to that issue but excluded it in relation to provocation. Now, just to put the thing in context it, in fact, ultimately was used against the accused, the evidence of the family history in relation to provocation, and that can be seen in the appeal book at page 235.

KIRBY J: The history of the father's alleged sexual abuse of the sisters did go before the jury, though?

MR GAME: It went before the jury strictly to meet - and I will take the Court shortly to the references in the summing up to this - the evidence of the Sirolas that the accused said that there was somebody that he would like to kill. That is to say if he did say that then he was referring to his father, but it was specifically excluded in relation to provocation. Now, if one looks at page 235 one can see how, in effect, the evidence was turned on its head against the accused. It is referred there to a couple of passages of evidence in which was said:

Q. What about your father was going through your mind?

A. About sexually assaulting my sisters and belting my mother.

Q What feeling did you have at that time as a result of that?

A Upset and angry.

Then:

The Crown says when you look at that evidence, even if you reject its version as to what took place, and if you accept the accused's version at its highest, it says that you will treat those answers literally as suggesting that if he did lose control it had nothing to do with the conduct of the victim but he lost control because of thoughts of his father and his sisters going through his mind. That is the Crown case as to why it says, if you get to provocation, that it has been negatived; and had nothing to do with the accused's conduct.

KIRBY J: So that, although there was an earlier ruling that it was not to be taken into account, save for the particular purpose, in fact, when the judge gave the charge, he was using it in the connection of provocation.

MR GAME: In a negative way. In one looks at the summing up - if it would be convenient, I could take the Court to some passages now. At page 213 in the summing up, lines 30 and following:

The evidence about the father's activities in relation to the sisters, and alleged sexual misconduct in relation to them, and also the evidence in relation to the father's assaults upon the wife has been brought forward and is relevant to whether, in fact, there was this so called claim of pre-meditation.

.....The evidence is brought forward to support a view that the unstated person or the unidentified person in this alleged conversation would not have been Mr Gillies -

Then, at page 230, there is a reference at page - it is not a specific reference to this evidence. It says, lines 35 to 45:

The third alternative is available to the Crown to ensure that an accused person who is abnormally or exceptionally sensitive to provocative behaviour is not permitted to escape full responsibility for causing the death of another person.

Then, at page 231, there is a statement at the bottom of the page, of the "ordinary person" test, which, it is not essential to our argument, but we would submit that that passage at the bottom of the page on 231 is, at best, confusing. And then, at page 233, lines 30 and following:

Whether or not he was sensitive or not, whether or not he was a "volcano capable of being exploded" or whether he thought about his sisters or about his father's activities with them is not really to the point.

As I have said to you, ladies and gentlemen of the jury, the evidence of the accused in relation to his feelings about his father, his feelings in relation to offences of a sexual nature allegedly committed by the father upon the sisters is relevant (as I have earlier indicated) was admitted, to neutralise the premeditation claim that has been advanced through the Sirolas -

Then at page 234 one can see, in a sense, what the accused was left with as his case, lines 10 to 20:

brought this friendship to an end was the conduct of the victim that night. The accused claims a younger man, two-thirds of his age, made sexual advances and sexual overtures to him - a person who was heterosexual, who had never been caught in a situation before. He says "It is this conduct that caused me to lose my self-control".

So, in effect, the defence was severely truncated by the ruling, because the very account that he gave in relation to his loss of self-control was taken away from him. And then one sees the passage to which I have already referred at page 235. It was used against him in the way in which I have identified.

TOOHEY J: Mr Game, I am just having a bit of trouble fitting this present line of argument into the grounds of appeal and particularly because ground (c), which is on page 317, contends that:

The Court of Criminal Appeal erred in holding that evidence of the truth of what the Appellant's father had done.....was not admissible -

but your present argument is really a much wider one that that, is it not? You are saying, in effect, as I understand it, that even the appellant's belief as to what might have happened was shut out from the jury in relation to provocation.

MR GAME: Yes. Your Honour, in order to understand the grounds, it is necessary to go back into the judgment of the Court of Criminal Appeal, because the three principal grounds that were advanced were conceded by the Court of Criminal Appeal. The Court of Criminal Appeal dismissed the appeal on application of the proviso, but in order to understand the whole argument it is necessary to go back into the grounds which were - and I will take the Court to them directly - argued in the Court of Criminal Appeal and which were upheld as grounds here in the appeal book at page 265.

TOOHEY J: So are you saying, in effect, that this present line of argument is really not a challenge to the Court of Criminal Appeal, but was given insufficient weight or attention in considering whether or not the proviso would apply?

MR GAME: Your Honour, there are a number of aspects to the argument but, firstly, it is necessary to understand how the Court of Criminal Appeal could have concluded (a) that the appellant would, in any case, have succeeded under 23(2)(a) but, in any case, lost under 23(2)(b). The critical and central error which we identify in the judgment of the Court of Criminal Appeal concerns the failure of the Court to have regard to this material in respect of 23(2)(b), that is to say, it all touched on the gravity of the provocation, but it was conceded as being relevant to 23(2)(a) in the Court of Criminal Appeal.

Justice Priestley concluded that the appellant would, in any case, have succeeded under 23(2)(a). We dispute that finding. We say that how could it be said that he would in any case have succeeded under 23(2)(a) when that very evidence was used against him to show that (a) he was not acting under provocation, and (b) in respect of section 23(2)(b) we submit that none of this material was considered by the Court of Criminal Appeal in considering section 23(2)(b). It is relevant because it establishes the gravity of the provocation.

It was the central thing which operated on his mind in the circumstances. It explained the gravity of the conduct of the deceased, particularly in circumstances where the deceased was, on the evidence, a father figure, a person who the accused had trusted, who had given him employment, a person who he had looked up to, who knew his circumstances, who knew that just a few days ago he had broken up with his girlfriend. In a sense, he was one of his closest friends. So that there was a relationship of trust between the two.

So that what took place in the bed - and we do not agree with the description of it as merely an amorous touching but an unwanted and rejected on more than one occasion sexual advance by a naked person who has invited a person to stay at his place, who has a particular relationship with him, and it is that particular relationship which goes to the heart of this case. So all I have been attempting to do so far is to show how the material was excluded in the trial and how it came before the court, but all of this is bound up in the ground of appeal which says that the court erred in applying the proviso. That is the way in which we put the argument.

McHUGH J: One difficulty I am having at the moment with your argument is not in relation to 23(2)(b) because, at the moment, it seems to me plain that the material to which you have referred was relevant to 23(2)(b), but the passages which you have been reading, I think for the most part, are passages directed to paragraph (a) and I have more problem about (a). It must go to provocation but, ultimately, it is whether or not, under (a), is whether or not the act or omission is the result of a loss of self-control induced by any conduct of the deceased. The conduct here is the sexual advances and as to whether or not that caused the - that must be shown that that induced the accused to lose self-control, but perhaps the charge was not as full as it could have been, but are you suggesting that there was any error in what was actually said by the judge about paragraph (a)?

MR GAME: Your Honour, the conduct of the deceased does not exclude the whole of the relationship between the deceased and the accused and in respect of (b) putting - - -

McHUGH J: You are on (b) now.

MR GAME: No, but, your Honour, to understand the conduct of the deceased one has to understand the relationship between the two because one has to understand whether or not the accused was provoked by that conduct. Now, one cannot exclude the relationship - - -

McHUGH J: No, and it clearly must go to provocation, but once it goes to provocation, you still have to ask yourself the question, "Was the loss of self-control induced by any conduct of the deceased?"

MR GAME: Your Honour, if one puts it in those - I am not sure that I am disagreeing with you because, your Honour, it was conduct of the deceased which induced the loss of self-control.

McHUGH J: Yes.

MR GAME: Loss of self-control in a person with a particular history, but, your Honour, even on (a) one has to bring into account that particular history. In fact, the very way in which it was used against the accused, that passage at page 235 really demonstrates that.

McHUGH J: I know. When you said that I just wondered whether or not the criticism was well-founded. It may be on the facts of this case, but I could imagine cases where somebody loses self-control, not because of the conduct of the deceased, but because in some way it does trigger off something.

MR GAME: That may be so, your Honour, and this issue was never addressed in the Court of Criminal Appeal and if it had any foundation then it is obviously a matter that would had to have been addressed, but the relationship between the two was not tangential in any sense, as can be seen by answer 163 and as can be seen by the fact that the betrayal by the father of the sisters and the mother was of the very same kind as was now happening to him in a person that he trusted as a father figure and so - - -

McHUGH J: The difficulties of this case seem to me to rely on other areas and it is the question of reasonable proportionality and whether it fits in at all with this section now. I must say I have some difficulty about that whole concept really having regard to the language of paragraph (b) and subsection (3) assumes that it has got some part to play or may have some part to play and it is not easy to see how it fits in there.

MR GAME: Well, proportionality is not and has not been since the decision of this Court in Johnson an element that it is necessary to establish - - -

McHUGH J: No.

MR GAME: - - - and one might have thought that the drafters of this legislation which in a sense followed on the heels of Johnson, but it really more directly followed on cases such as Georgia Hill Case, and was concerned more with the position of battered wives than with the particular circumstances such as these, but, in our submission, the matter to which your Honour refers, in our submission, ultimately comes down to an application of the objective test in subsection (b), which is, could the ordinary person in the position of the appellant have lost self-control to that degree, and when one sees the loss of self-control in subsection (b) has been cut down from some of the statements as to what was required in Johnson's Case, it is certainly a lower standard than was required by this Court in Stingel's Case.

There are varying statements in Johnson and there are varying statements in Moffa. In fact, some judges say in this test loss of self-control to the degree to what the accused actually did. But to have so far lost self-control as to have formed an intent to kill or to inflict grievous bodily harm is, in our submission, a lower standard than was required at the time of Johnson's Case.

McHUGH J: What is your submission about "formed an intent"? Do you qualify if a person would have formed an intent to kill and one does not then have to worry about proportionality or what happens after that moment?

MR GAME: Exactly, your Honour. All that you need is that the ordinary person in the position of the accused could have formed an intent to do serious injury.

McHUGH J: Yes.

MR GAME: Justice Priestley, not even having regard to the family history, said "could have formed an intent to throw blows".

KIRBY J: I think he fell short of "causing serious injury".

MR GAME: One would assume so, yes, your Honour. But there are difficulties with the way in which Justice Priestley dealt with this aspect of the case anyway because of - - -

KIRBY J: Where do we find a description of the history of the legislation? You say in your first paragraph that it is in substantially different form to its predecessor.

MR GAME: Your Honour, I have the second reading speech and I have also put on the list of authorities both Johnson and Parker which have the earlier legislation, but I hand to the Court the second reading speech and I will take the Court to the relevant passages.

McHUGH J: I was in Johnson, but I must say I rather think that you would be better off forgetting about those cases altogether and just concentrate on the words of the section.

MR GAME: I am not sure that it helps terribly much, your Honour. But I will take the Court to the second reading speech because it does outline what the - at page 2485 the discussion of section 23 begins. Then over at page 2486 there is reference to the Georgia Hill Case. Then at point 5:

However, the new provocation law will not allow accused persons to raise nebulous possibilities as a shield against punishment. The test is not only whether the accused was provoked but also whether an ordinary person, in the position of the accused, would have been provoked.

It is actually "could have been".

The formula of words used does not introduce an entirely subjective test of provocation, but it does allow the courts, developing the law through cases, to interpret what the position of the accused was. I expect that we can look to the sensible but humane application by the courts of this formula of words.

BRENNAN CJ: How does that assist us to construe this Act?

MR GAME: It does not particularly, but it does provide the history as to how it came about that this form of words was introduced. The previous provision is contained in Johnson and can be seen in the headnote to Johnson - which can be seen better in the headnote to Parker, which is at [1963] HCA 14; 111 CLR 610. The legislation was in the same form. The reference to use of "grossly insulting language or gestures" has been excluded. The onus of proof has gone, and the ordinary person in a position of the accused has been introduced in the new legislation, whereas the old legislation said:

it was reasonably calculated to deprive an ordinary person of the power of self-control and did in fact deprive the accused of such power -

McHUGH J: The trigger for the changes was a very strong campaign conducted by women's groups which complained that that part of the definition that is required, that the act causing death be done suddenly in the heat of passion, was most unfair to a number of women defendants, such as Georgina Hill and others, who have been convicted of killing their spouses or husbands, I think, in some cases when they were asleep - Mrs Roberts was one, and others. The Hill decision certainly improved the position of women defendants, and then that legislation was brought in. That seemed to be the general thrust. But I do not know that you get much out of the history as to the meaning of the section.

MR GAME: I am not sure that you do either. But the result of the section in terms of statutory interpretation in respect of the ordinary person in the position of the accused, in our submission, is very much that one is not so much looking for characteristics of the ordinary person any more, which was very much the focus of the English Homicide Act, and very much the focus of the common law. The only characteristic with which one is concerned, in effect, is disregarding the characteristic of self-control in the accused, because one has to disregard that when one comes to the application of the "ordinary person" test.

But in other respects, one is not looking for characteristics of the ordinary person; one is putting the ordinary person in the position of the accused. So, it does produce a different focus of the inquiry. For example, exercises such as asking oneself is the ordinary person of that particular class, or sex, or cultural background, cease to have such importance because all of those things are given when one puts the ordinary person in that position, when asks oneself how grave is the provocation. An assessment as to the gravity of the provocation itself involves a judgment - how serious was it? There is clearly, in our submission, enormity of judgment in judging the seriousness of the conduct and we do not - - -

KIRBY J: What I do not really understand is what the addition of the words "in the position of the accused" did. The old statutory provision was just an "ordinary person" - and then this new phrase was introduced - seems to be an internal contradiction in the formula. The original formula was presumably an objective standard, and then this additional phrase was added to soften that. But it seems difficult to reconcile the two notions.

MR GAME: It is difficult to reconcile the two notions, your Honour, but, in a sense, this statutory provision heightens the irreconcilability of the legislation but that irreconcilability has been acknowledged on many occasions in the cases, but it is pointless for one to attempt to argue against the application of an ordinary person in the position of the accused when it appears in the statutory provision. The exercise is to make sense of it.

KIRBY J: I realise that, but I am seeking your help to make sense of it because - - -

MR GAME: I say that, your Honour, because there have been temptations to simply do away with the ordinary person test in common law examinations because of the irreconcilability of it and Justice Murphy's judgment in Moffa's Case was such an example.

KIRBY J: There seem to have been three possibilities. One the objective test or to go to the Murphy and Irish approach of the subjective test and this is somewhere in between, but I do not quite understand how it works. What are the elements subjected to the accused that are brought in by that additional phrase that modifies what was otherwise an objective standard designed to spell out the obligation on everybody to control their passions, and not to give way to irrational responses?

MR GAME: The effect of interpretation of this provision is that one no longer has to inquire, for example, is the ordinary person of infirm mind, is the ordinary person drunk? That is no longer relevant to the inquiry, in our submission. One does not have to engage in that.

KIRBY J: The words are "in the position of the accused", not with the background of the accused, or with the knowledge of the accused, or with the experience of the accused.

MR GAME: In our submission, "in the position of the accused" means with the background, every single thing that touches upon the loss of self-control. So, for example, in the position of the accused, is the accused there with thoughts of - - -

KIRBY J: The difficulty with that theory is that that would have justified a completely subjective approach and that, by the second reading speech and by the words of the legislature, has being rejected.

MR GAME: But, your Honour, one cannot exclude a person's background in considering their position.

GUMMOW J: That is the question, Mr Game. In the position at a particular time in particular circumstances.

MR GAME: Yes, your Honour, it must be the position of the - - -

GUMMOW J: Looked at objectively. This person in this room at this time, et cetera, et cetera, not a person carrying a particular mental baggage.

MR GAME: But, in our submission, it is a person carrying a particular mental baggage, because that is his position.

BRENNAN CJ: Is this your case that what must be done is a two-stage test: the first stage is to determine the gravity of the provocation to the individual accused and to ascertain the gravity of the provocation to the individual accused, you have to take him as he is, in all the background and in all the circumstances?

MR GAME: Yes.

BRENNAN CJ: Having ascertained the gravity of the provocation to the individual accused, you then must postulate what an ordinary person, receiving provocation of such a severity, might do or would do or could do?

MR GAME: Exactly.

BRENNAN CJ: Well then, what is the distinction between the operation of this section of the New South Wales Crimes Act and Stinger?

MR GAME: Well, in our submission, there is very little distinction.

BRENNAN CJ: Well now, if that is so, your argument in this case is that the trial judge took away from the jury the opportunity to hear and then to consider evidence which was relevant to the determination of the gravity of the provocation offered to him. Is that right?

MR GAME: Exactly, your Honour.

BRENNAN CJ: And, if that is so, then there is no case for the proviso to apply?

MR GAME: Exactly, your Honour.

BRENNAN CJ: Well now, there is one other aspect to it, however, and that is that in relation to the admissibility of the evidence of what in fact was done by the father to the siblings, that would have been irrelevant unless the accused knew of it. So it is the knowledge of it and not the fact of it that is relevant.

MR GAME: Yes.

BRENNAN CJ: So, therefore, evidence of the fact of it must have been inadmissible.

MR GAME: We are not arguing that ground.

McHUGH J: I am still having some difficulty following your argument now, particularly in the light of your answers to the Chief Justice. Do you now concede that, on the issue of the self-control of the ordinary person, you do not incorporate personal characteristics or attributes of the accused?

MR GAME: The ordinary person?

McHUGH J: Yes.

MR GAME: The ordinary person has, on our argument, no characteristics at all; the ordinary person is a standard, in effect, which is put in a position of the accused. The only standard - - -

McHUGH J: Well that is the difficulty I have, because that seems to me to be a departure from both Stingel and Masciantonio.

MR GAME: Well, the result is not that different, your Honour, in my submission, but I will put it this way, because the Homicide Act really required a consideration of what characteristics did the ordinary person have. So did the New Zealand legislation, which was very influential because of a decision called McGregor. But that inquiry seems to be inquiring about what characteristics of the ordinary person possesses seems to be unnecessary, in our submission, because the provision requires one as best one can, to put the ordinary person in the position of the accused, so that really all it is is a standard against which you judge the gravity of the provocation and the loss of self-control.

That is to say, to put it crudely, if the provocation is judged as having, shall we say, seven point five on the Richter scale of gravity of provocation, then one succeeds in applying the ordinary person test, and, in a sense, there is a sliding scale of ordinary person and gravity of provocation and if they meet, one succeeds. So, for example, if one has a person - the glue sniffing example is the recent decision of the House of Lords in Morhall, where the glue sniffing had to be taken into account in assessing the gravity of the provocation. But one's quality as a glue sniffer, or one's qualities as an alcoholic, or whatever, are not relevant when one applies an ordinary person test.

McHUGH J: Can I become more contrary? Do you accept that the characteristics of the ordinary person are merely those of a person with ordinary powers of self control?

MR GAME: Yes.

McHUGH J: You accept that?

MR GAME: Yes.

McHUGH J: And, the words "in the position of the accused" do not qualify that in any way?

MR GAME: No.

McHUGH J: Right. Well then, you accept Masciantonio and Stingel.

MR GAME: But, because you have taken into account all of those things in assessing the gravity of the provocation and, as I said, we do not dispute that there is a qualitative judgment when you ask yourself, or when the jury asks themselves, "How serious was the provocation?", that you are saving the test and you are applying it to a state of affairs which exists, so that you have given a meaningful application to the ordinary person in the accused's test.

McHUGH J: The words "In the position of the accused" are somewhat unfortunate, I think, in terms of this section.

KIRBY J: Did they not come from endeavours in the insurance field? I think there is something in the Insurance Contracts Act about that time to look at the insured as the ordinary insured person in the position of the insured, and at about the time this legislation was being developed, I think this was being thrown around in the civil area, and somehow somebody must have had the bright idea to bring it into this Act.

MR GAME: It may be; it may be also, your Honour, although I cannot recall, but it may be that one of the judgments in either Kamplin or Parker referred to putting the ordinary person in the position of the accused, and I would tend to suggest that that would be a likely possibility.

KIRBY J: The one thing is clear, and that is that it was not intended that it should be the accused, because it would have been so simple to say, "Replace "ordinary man" by `the accused', and that would have been the subjective test, which had been adopted by the Supreme Court of Ireland, and by some other courts, but it was clearly rejected.

MR GAME: There would be no point at all to subsection (b). But I should say this, in terms of the directions that were - coming back to a matter raised by your Honour Justice McHugh - - -

GUMMOW J: Just before you do that, Mr Game, am I right in thinking then that this phrase, "In the position of the accused", you treat as bringing with it the attribution to the ordinary person of special sensitivities of this particular individual, by reason of the past history of that particular individual, not being immediately related to the particular setting in context where the conduct of the deceased takes place?

MR GAME: I am not sure about the "not immediately being related" because, in our submission, the history was immediately related having regard to the explanation that he gave for what he did, but all of his attributes which go to an assessment of the - - -

GUMMOW J: What an extraordinary story. He has last seen his father when he was nine or 10 years old, except for one incident when he was 15.

MR GAME: But, your Honour, there is a lot more evidence about it. He had gone looking for his father at Lighting Ridge.

GUMMOW J: Yes, when he was 15.

MR GAME: He had been talking about - - -

GUMMOW J: He was belted up by him too but, nevertheless, that gives rise to some special sensitivity in this person. It is like an eggshell case in a way.

MR GAME: It is exactly like an eggshell case.

GUMMOW J: But you attribute the eggshell to the ordinary person, that is what I am trying to ask.

MR GAME: You have to put the ordinary person in a position of the eggshell accused, yes.

BRENNAN CJ: By that you mean no more than you must somehow or other produce a schizophrenia into the accused. On the one hand, he is sensitive to the particular provocation that is offered to him and, on the other, he is capable of exercising the ordinary powers of self-control, is that right?

MR GAME: There is a minimum standard which is the powers of self-control to form an intention.

BRENNAN CJ: Of an ordinary person.

MR GAME: Yes, to form an intention to cause serious injury, yes. It is a schizophrenia, that cannot be escaped.

BRENNAN CJ: Yes.

McHUGH J: No, it is an ordinary person having suffered the sting of provocation which the accused has suffered.

MR GAME: Yes, exactly.

BRENNAN CJ: And in order to determine the sting, what circumstances do you say you take into account? Do you take into account, for example, physical peculiarities, racial or ethnic origin, particular history, or only the circumstances surrounding the offering of the provocation itself?

MR GAME: Your Honour, we submit that every single thing that puts in context the state of mind of the accused at the moment at which he loses his self-control or her self-control is that - - -

TOOHEY J: Are you saying that in relation to paragraph (b) as well as paragraph (a)?

MR GAME: That is what you have to do, yes. To assess the gravity of the provocation, you have to take into account every single thing, but when one says history and when one says background, really, what one is speaking of is that - - -

GUMMOW J: One has to be speaking of the mental condition of this individual.

MR GAME: Yes, that must be right.

GUMMOW J: On your submission - - -

MR GAME: On our submission, yes. Sorry, I was not suggestingit. What I was going to say was that when one speaks of background and history and so forth, that is really, in a sense, shorthand for saying the things that are in the mind of the accused person at the moment that he loses his self-control.

KIRBY J: I find that hard to accept given (a) that there had been a debate before this legislation was adopted as to whether the subjective test should be applied; (b) that that debate is reflected in the second reading speech that you handed up, and (c) the theory that you are propounding really does not need the words "an ordinary person in the position of". It just would have been enough to say, "the conduct of the deceased was such as could have induced the accused".

MR GAME: But my point, your Honour, is that when one applies that test, one ignores the accused's own powers of self-control for the purposes of the application of that test.

McHUGH J: That is really the only distinction, is it not?

MR GAME: Yes, your Honour.

McHUGH J: It is - - -

BRENNAN CJ: A thermometer.

McHUGH J: Yes. The section would have been better drafted if it had referred to the accused losing his self-control if he had had the power of self-control of an ordinary person.

MR GAME: Yes, exactly.

KIRBY J: But the reference to "the ordinary person" and the persistence with that reference seems to be indicating a parliamentary intention that it is expected of a person in the position of the accused that that person will have the self-control of an ordinary person. The self-control of an ordinary person would not react in a murderous way to the kind of advances that are described by the evidence here. At least, that is the view that the majority took in the Court of Criminal Appeal. It is unarguable that an ordinary person would, and that therefore, I take it, this is the reasoning on the proviso, that therefore you really did not lose a chance of acquittal?

MR GAME: Yes, but the Court of Criminal Appeal failed to appreciate that the evidence was relevant to paragraph (b), and that is clear from an examination of the judgment. So that, in effect, they said they were dealing with a provocation that was far less grave than that which was in fact exposed by the accused's own case and the evidence in the case. I should say also that, although the evidence of the family history was excluded, the evidence of the relationship between the accused and the deceased was in evidence. So that, if one coupled that with the evidence in relation to his family which was excluded, then in a sense it was quite a strong case. In fact, Justice Smart described the provocation as grave.

KIRBY J: Yes, but I find that a rather unpersuasive description myself if you are testing it by "the ordinary person".

MR GAME: Your Honour, could I say this: firstly, the question which we are now arguing was not addressed by the Court of Criminal Appeal at all. Secondly, when one looks at section 23(2)(b), as I said before, one is not concerned with the powers of self-control of the accused. All one says is that one ignores the powers of self-control of the accused for the purposes of the application of that provision. That is what that provision achieves.

KIRBY J: Is there any discussion in any of the authorities in the Court of Criminal Appeal other than this case about those words "an ordinary person in the position of the accused"?

MR GAME: There is no discussion which is helpful. The case of Baraghith simply says that it is the same as Stingel, and there is another case called Tumanako which says the same. There is no discussion which would be helpful to the Court, in our submission.

KIRBY J: Does it appear in other statutes that you have been able to find?

MR GAME: It appears in no other provocation legislation in Australia. It does not appear in the Homicide Act. It does not appear in the Canadian legislation. It does not appear in the New Zealand legislation, so it is an exclusively New South Wales piece of legislative thought. I should say also that I referred earlier to a passage in the summing up where his Honour said in the ordinary person test the application was:

to ensure that an accused person who is abnormally or exceptionally sensitive to provocative behaviour is not permitted to escape full responsibility -

and the jury came back and asked a question as to could the trial judge re-explain provocation, murder and manslaughter and that appears at page 246. His Honour repeated directions and then referred to abnormally, page 249:

The third alternative, that is the one which refers to the ordinary person, is available to the Crown to ensure that an accused person who is abnormally or exceptionally sensitive to provocative behaviour is not permitted to escape full responsibility.

In our submission, that direction, particularly in the circumstances of this case did nothing to assist and really misled the jury as to what the nature of the inquiry was.

BRENNAN CJ: Well, your problem is not whether or not the jury would have found one way or the other. It was that the jury did not get the opportunity of finding and assessing.

MR GAME: That is right, exactly, your Honour.

BRENNAN CJ: Yes.

MR GAME: Now, this takes one then to the way in which the Court of Criminal Appeal dealt with - - -

BRENNAN CJ: Before you leave that there is one observation at page 234 that has me puzzled:

The accused claims a younger man, two-thirds of his age - - -

GUMMOW J: Yes, I could not understand that either.

BRENNAN CJ: What is the reference to two-thirds of his age. What ages were they?

McHUGH J: 22 and 36, were not they?

BRENNAN CJ: Yes.

MR GAME: He was 22 - - -

GUMMOW J: No, it is the wrong way round.

BRENNAN CJ: It is the wrong way round.

MR GAME: It is the wrong way round. He was 22, the deceased was 36. He had known the deceased for six years.

BRENNAN CJ: I mean, the accused's case here was that this was an abuse by a father figure. Is that not right?

MR GAME: Exactly, your Honour. The case that the accused was left putting was that which appears at page 234, which is an unwanted sexual advance by an older man.

BRENNAN CJ: Not just by an older man, by somebody who was in a particular relationship with him.

MR GAME: Yes, but as I said - I will be repeating myself if I say it again, but one has to bring in both sides of that particular history.

KIRBY J: What was their history just very briefly? The father had left, had he?

MR GAME: The history was he had not seen - the accused said at page - evidence came from his sister that he hated his father and he wished he was the the oldest, that he knew about the sexual assaults, that it was a matter that was talked about in the family. His mother gave evidence that he felt like killing his father for what he had done to the girls, that is Mrs Riley. Caroline Vrolyks's sister gave similar evidence. Michelle Clarkson, another sister, said the same. She said at page 124:

he would make sure he never hurt us ever again.

The accused at pages 80 to 81 - is some history from the accused in relation to this. That was some evidence that his concerns were quite current. He had mentioned it at a family wedding which had taken place a month before at which the deceased was, in fact, the organist. Now, the evidence of Cheree Warnock in relation to this is at pages 64 to 65, and what she said. It is the whole of 64 and page 65. The evidence then at page 120 line 53 is the mother's evidence in relation to it - - -

KIRBY J: But in terms of time, what was the result of this, that at age what did the father disappear and did the accused live with the deceased thereafter or - - -

MR GAME: He left the family when he was aged about - - -

GUMMOW J: Page 81, I think. Nine or 10 he says.

MR GAME: I think he was either nine or 10, yes, and the mother seems to think a little bit younger at page 120 and one sees in that passage - - -

KIRBY J: And he went to live with the deceased, did he, then?

MR GAME: No, he lived in Mudgee, but, no, he knew the deceased for six years and the deceased was a father figure to him and that appears in the evidence - - -

KIRBY J: This father figure is a sort of general description. Was he living with the deceased or not?

MR GAME: No, your Honour, but his sister said at page 69 line 40:

He always spoke very good of him. He always said that Don was always there for him if he needed someone. He always spoke good of him.

Q. Can you remember any particular things he said about him along that line?

A. He said if he ever needed anything that he only had to ask Don and he would try and help him.

Q. Did he say how he thought of Don?

A. He always said that Don was like a father that he never had, like he thought of him that way because he was always good to him.

Then over the page that night when he went out for dinner to the deceased's place, "He was in a good mood", and there was evidence from Mrs Gillies, the deceased's mother, that he gave him work, that is at page 24. The accused himself said of the deceased at page 87:

Q. Was he a good friend?

A. One of me best I suppose.

Q. Did you trust him?

A. Yes.

Q. Did you look up to him?

A. Yes.

Q. Did he give you advice about things?

A. Sometimes.

Q. Did you value his advice?

So there was evidence from the accused in relation to that and at page - - -

GUMMOW J: There was no evidence, was there, of the accused disclosing his own family history?

MR GAME: No, there was evidence that he disclosed the information in relation to his sister - sorry, there was evidence that he disclosed that he had broken up with his girlfriend.

GUMMOW J: I realise that, but in relation to his bashing and other - - -

MR GAME: There is no evidence about that question, your Honour. At page 112 line 37, he said:

That he took me trust away and trapped me, scared me.

Now, that, in our submission, is an important piece of evidence in the case.

KIRBY J: What line is that?

MR GAME: It is at line 37 and he said at 104 with respect to being trapped, lines 45 to 50:

Q. And what did you do then?

A. Kept hitting him.

Q. Why?

A. I just felt trapped, scared.

McHUGH J: That raises a question I want to ask you about. Provocation is primarily concerned about anger and resentment; self-defence about fear. To what extent is fear a relevant element on the issue of provocation?

MR GAME: Your Honour, firstly, elsewhere he did say that he was angry.

McHUGH J: I appreciate that.

MR GAME: There is a case, the name of which escapes me at the moment, which says that provocation is not restricted to anger. I am not sure whether it is Van Den Hock, but it is a decision of Chief Justice Mason in which he said it was not restricted to anger, but was restricted to responses of fear. Now, I had a feeling that was Van Den Hock, but there certainly is a decision of this Court in which that question is considered. I have read it in the last few days, I just cannot remember its name, but has been favourably to the accused's case in these circumstances.

McHUGH J: There is a passage in Glanville Williams' textbook of Criminal Law in which he says that fear can be relevant to provocation, but he does not cite any authority.

MR GAME: If I could send up a reference to that case, which I will hopefully pull out after today.

GUMMOW J: Can I just ask you a question which is out of sequence? This phrase, "in the position of the accused", does that include the circumstance here that both the accused and the deceased had been drinking for some hours - wine and then scotch? Is that all part of the position of the accused? Would you put the "ordinary person" is that position, who is slightly woozy with drink?

MR GAME: One would have to examine that quite closely, but it may be relevant in this sense, your Honour; it is not a matter that has been examined in any detail and - - -

GUMMOW J: Can you measure yourself, the self-control of the ordinary person, the ordinary person being slightly woozy.

MR GAME: The ordinary person is not slightly woozy, but the ordinary person - - -

GUMMOW J: But does that have any impact on the measure of self-control that is involved?

MR GAME: It does not have any impact on the measure of self-control, but it does have - it may have - I will not say it does, but it may have some impact on the level of the gravity of the provocation. If I could give an example: if the accused knows that the deceased is drunk and, therefore, less likely to respond, or less likely to be capable of being communicated with in the sense of understanding rebuffs; you know, "I said no", and the deceased was, shall we say, so drunk that he would not take no for an answer, then the intoxication would be part of the context.

I really put that argumentatively, your Honour, to show how it could be relevant. But the accused's own intoxication, in this case, has not been relied upon as being of any particular significance in the case. What the accused knows about what the deceased knows about the accused can be relevant. For example, the accused knew that the deceased knew that the accused would not be interested in having sex with him, or should have known it, because he had had a girlfriend until a few days before. So, the deceased's knowledge of his sexuality is a relevant matter to the level of provocation and in that - - -

BRENNAN CJ: Whose knowledge?

MR GAME: Well, the accused knows that the deceased knows about his sexuality, therefore, the accused knows that the deceased should have known better than to ask him for sex.

BRENNAN CJ: I see, yes.

McHUGH J: Van Den Hock is the case, and Sir Anthony Mason took the view that fear was a factor that could not be ignored, and in Tikos [No 1] Justice Smith, who was a great criminal lawyer, apparently also accepted it.

KIRBY J: This was a case not of assault, except in a rather minor key, but of advance, and the fear that one is talking about is the fear of, not of the physical assault, but of inappropriate advances on the part of the deceased. The fear that an ordinary person would have would not be one that would lead to this sort of a response. What I would like you to do before you are finished is to tell me what work you see those words which have been retained, "an ordinary person in the position of" do, according to your theory of the section, because I am not clear about it.

MR GAME: Your Honour, I am not sure how much further I can take that than I have, but I will attempt to do so, but firstly, with respect to actually what took place, we do not agree with the description of the activities of the deceased as being an amorous advance. First of all, he had invited him to stay the night; said, you sleep in this room, and then quite a short time later he came into the room without any clothes on, was rebuffed twice, and told once that he did not want to, that I am not like this. So there is a physical rebuff twice and there is persistent attempts to, first of all put his hand on his buttocks and then on his penis. Now those, your Honour, we would not describe as being amorous advances and it was persistent by putting his arm around him. That, in our submission, does not - - -

KIRBY J: How do you describe them? You used the words Justice Smart used.

MR GAME: I would not use precisely those words but, your Honour, it is an indecent assault, it is both a physical and a sexual assault and it is persistent.

McHUGH J: That was why I was asking you about the issue of fear, because it seemed to me that, from the accused's evidence, perhaps also from the point of view of the ordinary man, that fear of sexual assault would be a factor perhaps almost as influential as anger or resentment, in causing this accused to react in the way he did. Now do you attempt to segregate them out and say, if fear of a sexual assault was the dominant factor then provocation does not apply? Or is it sufficient that there is a combination of both?

MR GAME: Well, we would submit so, your Honour. We would submit that sorting out what is anger and what is fear is really a very difficult exercise, when - - -

McHUGH J: Well, fear and anger both release hormones which, because we are so genetically programmed, lead us to violent action.

MR GAME: This case was not a case about an accused person who had an abnormal fear of homosexual advance; this case was a very specific - it was not conducted as such, although the way in which the accused was left with the case once the family history was excluded, made it more like that kind of case, but this was a very specific case circling around that which emerged from answer 163 in the record of interview which was, as I said, the last question in the record of interview.

TOOHEY J: Mr Game, could I just seek clarification of a factual matter, although I think I know what the answer is. At page 256, line 51, it is said that:

The Crown's case at the trial was that Mr Gillies had gone to bed, highly intoxicated, that the appellant had then come into the room -

which, I take it, is the room where the deceased was. That is said again at page 292 at line 31. This is reflecting apparently the Crown's contention, but the accused's account was quite different, was it not, that the deceased had come into the room where he, the accused, was sleeping?

MR GAME: Yes, your Honour.

TOOHEY J: I take it then all that the Court of Criminal Appeal is doing is setting up what the Crown was alleging and then recounting what the accused was saying rather than that that matter had been concluded by the evidence in some way?

MR GAME: The Court of Criminal Appeal approached the case in the same way as the trial judge did on sentence, which was that the Crown had not proved its primary case but that the accused in effect had succeeded in his account but failed on provocation. So the whole of the case after trial - the focus very much shifted from the trial context "Was the accused to be believed or not to be believed?", which was one aspect of the trial, to an acceptance of what the accused said but an application of a consideration of the wrongly excluded evidence and the wrong directions to that situation. So that is really just setting up what occurred.

I think in Justice Smart's judgment there is a passage in which he said that in effect the Crown had not excluded the accused's version, and that is certainly the way in which Justice Priestley approached the question. In fact, Justice Priestley approached it on the basis that the accused must have succeeded under 23(2)(a), a matter with which I have already taken issue in argument for the reasons that I have given.

In the course of argument most of the arguments which I would seek to put have already been put, but could I take the Court fairly briefly to the judgment of the Court of Criminal Appeal.

GUMMOW J: The crucial point in Justice Priestley's judgment appears at the bottom of page 280, line 50:

It seems to me that this court should accept.....were not such -

et cetera. Then he goes on to say what is said there at line 10 on page 281. Amongst other things, you say there was not a proper examination of what is involved in the concept of "could have induced an ordinary person", et cetera?

MR GAME: Yes, your Honour. If one goes back to pages 269 to 270, which is a consideration of grounds 2 and 3, his Honour has accepted that the family history was relevant to (a) but failed to consider it at all in relation to (b), and by inference we would say excluded in relation to (b). A careful reading of the judgment shows that that mistake flows through the rest of the judgment.

There are other mistakes in the judgment, but that is the central mistake, in our submission, in the judgment which explains why none of the arguments which I have been putting to the Court this morning have had any sort of consideration in the majority judgment in the Court of Criminal Appeal. Then one goes - - -

BRENNAN CJ: To pick up the point that Justice Gummow made to you, though, evidently Justice Priestley thought that the jury had found that which appears at the bottom of page 280, but your complaint, as I understand it, is that the question was not put to the jury in the way that ought to have led them to a finding that is in accordance with the section.

MR GAME: Quite, your Honour, but also an argument which I have already put is this; that one could hardly be satisfied that the jury would have concluded that he had lost self-control as a result of provocative conduct of the deceased when the case was put to the jury by the Crown on the basis that he lost his self-control because of thoughts of his father, which is the very evidence which was excluded on that question. In a sense, the defence case was entirely turned on its head in respect of section 23(2)(a). His Honour then says at page 276, line 10:

Thus, the misdirections relating to s 23(2)(a) were irrelevant for present purposes.

That is the "must have won" on 23(2)(a) as the exclusion of the evidence and the misdirections referring to the family history, but they were not irrelevant for present purposes for reasons that I have already given. Then his Honour went on to say:

The remaining question is the effect of the error dealt with in ground 4 -

The error in ground 4, which was the second error which was first identified, which is the ordinary person being provoked to do what the deceased did as opposed to an ordinary person being provoked upon such an intent. The rest of the judgment is, in effect, an examination of that proposition. Then one sees at the top of page 277 what we submit is proviso reasoning:

no jury acting reasonably could fail to be satisfied beyond reasonable doubt that the appellant's reaction -

Then a submission is taken out of the Crown's submissions at 277, lines 15 to 25, and we would submit that to even ask that question would lead one into error - this is the Crown prosecutor's submission:

"The appellant's track suit pants were on and the jury were entitled to take the view" -

and, as we have said, they did not even get to consider it -

"that the ordinary" -

and it is that "an ordinary person" -

"even whose sisters had been sexually assaulted" -

again, that is not the issue that was addressed to them -

"would rebuff" -

and it should be "could rebuff" -

"in a manner which did not involve the intentional infliction" -

again, that is the wrong question, and that is the very error which is being addressed in that ground, which is the intentional infliction of death or grievous bodily harm is the wrong question.

That inquiry continues over the following pages, which is all an examination about the evidence relating to the circumstances of the death without any regard to the family history. Then an examination of the assault at page 280, and I have already put our submissions in relation to that, and then at page 281, lines 5 to 10:

In my view the substantial question for this court to consider in deciding whether or not the proviso is applicable is whether the appellant lost any chance of a different outcome on the s 23(2)(b) question by the incorrect ruling identified in ground 4 -

Still no mention of the problem with 23(2)(b), with the reference to the family history.

It seems to me that on the evidence the jury had before them and within the range of findings open to them on that evidence they could hardly have come to any different conclusion -

Now, again, that is a conclusion drawn on the evidence that was before the jury in relation to that issue, not the case that they got to consider. Then one goes down further in the judgment and the further error is introduced, which is this at line 35:

This brings me to the final matter for consideration in the appeal. If the incorrect ruling dealt with under Ground 4 had not been made on the second day of the trial, and the appellant's counsel had been able to conduct his case and address the jury on the footing that the loss of self-control the Crown had to negative was the loss of self-control so far as to have formed an intent to kill or to inflict grievous bodily harm upon Mr Gillies, as distinct from a loss of self-control so far as to have formed an intent to do what he actually did -

Well, that is not the distinction. The distinction is between an intention formed and an act performed. Counsel was left in the position where he had to address on the horrendous circumstances. He had to say, in effect, the ordinary person could have done the horrendous things which the accused did, which is substantially more difficult. In fact, it is well nigh impossible to put that to the jury in these circumstances. So that, in effect, in judging ground 4, Justice Priestley has overlooked the very question or has misinterpreted the very question which he was required to consider. The same again appears on page 283 of the appeal book, lines 5 to 20:

Bearing in mind the complications of expression caused by the onus of proof, what counsel would have had to say, in technical terms, was that the Crown had not proved beyond reasonable doubt that the provoking conduct could have induced an ordinary person to so far lose self-control as to form a simple intent to kill or inflict grievous bodily harm and that this was a more difficult thing for the Crown to prove than that the conduct could not have induced an ordinary person in the position of the appellant to have so far lost self-control as to have formed an intent to do the terrible things that the appellant did to the deceased causing his death.

That is the same mistake as appeared two pages before, and it misstates the error which had been identified. So, in the result the accused had his evidence wrongly excluded in relation to provocation. The jury were misdirected in relation to provocation and the jury were misdirected as to the test as to self-control, as is identified here.

The further matter in relation to those directions which is identified as a ground of appeal was ground 5, which was that the trial judge should have directed the jury in the circumstances on the ordinary man in the position of the accused, what it meant. We submit that such a direction should have been given, particularly in light of the jury's question to be redirected as to provocation, manslaughter and murder.

KIRBY J: Have you anywhere in your written submissions formulated how you say that his Honour should have directed the jury on this next phrase?

MR GAME: The short answer to that question is, no, your Honour, but we would submit that the way in which it should be formulated is very much in the way in which it was formulated in an exchange between myself and the Chief Justice and Justice McHugh earlier this morning. In essence, one takes the whole of the circumstances of the accused and then when asking oneself the question about the loss of self-control, one puts the ordinary person in that position, in that precise position. Now, as I said, the difference between that and Stingel is very much a matter of emphasis. The thrust of the direction is the same. As I said, the real difference is that one is no longer so concerned to find qualities of the ordinary person and it seems to me and I put that that is the effect of how the provision is to be interpreted.

Now, very much for the reasons that I have already given we would submit that in circumstances such as these it is not appropriate to even embark upon a proviso inquiry. The defects in the trial, in effect, deprived the accused of putting his case to the jury on provocation and, without reading from them, I would simply refer the Court to the cases of Wilde and Glennon, amongst others. Those in summary are my submissions, if the Court pleases.

BRENNAN CJ: Thank you.

TOOHEY J: But what would follow from those submissions?

MR GAME: What would follow is that - - -

TOOHEY J: And I say that, of course, having regard to the orders that you seek in the matters that are appealed.

MR GAME: What would follow is that if the appeal is upheld and if the Crown does not oppose the making of the order, we would propose that the conviction for murder be quashed and there would be a verdict entered for manslaughter.

TOOHEY J: But if that were opposed and perhaps even if it were not opposed, the Court would have to consider whether that is an appropriate order or whether there should simply be a retrial.

MR GAME: Well, I would have to accept that it is very much a matter of discretion for the Court in the circumstances of the case, but as I said, if the Court accepts that proposition and the Crown agrees, then we would advance that as the appropriate order which should be made and that the matter be remitted to the Court of Criminal Appeal for sentence on manslaughter. That is the order which we seek.

KIRBY J: Why would we do that in circumstances where, admittedly you say on a trial that miscarried in legal respects, the jury has found guilty of murder? The case is a very serious one and a person has been killed and the complaint is that the trial was not according to law. Why would it not simply be an order that the matter should be tried according to law so that a jury can pass upon the matter?

MR GAME: Well, I am not sure how helpful I am going to be, your Honour, and, as I said, it really is very much a matter of discretion and discretion in these circumstances brings into account other matters, for example, the history of the case, the fact that there was and is a serious case to go to the jury in relation to manslaughter. As I said, it is very much a matter of discretion. If the Crown consents to that order, then we would submit that that is a weighty matter that should be taken into account, and perhaps the most weighty matter.

KIRBY J: I received in the papers, I think it might have been from the library or the Registry or from somebody, the discussion paper of August 1996, Review of the `Homosexual Advance Defence', and I have glanced at that. Is there anything you wish to say about that document?

MR GAME: No, your Honour. I think the Crown - - -

KIRBY J: It makes reference to a lot of writing in Canada, the United States and elsewhere and to the large number of cases where the sort of defence that has been raised in this case has been raised in other cases.

MR GAME: Well, I think the Solicitor-General provided that to the Court. There is nothing that we would wish to say about this. The directions of the kind that are referred to would not, in our submission, be at all appropriate for a case such as this; the directions which are suggested on page 4 of that report. I should say that we have been unable to find superior court decisions in other jurisdictions which are helpful in respect of the issues which are raised by that discussion paper. We found one article which is, in fact, referred to in that paper which is worthwhile. It is a useful article. It is by J Dressler called When "Heterosexual" Men Kill "Homosexual" Men: Reflections on Provocation Law, Sexual Advances, and the "Reasonable Man" Standard - The Journal of Criminal Law and Criminology. I will not read from it but that article, we would submit, is a useful article in consideration of these issues, but apart from that, your Honour, I do not have further submissions about that.

With respect to the question of a verdict of manslaughter, Mr Molomby has reminded me that Justice Abadee sentenced on the basis of an acceptance of the appellant's own account and, in our submission, that is a material matter that should be taken into account in considering whetheror not - that is to say, the primary Crown case was not accepted by his Honour on the question of - - -

KIRBY J: But is not the judge obliged to accept the facts most favourable to the accused?

MR GAME: No, your Honour.

KIRBY J: I thought I saw that in - - -

MR GAME: That is a view of the judges - in some South Australian cases that has been accepted; in New South Wales that has not been accepted for a long time. The case of Martin is one example, O'Neill is another. The judge has to make his or her own findings on the basis of the verdict and then considering the evidence, determine for himself or herself the facts according to the criminal standard with respect to aggravating features of the crime, with respect to what are described as "mitigatory features on the balance of probabilities". That is the approach that is taken in New South Wales.

The older cases, which speak of "facts most favourable" - basis most finding to the accused has long been rejected in New South Wales. And, lastly, with respect to the question of a verdict of manslaughter, of course, there is a situation of family witnesses on both the deceased's side and the appellant's side, a number of them were called at the trial, and it would be necessary, of course, for them to go through that trauma again. Those are my submissions, if the Court pleases.

BRENNAN CJ: Thank you, Mr Game. Mr Solicitor.

MR MASON: Your Honours, I gave to your Honours' associates, just at 10 past 10, our outline of submissions.

BRENNAN CJ: Yes, Mr Solicitor?

MR MASON: Your Honours, in analysing the impact of the provocative act of the deceased upon the appellant, and the question of whether fear intruded, it is relevant to have regard to the appellant's own evidence and that evidence is clear that he perceived the advances of the deceased as being gentle. The evidence on that is at page 103, line 31:

Q. Don was being gentle with you?

A. When he touched me he was.

Page 139, line 49, in question 58:

How was he touching you?

A. I suppose it was gently but I didn't respond.

And page 115, in the evidence of the accused, in cross-examination, at the top of the page:

Q. Don was quite intoxicated that night, wasn't he?

A. That was so, yes.

Q. And quite intoxicated you still say that this man who had been friends with you over about six years, had been your confidant, had loaned you money, had never made a sexual advance - - -

KIRBY J: Where is that, I am sorry?

MR MASON: At the top of page 115:

he made a sexual advance towards you?

That is line 9:

Q. What happened to those years of friendship when you decided to punch Don so viciously?

A. Nothing.

Q. Why didn't you say, "Don, I've had enough, I'm going"?

A. I don't know.

Q. Because your experience over those years of knowing Don there is nothing to make you believe that you wouldn't have been allowed to leave, is there?

A. I suppose so.

Q. But you didn't try that, did you?

A. Not really, no.

If one applies Stingel and allows the experience of the deceased to be relevant to analysing the gravity of the provocative conduct, one cannot drift away from that experience or that perception and start speaking about hypothetical persons, how they might have interpreted this particular advance. So far as the appellant's perception, it was gentle.

BRENNAN CJ: Where does that lead you?

MR MASON: Well, I just say that in response to some of the remarks of my learned friend where there was some discussion about the relevance of fear and whether fear could be pertinent to provocation. There is no evidence that it would be in this particular case.

McHUGH J: Yes, I know, but the answers about "gently" are taken out of context to some extent because at the bottom of page 134 and over to 135 the accused said:

He started grabbing me with both hands.....I pushed him away. He started grabbing me harder. I tried and forced him to the lower side of me.

et cetera.

MR MASON: Yes.

McHUGH J: Then in the record of interview at page 139, the bottom of the page:

I suppose it was gently but I didn't respond.

He was then asked:

On what part of the body did he touch you?

A. On my side that's when I pushed him away.

Q. Did he touch you anywhere else after that?

A. Yes, he grabbed me by both arms and pulled me towards him -

et cetera, et cetera:

that's when I got aggressive and hit him.

So, in its context he may have been gentle to start with but then there is this pulling towards him, he pulled him close to him so that there was no room in between them, and that is when he got aggressive.

MR MASON: I do understand, with respect, what your Honour is putting to me, but it remained in the context of an amorous, not a physically, aggressive approach.

BRENNAN CJ: When you say "amorous", you mean sexual?

MR MASON: I mean sexual.

BRENNAN CJ: Yes. Let us not make too close a - - -

MR MASON: I was using Justice Priestley's words; I accept sexual.

McHUGH J: It has been running through my mind throughout this argument the position of a woman in this whole situation, and I do not think you can distinguish between either case either in terms of fear, in terms of sexual assault. It is a sexual assault. If a woman was in bed in these circumstances and a male got in bed with her and she pushed him away, I would not have thought you would talk about it as being amorous.

MR MASON: Sexual, but the case that this appellant put was not the reaction to this per se, but the reaction having regard to his own particular trigger, which was the family history which he believed had occurred.

BRENNAN CJ: Mr Solicitor, what you must be saying is, if I understand it correctly, that given the circumstances of what happened that night and given the associated background of the accused and the association between the accused and the deceased, no jury properly performing its duty ought reasonably to have found provocation.

MR MASON: Yes. That is certainly the primary way we put it. Indeed, it should not have gone to the jury on provocation.

BRENNAN CJ: Yes. If you do not succeed on that, then what do you say then?

MR MASON: Then I say there is still work for the proviso to do, and the Court of Criminal Appeal applied the proviso correctly, and that this Court cannot simply superimpose its opinion as to how the proviso should be applied. It is a House v The King situation.

BRENNAN CJ: If it is right that the jury ought to have been allowed to evaluate the seriousness of the provocation by reference to all of those factors and they were not so allowed, what room is there for the proviso to operate in?

MR MASON: We dispute that Justice Priestley did not have regard to all of those factors in the paragraph (b) analysis.

BRENNAN CJ: We are not concerned so much with Justice Priestley. We are concerned with what happened at the trial.

MR MASON: I appreciate that, yes.

BRENNAN CJ: If it be right to say that the jury were not allowed to evaluate the entirety of those factors in determining the gravity of the provocation, what work is there for the proviso to do?

MR MASON: And assuming there is evidence of provocation to go to the jury.

BRENNAN CJ: Assuming there is evidence of those factors.

MR MASON: Yes. I submit there is still a capacity for proviso to apply, that is the occasion for considering the application of the proviso, but the appellate court still has to determine the issue of the inevitability of the conviction of - - -

BRENNAN CJ: So that even though there has been a trial which has not been in accordance with law, there is room for the proviso to have operated?

MR MASON: The question would come down on this basis to, "Is the proviso always excluded because there is a wrongful exclusion of evidence?"

BRENNAN CJ: The answer to that is obviously no, but the question - and I take you back to my first question to you - if you do not succeed in your argument that the jury, if it had considered all the relevant matters, must have, if they acted reasonably, refused to find provocation. Now, unless you succeed in that, surely there is no work for the proviso to do.

MR MASON: Well, it would be very difficult to see there is work in that situation, yes.

BRENNAN CJ: Yes, and so our real concern is about whether or not in all the circumstances one can say that the jury acting reasonably ought not to have found provocation.

MR MASON: Yes, I do not make the ultimate concession that your Honours are asking me to do, but I do see there is very little room for the proviso, but I do submit it is open, even in that situation.

BRENNAN CJ: I see.

MR MASON: The way, as it were, the defence case would wish the Court to approach provocation would be to concentrate very much more on the trigger, namely, the family history of the particular accused rather than the provocation, although both are necessary in order to engage the defence of provocation. I say both are necessary because the New South Wales section requires the deceased to have participated in the conduct, in other words, requires the loss of self-control to have been induced by conduct of the deceased. Now, Professor Fisse in Howard's Criminal Law, the fifth edition, at page 97 suggests that in this respect perhaps the statutory defence in New South Wales goes beyond the common law.

We accept, as did Justice Priestley, that, in effect, paragraph (a) has been satisfied or, to put it more correctly, the Crown did not establish the contrary of paragraph (a), and so it is accepted that there was a loss of self-control induced by conduct of the deceased, but that is only paragraph (a). May I just add to the very last line of page 1 of our outline of submissions, the page reference in Masciantonio's Case, it is at page 68. The reference is to the passage in 183 CLR page 68 when, in the context of whether or not the matter should have been left to the jury, the majority Justices referred to the fact that trial judges may tend to lean towards leaving provocation to the jury, but said that when the matter goes on appeal:

An appellate court must apply the test with as much exactitude as the circumstances permit.

So, the point we seek to make is that the mere fact that Justice Abadee allowed provocation to go to the jury is not to be taken, as it were, an immovable given so as to prevent us seeking to make good the proviso argument on the basis that the matter should not have gone to the jury in the first place.

KIRBY J: Can I just ask you on that: was it fought at trial on the basis that the accused's statements about the advances of the deceased might not have been proved? I mean, in these cases one never has the version of the deceased. Was that in issue at the trial, or was it accepted that some form of advance occurred?

MR MASON: No. The Crown actually put to the accused, in cross-examination, that the whole thing was a made-up story - - -

McHUGH J: The Crown case was one premeditated murder.

MR MASON: Yes.

McHUGH J: Based on the fact that the accused had told somebody the day before that he was going to kill somebody.

MR MASON: Yes, and there was cross-examination where it was squarely put to the accused that it did not happen this way at all.

KIRBY J: So that one possible interpretation of the jury's verdict is that the jury accepted that the Crown had proved that beyond reasonable doubt?

MR MASON: Yes. May I just, while referring to Professor Fisse's work - - -

McHUGH J: The deceased was stabbed in the back, was he not?

MR MASON: Yes, there were many punctures and then stabbings - I think 10 stabbings - in the back. Professor Fisse, at page 90 of - - -

KIRBY J: In the context of a personal relationship, that may tend to support the accused's case though, may it not, that - I do not want to speculate, it is to the jury to sort these things out, but I think that the multiple nature of the killing may be more indicative of some sort of frenzy of reaction rather than simply a killing in the ordinary old-fashioned sense.

MR MASON: Yes, and that is really why, in our submission, Justice Priestley was correct in saying that paragraph (a) was clearly established, having regard to the nature of the killing and this speaks - - -

KIRBY J: The trial judge also accepted the accused's version for the purpose of sentencing, we were told.

MR MASON: Yes, yes, that this was a "loss of control" situation. The real question was paragraph (b).

McHUGH J: One of the suspicious features of the case against the accused is that the deceased was killed in his bedroom in which the accused claimed that he had been sleeping.

MR MASON: Yes.

McHUGH J: It seems very suspicion that, having invited somebody to stay overnight, there being a spare bedroom, the deceased would move into the spare bedroom and invited the accused to sleep in his room.

MR MASON: Yours Honours, section 23 varied the common law of provocation - - -

GUMMOW J: You were referring to Professor Fisse.

MR MASON: Yes I was. I was referring to Professor Fisse at page 90, as well as the page I had previously gave - - -

GUMMOW J: Page 90 of what?

MR MASON: Page 90 of Professor Fisse, Howard's Criminal Law 5th edition, page 90, footnote 25, where it is suggested that 23(2)(b) echoes:

a recommendation in Great Britain -

of the -

Criminal Law Revision Committee, Fourteenth Report, Offences Against the Person, para. 81.

And that is on the question of whether the intent in (b) is limited to an intent to kill or inflict grievous bodily harm, as distinct from the intent to do the very killing that occurred.

KIRBY J: Is that the report that I see on your - - -?

MR MASON: Yes, it is.

KIRBY J: That may be quite hard to get.

MR MASON: It is from the High Court library.

KIRBY J: Is it? Well, it may be hard to get back.

MR MASON: I promise I will return it.

KIRBY J: Very well.

MR MASON: Your Honours, the particular question that was rejected when Justice Abadee made the ruling that he did was a question going to the truth of what the father had done. That is at page 29 of the appeal book, line 28. There was also a rejection of an attempt to tender some criminal record of the father. After having given the ruling, Justice Abadee permitted cross-examination of the two sisters, and of the appellant's mother, about discussions they had had with the appellant in which what had said to have been done by the father to the three women was discussed with the appellant. That is at pages 63 and 64 in the judgment of Mrs Warnock; 119 and 120, the evidence of Mrs Riley, the mother of the appellant; and 124, in the evidence of Mrs Clarkson, the other sister.

Your Honours, it would appear - I am now on page 3 of the outline of our submissions - that my friend abandons ground (c), and so I will not say any more than is written in paragraph 6 about that. Ground (d) is the complaint about the absence of a direction of the meaning of "in the position of the accused". We remind the Court that in Baraghith's Case 66 ALJR 212, in this Court, in the course of refusing special leave, Justices Deane, Toohey and Gaudron approved the interpretation of 23 that it was given by the Court of Criminal Appeal in Baraghith, and at page 212, left-hand column, at the bottom:

The majority of the Court of Criminal Appeal correctly interpreted that phrase -

"in the position of the accused" -

consistently with the judgment of this Court in Stingel -

and we have set out, at the top of page 4 of the outline of the submissions, the passage from Justice Samuels' judgment in Baraghith in which, in effect, it was said that the reasoning in Stingel applies, notwithstanding the addition of these words.

KIRBY J: That appears to give full force to those words "ordinary person", but the question is whether it gives adequate force to "in the position of the accused". We cannot ignore those additional words, they are in the statute. Unpleasant as the task of reconciling statutory directions which appear to point in opposite ways, and which are to be used in jury trials where ordinary citizens are involved and a nice distinction should, if possible, be avoided, we just cannot overlook that this was deliberately an amendment of the Act.

MR MASON: What those words do, in my submission, is indicate, as does the common law, that the gravity of the provocative conduct is to be viewed having regard to the position of the accused, including the accused's history. But then one has to apply the objective test, which the "ordinary person" clearly requires to be done, in this normative judgment by the jury in which they have to determine whether an accused who has, with his or her personal characteristics, received this provocative conduct from the deceased, would that person have so far lost self-control to have formed an intent to kill or inflict grievous bodily harm upon the deceased. It is not upon the father, it is upon the deceased.

GUMMOW J: But do you see that as any different from Mr Game's ultimate formulation of his position?

MR MASON: No, I do not think there is any difference between us in our submission about the principle.

BRENNAN CJ: There was one verbal difference, I think, and that is that Mr Game was speaking about the gravity of the provocation; you spoke about the gravity of the conduct.

MR MASON: I had not intended to draw any distinction.

BRENNAN CJ: No.

MR MASON: But it has to be conduct from the deceased.

BRENNAN CJ: Yes.

MR MASON: And it has to be a hypothetical intention to kill or inflect GBH upon the deceased. It might be one thing to say that conduct from the deceased could have provoked a person to have killed the father, but that is not the question.

Your Honours, then in addressing the issue of the proviso, and I come to paragraph 9 of our outline, your Honour Justice McHugh this morning suggested a paraphrase for the paragraph (b) issue, that namely, the ordinary person who has suffered the sting of the particular conduct - I think was the word you used - I would respectfully agree, if I add, from the deceased, and again it has to be linked that way.

Our submission is that the conduct of the deceased, the sexual advance, was relevantly unrelated to the particular position of the appellant. Clearly there is a normative judgment there; in one sense it was related because it was the trigger. That is paragraph (a) has been satisfied, but there still has to be a relevance, in my submission, in order to engage paragraph (b) of the section. Here it might have been different had the provocation been in the form of taunts aimed at the appellant's inability to deal with his father or, if the appellant's belief had been that the deceased had molested young girls, but the conduct of the deceased was a homosexual advance in a situation that did not involve violence.

It was one made on a trusted friend, but we would not agree with the expression "father figure". There may be elements of degree in this, but if I could refer the Court to the evidence at 77, 87 and 133, which is particularly the evidence of the accused about his perception of the relationship with the deceased. One can put it as a trusted friend but no higher than that. The ages were not that different, 22 to 36. At page 77, lines 17 to 35, evidence of the sort of things that they did, swimming, driving, drinking, worked for him. At page 87, line 28:

Q. Was he a good friend?

A. One of me best I suppose.

Q. Did you trust him?

A. Yes.

Q. Did you look up to him?

A. Yes.

Q. Did he give you advice about things?

A. Sometimes.

At 133 in the record of interview, when asked, at the top of the page:

What is your association with that person?

Perhaps this is the most unprompted response. The association volunteered that that was not that of a father figure, and certainly nothing that engages the type of concern that arose from the conduct of the appellant's father towards his sisters.

McHUGH J: Mr Solicitor, you have got to really take into account his answer to question 163, because that is his case. That is how he makes it relevant on page 150:

I tried to take it as a funny joke but in relation to what my father had done to four of my sisters it forced me to open more than I could bear. It hasn't changed the fact to what had happened to my family but I couldn't stop myself or control what went through me.

MR MASON: That goes to the loss of control. It does not cast any light upon this normative objective question of, "Was there a relevant relationship between the conduct of the deceased that it was capable of acting as a relevant trigger in the light of that history"?

McHUGH J: It must be, surely, because this advance is made to this particular person with those sensitivities and he sees the advance through the spectacles of what his father had done to his sisters, and when he evaluated it in those terms, he just could not stop himself, according to himself.

KIRBY J: I understood you to be at this stage simply meeting the suggestion that this man was a father figure; not dealing with the quality of the provocation, but to the nature of the relationship.

MR MASON: I was looking, particularly with paragraph (b) in mind, at whether the conduct of the deceased - in this case, as far as the deceased was concerned, it was the homosexual advance that was made in those circumstances, whether that conduct was such as could have induced an ordinary person in the position of the accused - and I am accepting for the position of the accused one has regard to how this particular accused with his life history would have regarded the gravity of what happened. I still submit that there is just missing a relevant link between the gravity of a homosexual advance and the life history of this particular accused. Certainly, there is the link that he did lose self-control because of it but something more is required for paragraph (b).

BRENNAN CJ: If you have got past history which has revolted the accused of sexual abuse by a person in a trusted relationship, and you then have an act of sexual abuse by a person in a trusted relationship, do you not then have that nexus?

MR MASON: Obviously, if one puts it at that level of abstraction the answer is yes, but if one looks at the particular facts, the trigger from the appellant's point of view was heterosexual upon young children or violence upon the mother. The conduct of the deceased was homosexual and non-violent and "I am not the sort of person who does that", and alcohol. That is the other thing I want to put into it.

BRENNAN CJ: At this stage of the exercise it is a question of how grave a provocation was received by the accused.

MR MASON: Yes, the particular accused.

BRENNAN CJ: Then we come to the question of whether or not the ordinary person received in that.

MR MASON: Yes.

BRENNAN CJ: Now, why is it that one is not faced with the situation that those are the factual backgrounds and you have got the answer at page 150 to indicate the severity of the provocation.

MR MASON: Because (b), when it speaks about conduct that could have induced, has - - -

BRENNAN CJ: Conduct that could have induced an ordinary person.

MR MASON: Yes, could have induced an ordinary person with the life experience of this person, using that - - -

BRENNAN CJ: Who has received provocation of this degree.

MR MASON: Yes. I submit that the type of conduct of the deceased was so relevantly distant from the bad experience the appellant had of his father that it could not have induced - there is not evidence that it could have induced in the sense of putting it to the jury, an ordinary person with those experiences to do what he did and to do it to the deceased. Again, I emphasise those words.

KIRBY J: I think there are two other distinguishing factors. One is that it happened in the home and to genetic relations in the most trusted of all relationships. Two, as I understand it, with the sisters, it involved a full sexual act, whereas what was described here, even if described as sexual, was simply an advance; it was not technically a sexual assault.

MR MASON: It was a prelude to a sexual conduct, presumably. I think it was interpreted as a prelude to something more.

McHUGH J: Under the old statutes the deceased, on the accused's version, would have been convicted of indecent assault or indecent dealing, would he not?

MR MASON: Yes, but not further than that. Your Honours, we accept in paragraph 10 a distinction that the Privy Council drew in Luc Thiet Thuan (1996) 3 WLR 45 in that it is not a question of getting into the mind of the deceased. A deceased person can, unbeknowns, be dealing with someone with an eggshell sensitivity. We accept that that does not remove the situation. At page 59G - - -

KIRBY J: Where is the statutory provision referred to, because that is the source of the difficulty in this case?

MR MASON: Section 3 of the Homicide Ordinance. There is description of it at page 49. At page 59G Lord Goff said:

There is however one point in the reasoning of the Court of Appeal to which they wish to refer, viz that it is necessary for the provocation to have been directed at the relevant characteristic of the defendant. Their Lordships accept that, in the great majority of cases in which a characteristic of the defendant is relevant to the gravity of the provocation to him, the provocation will in fact have been directed at that characteristic, as where it is the subject of taunts by the deceased. But they wish to observe that this need not always be so, for there may be cases in which, for example, previous events mislead the defendant into believing that an innocent remark by the deceased was so directed when in fact it was not. For this reason, the requirement may be misleading.

They are not, I trust, falling into that error, but we nevertheless maintain the lack of fit and submit that the conduct of the deceased was relevantly unrelated to the particular belief of the appellant, the particular situation or circumstances of the appellant.

GUMMOW J: The text of section 3 is at page 62.

MR MASON: Thank you, your Honour.

KIRBY J: That is still a fourth version. That is what a reasonable man would do and I think this Court has drawn the distinction between the reasonable man and the ordinary person.

MR MASON: An ordinary man, yes. Your Honours, if one accepts that Stingel is applicable and paragraph (b) requires this normative judgment of whether something would have induced an ordinary person to have done something or to have formed the particular intention, then one has to accept that there will be cases where all that is present is a lack of self-control and a lack of self-control which, though unlocked by the conduct of the deceased, nevertheless does not satisfy the objective standard of paragraph (b) and its common law or Code analogues and the reason for the objective test are principles of equality before the law and individual responsibility and another way of looking at what I have described as the lack of fit, the relevant unrelatedness, is to say, as we submit, that here there was nothing beyond a trigger which unlocked the subjective lack of self-control which the hypothetical ordinary person is meant to have under paragraph (b).

In paragraph 12 we have endeavoured to state the proposition in language appropriate to a proviso, but nevertheless the language that was applied by this Court in Stingel's Case where, as your Honours will recall, the issue was not the proviso, but whether or not the matter had been wrongly kept from the jury, but we would submit that the language is appropriate. There is no reason why the approach that was taken there cannot be applied in the application of the proviso.

GUMMOW J: How does one find this hypothetical ordinary 22 year old? What are we talking about. Who is this creature? How is this person located? What is the educational level of this person?

MR MASON: Well, that is the matter of judgment which, of course, the jury makes or is required to make under paragraph (b).

GUMMOW J: Yes, I know that, but how does one go about it, as an intellectual exercise, other than by taking some standard from one's own predilections and beliefs?

MR MASON: I am not sure there is any better way to do it.

KIRBY J: I think Justice Windeyer, in a case, said that an examination of the cases shows that what constitutes, or is taken as constituting provocation by juries, varies over time, and maybe that is the wisdom of the jury that is committed to them, but my problem is, how it is committed to them and what a judge should instruct them, given the language of this section.

MR MASON: Well, if the instruction is along the lines of Stingel, namely that the individual circumstances are relevant to interpreting the gravity of the provocative conduct, then one is capable, as well as juries are, of then applying this objective test, and there is nothing about section 23 which creates any additional problem to the - - -

McHUGH J: Well, there is a difficult problem in this area, as well, is there not? Is the ordinary person sexless or is it a male, in this case; is it a heterosexual male, homosexual male, or some amalgam, I mean?

MR MASON: Yes. The majority in Stingel, I think, probably gave an answer to those questions in that it is some hypothetical person who does not have those individual characteristics of gender sexuality. The only relevant characteristic is age.

McHUGH J: But in this context, the question becomes meaningless, does it not?

MR MASON: Not meaningless, but very broad.

McHUGH J: It may not be.

KIRBY J: It sort of allows the jury to look about them, to think of their own experience, to think of their own reaction as members of the community and to consider what they, on behalf of the community, say to this sort of behaviour.

MR MASON: It clearly is something located in this time and this place but, yes, it is ultimately a very broad judgment that is conferred upon the jury to determine this.

McHUGH J: It is all right, because you have got the jury, there is a cross-section of views, but what about the trial judge? How does the trial judge determine whether there is an issue to go to the jury or a Court of Criminal Appeal?

MR MASON: One is tempted to give the answer of the flippant district court judge. He or she does the best he can. There is nothing peculiar about this aspect of the statute that takes it out of provocation provisions generally. It is well accepted that there may be cases where it is not proper to put provocation to the jury, just as the evidence on self-defence may be so weak that it is not proper to put it to the jury.

KIRBY J: The theory that you are putting forward is conformable to what the Court said, refusing special leave in Baraghith and what Justice Samuels said, which was there confirmed, and I think there is some proposition, is there not, in the Court that where it is permissible in the language of the Codes and the statutes, it is desirable that throughout Australia there should be common principles, at least in matters of common application such as this defence?

MR MASON: There are statements to that effect in Stingel and Masciantonio, yes.

BRENNAN CJ: Mr Solicitor, in responding to the question of how this test is applied by trial judges or Courts of Criminal Appeal, the question must be whether any jury properly instructed could, is that not so?

MR MASON: Yes.

BRENNAN CJ: And so the question is not whether the trial judge or the Court of Criminal Appeal forms a view itself as to the sufficiency of the evidence, but whether a jury could form the view of the evidence as to its sufficiency?

MR MASON: I think that probably comes back to the matter that your Honour was putting to me earlier as to whether the proviso is necessarily confined to a situation where there is no evidence of a situation.

BRENNAN CJ: No, not no evidence; no evidence on which a reasonable jury could. That means that the trial judge must abstract from his or her own views and consider the breadth of views that are current in the community, and the breadth of values that are current in the community, in order to determine whether the collective wisdom of the jury might attribute to the notional ordinary person a particular level of self-control.

MR MASON: And this is a "could" upon a "could" - - -

BRENNAN CJ: "Could" upon a "could", it is.

MR MASON: - - - because of the language of paragraph (b), yes, I accept that. But that is only, as it were, part of paragraph (b). The hypothetical question which the jury and, at an earlier stage, the judge has to ask is could the deceased's conduct have induced an ordinary person in the position of the accused to have so far lost self-control as to have formed an intent to kill or inflict grievous bodily harm? The emphasis I put at this stage is upon the intent. It is not the conduct that occurred, it is the intent in the appellant's mind in response to the actual conduct of the deceased.

Would an ordinary person with that life experience have formed the intent to kill - and one would, we would submit, confidently say no - to inflict really serious injury? That is the more difficult issue. We submit that Justice Priestley was correct. Alternatively, he was within the range within which he should not be disturbed as having drawn the distinction between responding with a slap or a punch, and responding with conduct which intended to inflict grievous bodily harm.

Now, it is true that a punch can accidentally inflict grievous bodily harm, but paragraph (b) requires the jury or the judge to get inside the mind of the hypothetical respondent to the deceased's conduct and ask, "Would that person have formed the intent to inflict really serious injury in response?" Our submission is that Justice Priestley was correct in saying that, even if one brings in the life history of the appellant, the answer is no. My learned friend argues that Justice Priestley himself put out of his mind the life history of the appellant in addressing paragraph (b). We would dispute that by reference to page 277 of the appeal book, the passage where the Crown submission is set out at line 15, because there there is reference to one whose sisters had been sexually assaulted by their father and it is very clear that his Honour is in paragraph (b) country because, if one looks at the next sentence:

It was further submitted that if the appellant had in fact lost his self-control as a result of Mr Gillies' conduct, (as I have made clear, I think the appeal should be dealt with on this basis) that merely showed -

et cetera. So his Honour was, in effect, reiterating what he had said at page 275, that the appellant had passed paragraph (a) and the whole question was really paragraph (b). So his Honour is indicating, and there is no reason to - the onus is very much on the appellant to argue otherwise, in our submission, that somehow or other Justice Priestley has put out of his own mind the matter he had earlier dealt with when he said that Justice Abadee had erred in excluding this conduct. He said he erred and, in my submission, it would not lightly be found that Justice Priestley then fell into the same error.

The passage at 277 makes plain that he did not fall into that error when he was addressing the issue of paragraph (b) and he correctly posed the critical issue at 281 line 29 and correctly found it, in our submission, when he said that:

I do not think however that the ordinary person could have been induced by the deceased's conduct so far to lose self-control as to have formed an intent to kill or inflict grievous bodily harm upon Mr Gillies.

In the previous sentence he had distinguished between the lesser response of perhaps with blows, but not blows with intent to inflict grievous bodily harm.

The second error that is said to taint the application of the proviso in Justice Priestley's reasoning is the passage at pages 281 and 2 where, in the way his Honour dealt with ground 4, it is said that his Honour did not fairly apply the proviso. This was the ruling that had earlier been given in the trial that the intent called up by paragraph (b) was an intent to perform the very act that the appellant inflicted upon the deceased whereas the statute requires the intent of the hypothetical ordinary person to be to kill or inflict grievous bodily harm.

BRENNAN CJ: Mr Solicitor, I am sorry that it is necessary to adjourn at quarter to 1 this afternoon, so I am afraid we will have to continue this argument at quarter past 2.

AT 12.44 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.20 PM:

BRENNAN CJ: Yes, Mr Solicitor.

MR MASON: Yours Honours, before lunch, when asked to indicate what directions could be given to the jury to assist them in determining what is an ordinary person, I gave an answer, in effect - well, tell them - it is difficult to be very helpful. Can I remind the Court of what was said in Stingel 171 CLR at 327 and 328, where the Court warned against an instruction that the jury be told to put themselves, as the embodiment of the ordinary person, in the accused's shoes, and it was stated, about 10 lines from the bottom of the page, that:

While such an instruction may not involve any misdirection or error when read in the context of a particular summing up, it seems to us that it should be avoided. True it is that the jury, viewed collectively, can be seen as representing the ordinary or average member of the public. To instruct the jury to put themselves in the shoes of the accused for the purpose of determining whether the wrongful act or insult was of such a nature as to deprive an ordinary person of the power of self-control could, however, involve the danger that it might be construed by an individual juror as an invitation to substitute himself or herself, with his or her individual strengths and weaknesses, for the hypothetical ordinary person. The result could be to displace the objective standard by the particular juror's subjective view of his or her personal power of self-control -

Perhaps it is a little like "beyond reasonable doubt". It is one of those statements that cannot properly be exegeted without doing harm to the very point that is being put.

Your Honours, I sought also before lunch to make good the submission that Justice Priestley clearly had regard to the wrongfully excluded material about the personal history of the appellant, when dealing with paragraph (b). There are two other passages that make this proposition good, in my submission, at page 276, lines 10 to 14. Line 10 shows his Honour concluding his dealing with paragraph (a) and then saying:

The remaining question is the effect of the error dealt with in ground 4, which was relevant to the issue raised in paragraph (b).

And then, at the top of page 277:

The Crown relied on the words of Stingel at 336-7, and said that no jury acting reasonably could rail to be satisfied -

et cetera, clearly the language of (b), and it is in that context that the particular submission is recounted.

KIRBY J: Is there any clue to the meaning of the words "an ordinary person in the position of the accused" in the word "position"? It cannot mean just whether the accused would have been induced, because otherwise you would not have needed the full phrase, but what do the words "in the position of" mean?

MR MASON: My submission is that they mean having received a provocation from the deceased with the gravity that this particular accused would have seen that provocative act. It is not just looking at the physical position of the accused, but it is concentrating upon that person's response to the perception of the gravity of the act of the deceased which is said to be the provocative act.

TOOHEY J: When you say "that person", Mr Solicitor, to whom do you refer? Do you mean the accused or the ordinary person in the position of the accused?

MR MASON: The latter, your Honour.

TOOHEY J: It would have to be, would it not?

MR MASON: Yes.

TOOHEY J: Otherwise it would simply elide - well, it would not completely elide (a) and (b) but would remove the distinctiveness of the tests.

MR MASON: Yes, I accept that. Your Honours, in paragraph 4 we put the submission that the principles in House v The King apply. We looked through discussion by this Court, an application by this Court of the proviso and we have been unable to see anywhere where this issue has been addressed one way or the other. The Court has spoken about perceiving error in the way the proviso was applied in the court below, but exactly, as it were, what glasses this Court puts on in order to perceive error has not, to our knowledge, been analysed.

Our submission is that the issue that is involved in the proviso is of such generality and clearly embodies value judgments that even though one might not call it a discretionary matter, that the House principles are not confined to discretionary matters. This would be the sort of situation that would pre-eminently attract those principles, and that it would not be enough for this Court to say, "Well, we would have applied the proviso differently." It would have to be satisfied that there was an error in the way it was applied.

BRENNAN CJ: But is there not a very clear principle that unless it can be said that the accused has not lost any reasonable opportunity of acquittal, there is no occasion for the application of the proviso? That is Mraz v The Queen, is it not?

MR MASON: But the proviso is expressed in terms of whether there has been a substantial miscarriage of justice, and the Mraz test is a means of determining whether the proviso has been engaged.

BRENNAN CJ: That is right.

MR MASON: But it is not a substitute for the language of a statute. More importantly, it does not convert what is a very general value judgment into the type of determination that does not attract the House principles.

BRENNAN CJ: But you cannot change what is, in substance, a quite understandable proposition into something that is no more than a discretion by invoking House. I mean, if you have got a situation where there is no substantial miscarriage of justice, the opposite of that is the loss of an opportunity of acquittal by reason of an error of law. It is as simple as that, is it not?

MR MASON: Well, certainly as those words are exegeted in Mraz's Case, I accept that.

BRENNAN CJ: But leave Mraz's Case aside, as a matter of understanding of the principle it is correct, is it not?

MR MASON: Yes, it is, but to talk in terms of loss of a chance, inevitability of conviction when ex hypothesi there has been a misdirection or a wrongful acceptance or rejection of evidence and to do so in the context of a statute whose bottom line is "Has there been a substantial miscarriage of justice?" is, in my submission, to attract the principles and the sub-submission is that those principles are not confined to truly discretionary judgments. I am not saying that there is an element of pure discretion or even judicial discretion but I am submitting that there are elements of very broad judicial judgment in which minds clearly would and may differ. The passage we cite from Norbis [1986] HCA 17; 161 CLR 513 at 518 and 519 expresses the principle as we understand it and submit it, that the House principle is not confined to discretion per se but extends to matters of general judgment. Even though they can be expressed in terms of rules or subrules such as you might describe the Mraz exegesis as a subrule, nevertheless the ultimate question attracts the principle, in our submission.

TOOHEY J: It cannot be a matter of discretion, can it, whatever it is?

MR MASON: No.

TOOHEY J: I mean, it is a matter of evaluation.

MR MASON: I agree with that.

TOOHEY J: I say that having regard to the language of the relevant statute because - is it section 6?

MR MASON: Section 6 of the Criminal Appeal Act.

TOOHEY J: Yes, subsection (1) only permits the court to dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.

MR MASON: Yes.

TOOHEY J: So that might be a stronger test perhaps than in some other statutes; it is just slightly differently worded.

MR MASON: Yes, but to say that it is not discretion - perhaps I could read the passage I had in mind from [1986] HCA 17; 161 CLR 513 where, in the joint judgment of Justices Mason and Deane, their Honours said:

The sense in which the terms "discretion" and "principle" are used in these remarks needs some explanation. "Discretion" signifies a number of different legal concepts -

And reference is made to the first edition of Rosemary Pattenden's book -

Here the order is discretionary because it depends on the application of a very general standard - what is "just and equitable" -

In my submission, the proviso language is a very general standard quite reminiscent of just and equitable.

TOOHEY J: Is that in relation to the same statute?

MR MASON: No, Norbis is not dealing with section 6.

TOOHEY J: No, we are talking about family law.

MR MASON: It is a family law case, yes. But I am submitting that the concept of what is just and equitable is a very general standard, as is section 6, the proviso language. It is described by their Honours as:

a very general standard.....which calls for an overall assessment in the light of the factors mentioned in s 79(4) -

of the Family Law Act -

each of which in turn calls for an assessment of circumstances. Because these assessments call for value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right, the making of the order involves the exercise of a judicial discretion. The contrast is with an order the making of which is dictated by the application of a fixed rule to the facts on which its operation depends.

KIRBY J: But I understood that the reason why this Court has repeatedly - and Wilde is a good example - taken a very vigilant approach is that there is an important distinction between a family law evaluative decision and one which affects the liberty of an individual, as in this case, and that is why this Court in a number of recent decisions, including Wilde, has been really very vigilant against the risk of the miscarriage of the evaluative decision, because it does not just result in funds or money or even reputation. It involves liberty.

MR MASON: I accept that but I do submit that it would appear that the issue of principle which I am seeking to raise has not been addressed by the Court. I may be wrong, but on my reading of the authorities the Court has applied the proviso according to the High Court's lights without making very clear whether the error that is detected below is a House error or just a difference of opinion by the superior appellate court. What your Honour says is correct. There has been no express distinction between the family law concept and this, but I am seeking to argue that they are applicable.

KIRBY J: You say go back to the basic principle. This is an evaluative statutory provision. It should be given the same cautious approach as any other one.

MR MASON: Well, not cautious approach. It is just the application of principle of appellate judging.

KIRBY J: Yes, but amongst the House principles is the one that the exercise of the evaluative discretion is so unreasonable as to require the intervention of the appellate court.

MR MASON: Yes, but the fact that it is an appellate court that only takes up some cases and not others through the special leave process perhaps is an additional reason lest it become just a matter of good fortune that you have a case that attracts a second guess on the proviso and you have one that does not.

BRENNAN CJ: That seems to me to be putting a miasma over what ought to be quite clear categories of reference. If you understand that the relevant question in cases such as the present is whether a reasonable jury could, properly directed, come to a particular view, then it is for the appellate court to say whether or not, on the evidence, a reasonable jury could come to that view. Admittedly, that may involve some degree of assessment, or evaluation if you like, of the evidence, but once that is done by the appellate court, it does not seem to me that there is the slightest room for any discretionary exercise.

MR MASON: Your Honour, I agree with that, but what I do not agree is that, therefore, House does not apply.

BRENNAN CJ: Then if House does apply, you must be prepared to say that the view which the appellate court forms, that is, that the reasonable jury could have found a verdict, or must have found a verdict, is one which, having been formed by the appellate court, must be denied by the appellate court for the purpose of allowing the House Case to have room.

MR MASON: Of course, there are the two appellate courts. It is a question of what test this Court applies in reviewing the way the appellate court below has applied the proviso. If one uses the description of the proviso in terms of, would it have been inevitable that a jury, properly instructed, would have found guilt notwithstanding the error, then there are elements of broad judgment, in my submission, which are within the principle expressed in Norbis.

Two remaining matters, your Honours. The discussion paper to which the Court was given reference was almost entirely for the purpose of giving the Court a reference to other cases in which some of these issues have been raised and a bibliography. There are some proposed judicial directions referred to in pages 4 and 5 in the executive summary.

BRENNAN CJ: Why should we have reference to this document? What is this document?

MR MASON: It is a discussion paper issued by the Criminal Law Review Division of the Attorney-General's Department of New South Wales discussing and evaluating section 23 in relation to what is described as the "Homosexual Advance Defence" and the phenomenon of the "Homosexual Advance Defence".

BRENNAN CJ: In other words, taking it away from the specific facts of each case and categorising them as a general category of defence.

MR MASON: As a category of cases within the concept of provocation that have been identified by scholars and judges as forming a subset.

KIRBY J: I think these have been the subject of a lot of writing in the jurisdictions, one of which was handed up to us by Mr Game this morning.

MR MASON: Yes, that was the purposes.

KIRBY J: Is there any suggested direction there - I have only glanced at this - that helps it all in an attempt to - - -

MR MASON: There are some directions on pages 4 and 5 in the - - -

KIRBY J: I realise that, but do they really deal with the question that is before us, in the position of the accused?

MR MASON: No, they do not, no.

BRENNAN CJ: Who makes the suggestion on pages 4 and 5?

MR MASON: The identified committee. Your Honours, I was not going to suggest that the ones on 4 are of any great relevance. I was, however, going to submit that the one on 5, with the exception of the sentence, "So, on the question of sexuality" would be a matter which may - and I stress "may" - commend itself to your Honours.

Your Honours, finally, on the question of the ultimate disposition of this case, if the Court finds that the Court of Criminal Appeal was in error, our submission is there should be a new trial in this matter. If the Court pleases.

BRENNAN CJ: Thank you, Mr Solicitor. Yes, Mr Game.

MR GAME: If the Court pleases. With respect to the ultimate question as to whether or not the jury could, in effect, conclude provocation favourably to the accused on the evidence, could I take the Court to Parker's Case [1963] HCA 14; 111 CLR 610, in Sir Owen Dixon's judgment at page 616, beginning at about point 5:

But on the question of provocation there has been no decision of the jury and the question is whether they ought to have been allowed to decide it.

And that which follows, to the end of that paragraph, we would submit, is the appropriate question to be asked in circumstances such as these, and I will not read it, but the whole of the rest of that paragraph we rely upon.

So posed, the sorts of arguments that the Solicitor-General has put, for example, he puts arguments that the deceased was not a father figure and I put arguments that he was, are inappropriate exercises for the Court to engage in, for the reasons given by Sir Owen Dixon in that passage. Likewise, the very notion that one can apply House v The King reasoning to a proviso question, is also misplaced for the very same reason, and it should be borne in mind, in our submission, that this is one appellate court, in effect, standing in the position of the court in no different position than the Court of Criminal Appeal.

The question of involving issues of fact which is usually that which principles such as House v The King apply to, has no application in these circumstances, and in Parker v The Queen, Sir Victor Windeyer said at page 647 - there is a passage which we also rely upon, about point 6:

If the case is one for special leave then, in considering whether the appeal should be allowed, we must approach the matter as if we were a court of criminal appeal. It then becomes of little importance that on the facts the verdict may seem to have been right, if the jury were not properly directed on a material issue and this misdirection might have affected their decision.

A fortiori, we would submit when the jury have been both deprived of relevant evidence and misdirected as to the evidence.

TOOHEY J: Does this line of argument carry through into the proviso, or - - -

MR GAME: Yes, your Honour.

TOOHEY J: And is that the context in which these remarks are being made?

MR GAME: These remarks are not being made in the context of the proviso. These remarks are being made in the context of whether or not there was evidence upon which the issue of provocation could go to the jury. But, we would submit that one applies these principles and then the application of the proviso to the question becomes clear and the inapplicability of House v The King principles becomes clear.

TOOHEY J: It may not be so easy to apply it to the proviso in that.

MR GAME: But, your Honour, in our submission, the application of the proviso never will arise once one has concluded favourably the question that there is evidence upon which the jury could find provocation in the sense identified by Chief Justice Dixon in the passage to which I have just referred.

TOOHEY J: Is that because if there was evidence upon which the jury could so find, then it could never be said that miscarriage of justice has not actually occurred?

MR GAME: That is a way in which the proposition could be appositely put.

TOOHEY J: But is that the way in which you are putting it?

MR GAME: It is one way in which I put it. The other way in which I put it is the Wilde v The Queen way, which is that there has been a fundamental flaw in the trial in the sense - and once that fundamental flaw has been found, it is inappropriate to proceed to a consideration of the application of the proviso because the accused has not had a trial according to law. Now, that may be a different way of saying the same thing, but it has been expressed in that way in Wilde v The Queen.

BRENNAN CJ: Yes, but the fundamental flaw proposition in Wilde is a very different one from the wrongful rejection of a piece of evidence, is it not?

MR GAME: It is, your Honour. The fundamental flaw proposition is itself a question-begging exercise which creates its own difficulties and we are content to put our argument on the first basis, which is that to which I have just referred, namely that there was evidence and the jury never got to consider the case on the basis of it.

In any event, on our argument Justice Priestley erred in the process of reasoning which led up to the application by him of the proviso. So if you applied House v The King reasoning, that would, in fact, result in the same conclusion. There was one passage that I did not refer to that I should have in page 281 line 25. I have already given the arguments as to the structure of the judgment, but one further sentence, line 25 on page 281:

It is easy to see that many an ordinary person in the position in which the appellant was when Mr Gillies was making his amorous physical advances -

well, that, in our submission, can only be interpreted in one way. It means in the physical position of the appellant, that is to say, minus the family history, and it is consistent with the rest of the structure of the judgment. Now, in relation to the decision in Baraghith v The Queen, Baraghith v The Queen was a refusal of special leave. The correctness of the application of Stingel to the New South Wales provision was never argued. It was not questioned. The argument went off on a different question. So, in our submission, Baraghith v The Queen cannot be determinative of the matter. Simply as a matter of precedent it cannot be determinative of the matter, but in any event the point was not argued in that case.

Now, the Solicitor-General referred to a passage in which the first objection was taken in relation to the truth of an assertion of sexual assault -that is at page 29 - but it is clear from that which emerged, which was that the debate was in relation to a much broader question and the judgment covered a much broader question and the evidence admitted, as I have said, went to a much narrower point, which was premeditation.

In relation to the matter raised by your Honour Justice McHugh with respect to there being a spare room, there was no spare room in this house. The deceased lived with his mother. Her bedroom was the front room in the house. She was away. There was evidence that the accused was directed to the room of the deceased, the deceased going to sleep in his mother's room, and I will just give the Court some page references on that without reading them. Page 134 line 43, 138 line 15, 89 line 35 and 89 line 55.

Those are my submissions in reply, if the Court pleases.

BRENNAN CJ: Thank you, Mr Game. The Court will consider its decision in this matter and will adjourn until 10.15 tomorrow morning.

AT 2.48 PM THE MATTER WAS ADJOURNED