Bowhay v The Queen S121/2000 [2000] HCATrans 759 (15 December 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S121 of 2000

B e t w e e n -

ADAM JOHN BOWHAY

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAUDRON J

KIRBY J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 DECEMBER 2000, AT 12.32 PM

Copyright in the High Court of Australia

MR S.C. ODGERS, SC: May it please the Court, I appear for the applicant. (instructed by Conditsis & Associates)

MR A.M. BLACKMORE: May it please the Court, I appear for the respondent. (instructed by S.E. O'Connor, Solicitor for Public Prosecutions)

GAUDRON J: Yes, Mr Odgers.

MR ODGERS: Your Honours, this application is slightly out of time. There was a six-week delay and the affidavit - - -

MR BLACKMORE: No objection, your Honour.

GAUDRON J: Apparently it is not opposed, so proceed to the merits if you would.

MR ODGERS: Thank you, your Honour. Your Honour, in the Court of Criminal Appeal it was accepted that the trial judge made an error in his directions on the elements of the defence of provocation. If I could just summarise the error, it was effectively telling the jury that it would not be enough for the defence if an ordinary person in the position of the applicant could have formed an intent to cause serious injury. It was necessary that such an ordinary person could have formed an intent to kill. As I say, it was accepted in the Court of Criminal Appeal that that was an error - I do not think it was contested by the Crown - under section 23(2)(b) of the Crimes Act.

It was contended in the Court of Criminal Appeal that that was a significant error, indeed a fundamental error. It was a misdirection on an element of the defence of provocation and, indeed, a misdirection on the elements of the offence of murder in this case. It was an issue in dispute in the trial and it effectively removed the defence from the jury's consideration because the defence case was, in essence, that an ordinary person in the accused's position might have formed an intent to cause serious harm, and that was really what the defence case was.

Now, your Honours would appreciate that the majority of the Court of Criminal Appeal applied the proviso to section 6 of the Criminal Appeal Act on the basis that the error was not fundamental and that, applying the other side of the proviso, the applicant did not lose a chance of the defence succeeding. There is a question of general importance, we say - - -

GAUDRON J: Yes, but we will only get to this question, will we not, if the defence was open?

MR ODGERS: If the defence was open.

GAUDRON J: It does seem to me that that is the matter you must address.

MR ODGERS: I will move to that directly then. The question under section 23(4) of the Crimes Act is whether there was any evidence that the act causing death was an act done under provocation. That is the relevant test for the trial judge and, indeed, for the Court of Criminal Appeal in assessing the question of whether or not the defence was open. The respondent argues that it was not open because of 23(2)(a) and 23(2)(b). I will not deal with 23(2)(a) because none of the members of the Court of Criminal Appeal thought that it was not open on that basis.

GAUDRON J: That may be so but it is not abundantly clear to me that it was.

MR ODGERS: Well, I will deal with it then, your Honour.

GAUDRON J: Section 23(2)(a) - yes.

MR ODGERS: This is the requirement that:

The act or omission is the result of a loss of self control on the part of the accused that was induced by any conduct of the deceased - - -

GAUDRON J: In particular, what concerns me is how you relate the provocative act, to use that neutrally, with the attack in the park.

MR ODGERS: Well, the first aspect is loss of control.

GAUDRON J: When?

MR ODGERS: At the time of the act causing death.

KIRBY J: Yes, but there was a significant time delay between the so-called inappropriate touching and when your client, as it was suggested, lured the deceased into the park and - - -

GAUDRON J: He had already smacked him in the mouth, he said.

MR ODGERS: Yes.

KIRBY J: And then stabbed him and stole his wallet.

GAUDRON J: On his evidence, when he screamed.

CALLINAN J: And strangled him.

MR ODGERS: Yes.

GAUDRON J: That subsequent action occurred because he wanted to make sure he was "dead proper", or - - -

MR ODGERS: That was in the record of interview but he disclaimed that in his evidence.

GAUDRON J: Yes.

MR ODGERS: But, taking the defence case at its highest, we say that there was evidence that he lost control, that he had gone there with an intent to assault, "to flog" I think was the term. He did not have an intent to either cause grievous bodily harm - - -

CALLINAN J: He asked the companion for a knife, did he not?

MR ODGERS: That was at the park. I am talking about going to the park and when he got to the park he assaulted the - - -

CALLINAN J: But he paused in his murderous assault and said, "Give us a knife so I can finish him off".

MR ODGERS: With respect, no, your Honour. The evidence was that it was to intimidate. He gave evidence the intention was to scare the victim into not screaming.

CALLINAN J: Who was drunk and lying on the ground.

MR ODGERS: And screaming.

CALLINAN J: But already disabled.

MR ODGERS: Yes, certainly, but, your Honour, taking the defence case at its highest, which one must do for the purposes of determining whether defence was open, the defence case was that after punching the deceased and putting his hands around his neck and asking for the knife for the purposes of intimidating or scaring the deceased, that at that point he lost control and stabbed and had no memory of stabbing. He only realised he had stabbed after he had seen the blood and then also jumped up and down, also in a state of loss of control. That was the defence case. There was evidence of both of those matters, loss of control - not at two-thirds of the way through but loss of control, indeed, before the stabbing.

KIRBY J: What was his relationship with the companion? Was she his girlfriend, or that was not revealed?

MR ODGERS: So far as I recall, there was no evidence on the nature of the relationship other than - - -

KIRBY J: She was 14.

MR ODGERS: She was 14. She was travelling with him.

KIRBY J: I saw some suggestion that she was in his care, or - - -

MR ODGERS: I think only in the indirect sense that he had taken some responsibility for looking after her - only in that loose sense. But, your Honours, the critical point from the point of view of paragraph (a) is evidence of loss of control before the stabbing and the only explanation that was advanced by the defence is - or indeed the only real evidence to explain that loss of control is what had occurred before, and that was the interference by the deceased.

GAUDRON J: The screaming.

MR ODGERS: No, your Honour.

GAUDRON J: In his record of interview, first of all he says he formed the intention to smack him in the mouth, does he not?

MR ODGERS: Yes, your Honour.

GAUDRON J: Which he does, because of the provocative actions.

MR ODGERS: Yes, your Honour.

GAUDRON J: Then he decides to do something else, does he not, according to his record of interview?

MR ODGERS: Yes, although, as I keep saying, some of the record of interview he disclaimed in his evidence. To a large extent, our case turns on what he testified to, which is contained in the application book, and that is at page 10 of the application book, continuing over to page 11. On page 10 at line 32, your Honours will see that the deceased was screaming, he was:

Making a lot of noise.....I didn't intend to hurt him badly.....telling him to be quiet, stop screaming.

Line 50:

Put my hands around his throat in that choke like hold.

GAUDRON J: Yes. So, what:

To stop him from scratching out my face.....

Q And did he continue to scream?

A Yes.

MR ODGERS: Yes, then over the page he described how he did it:

Put them around his throat, not to kill him or hurt him but to stop him from screaming.

GAUDRON J: Not because of the provocative action.

MR ODGERS: No, absolutely. The point, your Honour, if I can summarise it, is his case is, "I was acting rationally, I had no intention to kill, no intention to cause grievous harm, and nothing I did had the effect of either of those two things to that point and the acts that did cause death occurred after I lost control". On page 11, line 23:

Q When he started screaming again what did you do?

A Went to look for the knife I had in my pocket, which wasn't there.

Q. At that stage did you know what happened to your knife?

A No.

Q Then what happened?

A Looked at Robyn and told her to give me a knife.

Q Sorry, what happened then?

A Looked at Robyn and told her to give me a knife to use it to just threaten him to be quiet.....

.....what was your intention.....

A Just to threaten him, to scare him to be quiet.

CALLINAN J: But at page 12, about line 45 he seems to change that and there is a suggestion of a kind of an automatism defence.

MR ODGERS: Precisely.

CALLINAN J: How could he be provoked if he has become an automaton?

MR ODGERS: No, your Honour, what he says is he has no memory of stabbing and, as I said, in the application book the statement he made to one of his psychiatrists was that - this is at page 17, line 10. Can I just take your Honours quickly to that. He told his psychiatrist:

`he lost it' and stabbed Mr Jarvis four times -

So, his account is that he lost control.

KIRBY J: Yes, but you are not suggesting that the relevant act is the screaming on the part of the deceased?

MR ODGERS: No.

KIRBY J: You have to relate it back to the inappropriate touching of his girlfriend and his reactions that he says he had because of the prison culture to that conduct, though the girlfriend was 14 years of age and in his company.

MR ODGERS: Yes, your Honour. So, the submission I make is that it was open to the jury to consider that there was a causal linkage between what had happened earlier in the night in the company of the girl and the loss of control. That is really what it comes down to, that it was open to the jury to give him the benefit of the doubt on that question and to conclude that it was reasonably possible that he lost control not because of the screaming, when his evidence was that his intention was only to threaten him, but rather that it was causally linked to what had occurred earlier in the evening.

In my submission, that was entirely open to the jury. The Crown at the trial did not suggest otherwise. No member of the Court of Criminal Appeal has suggested otherwise and, in my submission, this Court should not conclude that it would not have been open to the jury to draw that causal nexus between what had occurred earlier and the loss of control at the time of the stabbing.

KIRBY J: Justice Hulme found that provocation ought not to have been put to the jury, did he not?

MR ODGERS: He did, your Honour, but not on this basis. He did that on paragraph (b) and I perhaps should turn to that and deal with that. As I said before, the Crown at trial did not suggest that the defence should not have been left to the jury. The majority of the Court considered that paragraph (b) was open on the evidence, although Justice Hulme, as your Honour Justice Kirby has pointed out, did not.

The critical evidence - and perhaps this relates too, to paragraph (a) - in the trial upon which we really rely was the psychiatric evidence. Now, what that evidence, taking it at its highest, tended to show was that this applicant suffered from a depressive illness which created intense episodes of depression and distorted thinking, that he had very strong emotional negative feelings towards paedophiles. There was evidence from Dr McMurdo that if he believed that the victim was a paedophile - and there was evidence that he did so believe - that the victim's actions in interfering, to use a general term, with the 14 year old girl "would have provoked him far more than the average individual". That was the evidence of Dr McMurdo.

Now, taking the defence case at its highest, we say that that is relevant both to (a) and to (b), that it would be open to a jury to infer on that evidence that the loss of control at the time of the acts causing death was causally related to the earlier interference, using the term generally, in circumstances where he had this psychiatric condition and where the evidence was that such interference would provoke him far more than the average individual and that in those circumstances it also means, we say, that you cannot conclude that paragraph (b) was not open.

KIRBY J: What was the time lapse between the last so-called "inappropriate touching" of this intoxicated man and the stabbing, the homicide?

MR ODGERS: Your Honour, I will stand corrected if I am wrong but I do not think it was ever clearly identified what the period of time was, but it was a situation where the touching is going on during the evening and, as I understand it, the applicant formed an intention to assault the victim because of the touching and he lured him out to the park in order to assault him.

KIRBY J: Not to take his wallet?

MR ODGERS: No.

KIRBY J: Though he did in fact take his wallet.

MR ODGERS: He did, your Honour, but the sentencing judge sentenced him on the basis that that was not the motive for the assault, that that followed on afterwards and that the sequence of events was the touching, intention to assault, lured him to park, assaulted, screaming - we say evidence of loss of control at that point - stabbing and jumping up and down. We say open to a jury to infer that there was causal linkage between the earlier interference and the acts causing death, particularly, we say, in the context of the psychiatric evidence which has to be taken at its highest, that he is suffering from a depressive illness, he is liable to distorted thinking, he has very strong emotional feelings towards paedophiles, and the evidence was that if he believed this man was a paedophile, as the evidence established that he did, then he would have been provoked far more than the average individual.

We say, looking at the ordinary person in the position of the applicant, as explained in Green, and taking the defence case at its highest, it is simply not possible to say that it was not open to a reasonable jury to say that the conduct of the victim could have led an ordinary person who was provoked far more than the average individual - and the test has to be that - to form an intent to inflict serious harm, and that is the test. We say it is simply not open to a judge or to members of this Court to reach that conclusion in the context of the psychiatric evidence. That is the submission I make.

GAUDRON J: Yes, "not open" is - - -

MR ODGERS: Your Honours, in order to conclude - - -

GAUDRON J: There has to be evidence linking one with the other. It is not a matter of mere speculation.

MR ODGERS: Yes, your Honour, but, in my submission, the evidence was the context, the sequence of events, the circumstances, the loss of control where no explanation is advanced. He does not know, with respect - he cannot know - what leads him to lose - - -

GAUDRON J: Well, he does not tell us. It is one thing to say he advances no explanation; it is quite another thing for you to say here that he cannot know and does not know.

MR ODGERS: Well, your Honour, he cannot know - - -

GAUDRON J: He can know. There was not evidence - - -

MR ODGERS: - - -why he loses control.

GAUDRON J: Well, "He doesn't tell us" is the best you can say, on the evidence.

MR ODGERS: Yes. My submission is that it is hard to imagine any circumstances in which a person who loses control can clearly identify what it is that makes him lose control. The sequence of events was that the initiating circumstance was the interference. His intentions were not to inflict serious harm. He says plainly that at a particular point in time he lost control and, in my submission, it is open to a jury to draw that inferential connection, even though he does not say, "Well, the reason I lost control was because I thought he was a paedophile who had been interfering with the 14-year-old girl".

We say that given the psychiatric evidence it was quintessentially a question for the jury that the directions of the trial judge deprived the applicant of a fair trial, according to law, and that it was a fundamental error such that the proviso could not properly be applied. Those are our submissions.

GAUDRON J: We do not need to trouble you, Mr Blackmore.

Whatever errors there may have been in the summing up in this matter, the proposed appeal could only succeed if provocation should have been left to the jury. Notwithstanding the view of the majority in the Court of Criminal Appeal, we are satisfied that provocation was not open. Accordingly, although time is extended for the bringing of this application, special leave is refused.

The Court is going to adjourn briefly to reconstitute.

AT 12.53 PM THE MATTER WAS CONCLUDED