New South Wales Court of Criminal Appeal CITATION : Regina v Hall [2001] NSWCCA 202 FILE NUMBER(S) : CCA 60397/99 HEARING DATE(S) : 23 April 2001 JUDGMENT DATE : 25 May 2001 PARTIES : Regina Brian Morgan Hall JUDGMENT OF : Meagher JA at 1; Sully J at 2; Howie J at 69 LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 70047/97 LOWER COURT JUDICIAL Hidden J OFFICER : COUNSEL : E. A. Wilkins - Crown T. A. Game SC/T. Molomby - Appellant SOLICITORS : S. E. O'Connor - Crown D. J. Humphreys - Appellant LEGISLATION CITED : Crimes Act 1900 (NSW) R v Annakin & ors (1988) 17 NSWLR 202 R v White, Eaves and Parker (1988) 17 NSWLR 195 R v Johnson (1917) 17 SR (NSW) 481 at 482-4 R v Sorlie (1925) 25 SR (NSW) 532 at 539 R v Parker (1974) 1 NSWLR 14 at 18C Fleming v The Queen (1998) 197 CLR 250 at 266(44) M v The Queen (1994) 181 CLR 487 CASES CITED: McKnoulty (1994) 77 A Crim R 333 at 338,339 Gordon (1991) 57 A Crim R 413 at 418 Tumanako (1992) 64 A Crim R 149 at 154 Gardener (1989) 41 A Crim R 279 Mui Ky Chhay (1994) 72 A Crim R 1 at 14 Peisley (1990) 54 A Crim R 42 at 48 Murnin, NSWCCA, 16/8/85 Slattery (1996) 90 A Crim R 519 at 522, 523 DECISION : (1) That the appeal against convictions be dismissed (2) That leave be granted to appeal against sentence (3) That the appeal against sentence be dismissed IN THE COURT OF CRIMINAL APPEAL 60397/99 MEAGHER JA SULLY J HOWIE JA 25 May 2001 REGINA v Brian Morgan HALL JUDGMENT 1 MEAGHER JA: I agree with Sully J. IN THE COURT OF CRIMINAL APPEAL 60397/99 MEAGHER JA SULLY J HOWIE J 25 May 2001 REGINA v Brian Morgan HALL JUDGMENT 2 SULLY J: On 31 May 1999 the appellant, Mr. Brian Morgan Hall, was presented before Hidden J of this Court for trial upon an indictment containing ten counts. The appellant pleaded not guilty to eight of those counts and guilty to the remaining two counts. The Crown did not accept two pleas of guilty in full discharge of the indictment, and the appellant was put accordingly upon trial by jury. On 16 June 1999, the eleventh day of the trial, the jury returned verdicts finding the applicant guilty on four counts and not guilty on three counts. 3 In order to minimise confusion, it is expedient to tabulate as follows the relevant details of the ten counts charged in the indictment. All counts, except count 7, alleged offences committed on 15 December 1996 at Drummoyne. Count 7 alleged an offence committed on 22 December 1996 at Campbelltown. COUNT CHARGE PLEA VERDICT 1 Wound Mark Grant Webber with intent to murder him Not Guilty Not Guilty 2 Alternative to Count 1: maliciously wound Mark Grant Webber with intent to do grievous bodily harm to him Not Guilty Guilty 3 Alternative to Count 2: drunken driving involving an impact with Mark Grant Webber and occasioning grievous bodily harm to him Not Guilty Not necessary to be found 4 Cause grievous bodily harm to Wayne Gregory Piper with intent to murder him Not Guilty Not Guilty 5 Alternative to Count 4: maliciously inflict grievous bodily harm upon Wayne Gregory Piper with intent to do grievous bodily harm to him Not Guilty Guilty 6 Alternative to Count 5: drunken driving involving an impact with Wayne Gregory Piper and occasioning grievous bodily harm to him Guilty Not necessary to be found 7 Murder Brooke Rochelle Webber Not Guilty Guilty 8 Cause grievous bodily harm to Mark Grant Webber with intent to murder him Not Guilty Not guilty 9 Alternative to Count 8: maliciously inflict grievous bodily harm on Mark Grant Webber with intent to do grievous bodily harm to him Not Guilty Guilty 10 Alternative to Count 9: drunken driving involving an impact with Mark Grant Webber and occasioning grievous bodily harm to him Guilty Not necessary to be found 4 On 5 July 1999 the appellant stood for sentence in connection with the four offences of which the jury had found him guilty. He asked that there be taken into account three further offences connected with the events giving rise to the jury verdicts, and Hidden J did so. 5 Hidden J sentenced the appellant to imprisonment for 19 years and 6 months for the offence of murder as charged in Count 7 of the indictment. His Honour passed a concurrent sentence of imprisonment for a fixed term of 10 years for each of the other three offences of which the appellant had been found guilty; that is to say, the offences as charged in Counts 2, 5, and 9 of the indictment. His Honour fixed a minimum term of 14 years and 6 months, and an additional term of 5 years. 6 The present appeal against conviction challenges only the convictions on Counts 7 and 9, and does not challenge the convictions on Counts 2 and 5. The appellant seeks, in addition, leave to appeal against the asserted severity of the sentences passed upon him. 7 Three grounds of appeal against conviction are propounded, namely: "1. His Honour the trial judge erred in his directions to the jury as to recklessness. 2. The verdicts on counts 7 and 9 are a miscarriage of justice, in that they cannot be supported having regard to the evidence. 3. His Honour erred in that he failed to leave for the consideration of the jury manslaughter by reason of provocation". 8 It will be necessary to consider presently some of the detail of the evidence at trial; but it is convenient to set the relevant scene more generally and by reference to the following findings of fact made by Hidden J: "2. In the early evening of that Sunday, the prisoner arrived at Birkenhead Point after an outing on a boat. He and a friend, John Sternbeck, went to the Birkenhead Tavern in Roseby Street, where they remained until the establishment closed at about 10 pm. A number of patrons at the tavern left at the same time as they did. Among them were Mark Webber, his sister, Brooke Webber and their friend, Wayne Piper. By this time the prisoner had had far too much to drink. 3. He and Mr. Sternbeck went to the prisoner's car, which was parked at a multi-storey car park next to the tavern. He drove the car over a low barrier separating the car park from the footpath, across the footpath and onto the road. This led to some derisory remarks by patrons of the tavern who were in the vicinity, to which the prisoner responded with insults of some kind. Mark Webber invited him to repeat those insults outside the car. The prisoner alighted, and there was a violent exchange between him and Mark Webber. Mark Webber got the better of the prisoner, the two men were separated and the prisoner got back into the car. Mark Webber punched him through the driver's window and somebody, possibly Mark Webber himself, kicked the car. The prisoner drove off, shouting words which could be construed as threats to people in the area. 4. He drove in the direction of Victoria Road, but at the next intersection in Roseby Street he did a U-turn and drove back towards the spot where the altercation had taken place. The car struck Mark Webber and Wayne Piper, who were standing together towards the middle of the roadway. This gave rise to the charges of maliciously wounding Mark Webber with intent to do grievous bodily harm and maliciously inflicting grievous bodily harm upon Wayne Piper with intent to do grievous bodily harm. He then continued on to the bottom of Roseby Street, which formed a cul-de-sac. 5. Some people went to the aid of Wayne Piper, who had been thrown some metres by the impact, and removed him to the side of the road. Mark Webber was also thrown into the air by the impact, falling to the ground roughly where he had been standing. His sister, Brooke Webber went to his aid, as did Paul Allen, who did not know either of them. Mr. Allen began to lift Mark Webber in an attempt to remove him from the middle of the road. 6. In the meantime, the prisoner had reached the bottom of Roseby Street, where he turned and drove back up the street. On this occasion the vehicle struck Brooke Webber, Paul Allen and, for a second time, Mark Webber. Fortunately, Mr. Allen was not seriously injured. However, Brooke Webber was thrown to the side of the roadway and suffered injuries from which she died a week later in Royal Prince Alfred Hospital. This second impact gave rise to the charges of the murder of Brooke Webber and of maliciously inflicting grievous bodily harm upon Mark Webber with intent to do grievous bodily harm." Ground 1 9 In order to deal correctly with this ground of appeal it is necessary to consider the relevant detail of Hidden J's charge to the jury. 10 His Honour, before commencing his formal directions to the jury, gave the members of the jury a document which set out in careful detail an outline of the elements of each of the offences charged in the indictment. The document laid out for the jury with complete clarity the range of possible verdicts that were available to the jury depending upon the view of the facts taken by the jury. 11 So far as concerns count 7 in the indictment, that is to say, the count charging the appellant with the murder of Brooke Webber, this document read as follows: "To find the accused guilty of this charge, you would have to be satisfied beyond reasonable doubt of the following: 1. That the accused caused the death of Brooke Webber (admitted), and 2. (a) That the accused intended to kill someone (disputed), or (b) That he intended to inflict really serious bodily injury upon someone (disputed), or (c) That he pursued a course of driving realising that he would probably kill someone (disputed)." ( emphasis added) 12 A copy of this document remained with each member of the jury throughout the course of the consequent summing-up; and was available to each member of the jury throughout the duration of the jury's deliberations after the conclusion of the summing-up. The written directions quoted above went to the jury without objection. 13 The first references in the summing-up proper to the issue of intent as relevant to the charge of murder occurred in the following passages of the charge to the jury: "The Crown has to prove either that the accused intended to kill someone, not necessarily Brooke Webber, but someone or that he intended to inflict really serious bodily injury upon someone or that he was recklessly indifferent to human life. What I mean by that here is that he pursued a course of driving which he realised would probably cause someone's death . Let me say a little more about each of those. The intent to kill is clear enough, as is the intent to inflict really serious bodily injury. You will understand that under the law of New South Wales, if you do an action intending to cause someone really serious harm but in fact kill that person, then you are guilty of murder even though you were not actually setting out to kill. But as I have said the law goes further. I will put it this way: You may do an act without intending to kill someone and without intending to cause anyone really serious harm but realising that what you are doing may well cause someone's death. If in fact you kill someone then you are also guilty of murder on that basis but understand that it is a subjective, not an objective test. It is not a question of what a reasonable person ought to have realised might happen. In this case what you have to look at is the mind of this accused and ask yourselves did he realise at that time when he was driving that his manner of driving was such that he might well kill someone ? Obviously we are not talking about a stage where he realises too late that someone is in his path and can do nothing to avoid a collision. That is not reckless indifference to human life. We are talking about pursuing a course of driving which he realises might well kill someone; will probably lead to someone's death. " (emphasis added) 14 Somewhat later during the summing-up, and in connection with the question of the appellant's state of sobriety, Hidden J gave the following directions: "It will be apparent that the crucial question in this trial is the accused's state of sobriety. Did he intend to kill someone? Did he intend to inflict really serious bodily injury on someone or did he drive his car realising that he probably killed someone and not caring one way or the other. That is reckless indifference to human life ." (emphasis added) 15 Very shortly thereafter, and dealing with the question of intoxication, Hidden J gave these directions: "and for the purposes of the murder charge it's also relevant as to whether you are satisfied he acted with reckless indifference to human life, that is, whether he realised that the course of driving he was pursuing was such as could, well, kill someone ." (emphasis added) 16 In each of the foregoing passages quoted from the summing-up proper, the emphasised words are the foundation of the appellant's submissions on this particular ground of appeal. The appellant's essential submission is that the predominant effect of the directions, as quoted, is to convey the proposition that recklessness in the relevant sense requires merely the possibility, rather than the probability, of death. That criticism, if justified, would certainly indicate a misdirection. 17 The appellant's submissions were supported by reference to the decision of this Court, (Lee CJ at CL, Yeldham and Allen JJ), in R v Annakin & ors (1988) 17 NSWLR 202. The appellant relies in particular upon the following passage in the joint judgment of the Court: "The line of division between probability and possibility is not an exact one, but a probability inevitably in law expresses a higher degree of certainty. The question in the present case, whether his Honour's direction was a sufficient compliance with the test laid down in R v Crabbe depends, in our view, upon whether it can fairly be said that the jury would have understood the direction to mean that before a murder verdict could be found an accused had to contemplate, that is to have knowledge, that death would probably result. This leads to the question - what do we mean when we say that something 'may well happen'? We certainly mean that there is a 'distinct possibility' that it will happen or that there is a 'real possibility' or 'that it is on the cards', and perhaps there are many other ways of stating it. But does it really reach the point where we are saying that, the event is likely to happen? The expression 'likely to happen' means that the event is going to happen, will happen, although only as a matter of probability, not certainty, whereas the expression 'may well result' or 'may well happen' seems to us only to reach the level of saying that 'it could happen' but without the suggestion that there is a likelihood that it will happen. It does not reach the level of suggestion that the event will happen which is inherent in the concept of probability." 17 NSWLR, 216 D - E 18 The decision in Annakin is reported as an annexure to a decision of the same Bench in R v White, Eaves and Parker (1988) 17 NSWLR 195. The Court, speaking of the decision in Annakin, said this: "In R v Annakin we said that the expression 'might well cause death' standing alone conveys a different meaning from the word 'probably' or even 'likely' standing alone ." 17 NSWLR, 202B (emphasis added) 19 It is trite that the passages in the summing-up to which present objection is taken must be read fairly as a whole and in context: R v Johnson (1917) 17 SR (NSW) 481 at 482-4; R v Sorlie (1925) 25 SR (NSW) 532 at 539. When that is done in the present particular case, then in my opinion the "predominant charge", - to borrow a phrase from the decision of this Court, (McClemens CJ at CL, Taylor and Isaacs JJ), in Reg v Parker (1974) 1 NSWLR 14 at 18C, - was to the contrary of the appellant's submission. I am strengthened in that conclusion by the fact that the appellant's counsel at trial, a very experienced barrister in criminal cases, did not take the objection now put at the forefront of the first ground of appeal. 20 The Crown, responding to the first ground of appeal, has submitted that even if it were to be held that there had been a misdirection of law as now submitted by the appellant, it could not fairly be said that there had been on that account a miscarriage of justice. That conclusion follows, so it is submitted, by reason of the fact that the jury, even had it been directed in the way for which the appellant now contends, would have returned, nevertheless, a verdict of guilty on count 7. 21 This submission of the Crown is supported by a careful analysis by the Crown of the verdicts in fact returned by the jury. It is submitted that such an analysis justifies a conclusion that the jury verdicts on counts 7 and 9 in the indictment were verdicts based upon a finding that the relevant intent of the appellant had been an intent to inflict grievous bodily harm on some other person. It is submitted, in other words, that a proper analysis of the jury's verdicts demonstrates that the verdict of guilty returned on count 7 did not depend, in any event, upon a finding that the appellant had acted with reckless indifference. 22 In my opinion the analysis thus put forward by the Crown is sound. 23 For the whole of the foregoing reasons, therefore, I am of the opinion that Ground 1 has not been made good. Ground 2 24 I take this ground, as framed, to propound "………… that the nature and quality of the evidence at the trial was such that, although there was evidence to sustain a verdict of guilty, ……………. (the jury) ……… ought to have entertained a reasonable doubt as to the guilt of the appellant". Fleming v The Queen (1998) 197 CLR 250 at 266(44). That assumption, if correct, brings into play the principles now established definitively by the decision of the High Court in M v The Queen (1994) 181 CLR 487. It is relevant in that connection to have regard also to the discussion of those principles in this Court, (Hunt CJ at CL, Smart and Levine JJ) in McKnoulty (1994) 77 A Crim R 333 at 338, 339. A properly balanced application of those principles to the present particular case will recognise that the appellant elected not to give evidence at trial, so that his only version of what happened was a version contained in his recorded interview with the investigating police: cf Gordon (1991) 57 A Crim R 413 per Hunt CJ at CL (Allen and Badgery-Parker JJ concurring), at 418. 25 The appellant's submissions on this ground of appeal concentrate upon an analysis of the evidence concerning the observed driving behaviour of the appellant in connection with the second impact only. The essence of the appellant's argument is contained in the following extract from the written submissions put in by learned Senior Counsel for the appellant: "Moreover, a considerable number of witnesses said that the car's brakes had been applied before it hit the people on the journey back, which strongly undermines any intention of doing harm, and is consistent rather with a seriously drunk driver (estimated about .164 to .175 from a reading of .145 over an hour later), peering through a shattered windscreen with the wind blowing in his face, seeing the people on the road too late, and applying the brakes. There was also evidence that the appellant's vision was affected by fragments of glass in his eyes. He said so in his interview with the police (A 88), and again to an ambulance officer called to the police station, who testified to having seen glass fragments around his eyes (t/s 282/3).: 26 It is convenient to begin a consideration of these arguments by adverting to the following passages in the summing-up. They occurred after the summing-up had concluded, and in response to a request by the Crown for a clarifying further direction. His Honour said: "On the question of intent: Lest what I said was not entirely clear: I said intent is a matter of inference from the whole of the evidence and that includes what the accused said and did at and around the time of the incident, that includes the fight, the various threats if they were threats which he uttered after the fight and then of course the driver described by the witnesses. In addition to that you have regard also to what he later may have told police or what he said to the police at the time he was arrested and what he later told police in the recorded record of interview. All of that is relevant to the question of intent as is the evidence of his intoxication. I remind you in relation that I should just say this: The fact that he may not later remember everything that happened does not necessarily mean that he didn't have the requisite intent or state of mind at the time these things occurred. (Counsel) relies on his lack of memory later as an indication of how intoxicated he was at the time. But, that simply is a matter which you consider along with all the other evidence in determining how intoxicated you think he was at the time and what affect you consider that might have had upon his formation of an intent or a state of mind." 27 These directions were both clear and correct and no objection was taken to any part of them. The particular directions were, in my opinion, of great practical significance in the present case, for the reason that they properly directed the attention of the jury to the proposition that it was open to the jury to find that the two impacts, although separated by the length of time that it took the appellant to drive from the first impact to the end of the cul-de-sac and return to the scene of the second impact, were in reality both incidents in a continuum of extraordinarily dangerous driving by the appellant; and that the continuum had involved a street brawl which had precipitated the appellant into such a fury of revenge as had caused him, on his own admission, to use his motor vehicle as an attack weapon against effectively defenceless pedestrians. 28 It is true, as the written submissions of the appellant contend, that there was a body of evidence, not inherently incredible, to suggest that there had been, very shortly prior to the second impact, an application by the appellant of the brakes of his vehicle. It is, however, equally true that there was a countervailing body of contrary evidence, also not inherently incredible. Part of that contrary evidence came from Mr. Sternbeck, who had been, at all material times, a passenger in the appellant's vehicle. Mr. Sternbeck, in cross-examination, gave the following evidence: "Q. As the car come up the hill until it hit the girl did it increase speed at all? A. Not that I know of, no. Q. Decrease speed at all? A. Probably kept the same. Q. What speed was that approximately? A. Probably around 40 k's, wouldn't go any quicker up the hills. Q. Did the car appear to slow at all before it hit Brooke, the girl? A. No, not that I know of. Q. Did the car appear to change direction at all? A. No. Q. Car appear to brake at all? A. Not that I know of, no. Q. Car appear to skid at all? Witness shook head. Q. I think the answer is no. A. Not that I remember, no." 29 The appellant himself did not assert to the interviewing police that he had applied his brakes prior to the second impact. Nor did he tell the investigating police that he had not seen people on the roadway at the time of the second impact. The appellant told the investigating police that he had seen people on the roadway; that they "………just sat there they didn't move"; and that so far from having swerved in order to try to move around them, he had just kept "going straight". 30 Keeping in mind that the jury had the advantage, which I have not had, of seeing and of hearing the witnesses who gave evidence on the topic of the suggested braking of the appellant's motor vehicle before the second impact, I am unpersuaded that it was not reasonably open to the jury to prefer the view that the appellant had not applied his brakes. 31 As to the proposition that the appellant's vision as he approached the point of the second impact was affected by fragments of glass in his eyes, the evidence at trial was very sparse. The appellant told the investigating police that he did have fragments of glass in his eyes from a broken wind-shield; but it was for the jury to decide what weight ought to be given ultimately to that assertion; and the jury was in my opinion entitled to take into account, as a relevant consideration, that the appellant's assertion had not been tested by cross-examination. Such other evidence as there was came from Mr. Moore, the ambulance officer who had attended to the appellant at the police station after the appellant's arrest. According to Mr. Moore, he asked the appellant what was wrong with him and received the reply: "I've got glass in my eyes". Mr. Moore examined the eyes "………and saw small slivers of glass on his cheeks and surrounding his eyes …………. I irrigated his eyes with normal saline ……………..". In the course of a very brief cross-examination, Mr. Moore agreed that he had thus flushed out the appellant's eyes "………….because there could have been glass fragments there that you hadn't detected and that flushing was in case there were ……………..". 32 There was a body of evidence, not inherently incredible, to suggest that the wind-screen of the appellant's vehicle had shattered in the aftermath of the first impact. Mr. Sternbeck thought, indeed, that there had been no wind-screen after the first impact, the window having, as Mr. Sternbeck put it, "……………….shattered, and then just broke all inside the car, whatever, just there was no window whatsoever, it was just like looking straight out but no window". 33 I do not accept the submission that the only reasonable finding open to the jury upon the basis of this material was that the appellant was not in a position to see the people whom he eventually hit in the second impact, and that it could not therefore be found that he had an intent to inflict grievous bodily harm upon them or upon anybody else in their near vicinity. 34 Evidence was given at trial by a Mr. Di Palma and a Mr. Robinson. The evidence of each of those witnesses was, essentially, that he had attempted, in the wake of the first impact, to direct any oncoming vehicles out of the way of the people who were then on the surface of the roadway. The evidence of each of these witnesses was that he saw the appellant's vehicle coming back up the hill from the cul-de-sac into which it had driven after the first impact; that he had attempted to direct the appellant to stop; that the appellant had in effect driven at him forcing him to jump out of the way; and that the appellant had thereafter continued straight on to the second impact. 35 Learned senior counsel for the appellant was very critical of, in particular, the evidence of Mr. Robinson. I have read the transcript of that evidence, and I agree that Mr. Robinson appears to have been a voluble witness who was not easily induced to give the shortest truthful and responsive answers to the questions asked of him. I accept, also, that he was cross-examined to some apparent effect upon inconsistencies between his evidence at trial and the contents of his statement to the investigating police. My impression, - but in the nature of things I can put the point no higher, - is that Mr. Robinson's evidence needed to be looked at by the jury with some care. I do not see it as necessarily following that it was not reasonably open to the jury to accept the salient relevant points of the evidence. 36 I have read, also, Mr. Di Palma's evidence at trial. I do not see why it was not open to the jury to accept him as a credible and reliable witness. If the substance of what Mr. Di Palma said be accepted as truthful and accurate, then that evidence was, in my opinion, capable of giving rise to a rational inference that the appellant did drive towards the point of the second impact, having then the intent of inflicting grievous bodily injury on somebody. 37 In addition to all of the foregoing matters, there was a body of evidence at the trial concerning the question whether the appellant's vehicle's headlights were on or off as he drove up the hill from the cul-de-sac and towards the point at which the second impact took place. I do not see why the balance of that evidence was such that the only reasonable conclusion open to the jury was that the headlights had in fact been on. A finding that they had not been on could well have suggested to the jury that the appellant was intending to cause really serious injury to somebody, and that he was, in aid of that objective, making it difficult for others to see and to avoid him as he approached. 38 As I have earlier said in connection with the first ground of appeal, it is my opinion that the jury verdicts on counts 7 and 9 manifest a finding reached by the jury beyond reasonable doubt that the appellant, at the time of the second impact, had an intent to inflict grievous bodily harm upon some other person or persons. The jury was entitled to have regard to the entirety of the appellant's demonstrated conduct from the time of the initial fracas to the time of the second impact. I do not see why it was not reasonably open to the jury to infer from the entirety of the evidence concerning the entirety of that sequence of events that the drunken and vengeful rage which was undoubtedly operating at the time of the first impact was operating also at the time of the second impact, that impact occurring, as it did, very shortly after the first one. In my opinion it has not been demonstrated that there is about the entirety of the evidence at trial any such taint as would satisfy this Court that there is, in the sense discussed by the decision in M, a real risk that an innocent accused has been wrongly convicted 39 In my opinion, the second ground of appeal has not been established. Ground 3 40 Hidden J did not leave to the jury at trial the issue of provocation. There was, however, some discussion between his Honour and the Crown Prosecutor prior to the commencement of the summing-up. The relevant exchanges are recorded in paraphrase at pages 465 and 466 of the trial transcript. I think that in the present case it is preferable to quote the entirety of the recorded discussion rather than to paraphrase a paraphrase. The relevant passages read: " (The appellant's counsel at trial) indicated that he would not be relying on provocation. The Crown Prosecutor raised the question of whether there was evidence fit to go to the jury on the question of provocation.. His Honour indicated that s 23(2) envisaged a loss of self control induced by the conduct of the deceased and that any provocative conduct of any significance came not from the deceased but from Mark Webber, although there was a little evidence of her own activity. The Crown Prosecutor indicated that four aspects of the evidence dealt with the question of loss of self control on the part of the accused: the evidence of Mr. Acord at p 89E, Mr. Maroun at p 77, Mark Webber at p 33 and Mr. Sternbeck at p 419 The Crown Prosecutor submitted that the Crown case was one of courses of driving at a time when affected by alcohol, and being angry and humiliated as a result of the conduct of a number of people, including Miss Webber. A matter that might need to be considered was, when the conduct of the deceased was considered, did the jury consider that conduct in the context of other conduct occurring at the same time, or did the jury need to divide the conduct of the deceased from the conduct of others at about the same time, the section speaking of conduct of the deceased. His Honour indicated that, subject to any further submissions counsel wished to make, his present view was that what s 23 required him to consider was the conduct of the deceased, not of anyone else. He was prepared to assume that he should assess that conduct in the light of the surrounding circumstances and in the light of what others were doing. Even so, in his view, the evidence was such that it could not possibly pass the ordinary person test. The evidence was such that a jury would have to be satisfied beyond reasonable doubt that no ordinary person provoked by the conduct of the deceased in those circumstances could have lost self control so far as to have formed the intent to kill or inflict grievous bodily harm. The Crown prosecutor in addressing the first aspect of provocation submitted that there was barely sufficient evidence to go to the jury on the subjective aspect. As to the objective aspect, he agreed with what his Honour had put and submitted that the jury should not be instructed on provocation, it being no part of the accused's case that he did lose self control and formed the intent to kill or do grievous bodily harm. His Honour indicated he was happy to add, as the evidence stood, that there was insufficient evidence to raise the issue of loss of self control in any event, quite apart from the ordinary person test required under s 23." 41 At the hearing before this Court two affidavits, both sworn by the appellant's counsel at trial, were tendered in support of the appellant's case on Ground 3. In the earlier of those affidavits the appellant's counsel at trial explained as follows his approach to the issue of provocation: "3. Before the trial began, I considered whether provocation should be raised in relation to the murder charge. I believed that there was evidence of a loss of control by the appellant, but I did not believe that could be attributed only to the kicking of the appellant by the victim, and so did not raise provocation at the trial. The question of whether, in the circumstances of this case, provocation could be based in addition on acts done by people other than the victim never entered my mind." 42 In the later of the two affidavits counsel expanded this explanation as follows: "3. As stated in my previous affidavit, I had decided before the trial began that I would not raise provocation at the trial. From reading pages 465 and 466 of the transcript, I believe that I did not take part in discussion of the issue of provocation at the trial except to say that I would not be relying on it. Specifically, though I had formed the view, as stated in my previous affidavit that there was evidence of a loss of self control by the appellant, I did not seek to argue that issue before the trial judge because I had decided against raising provocation for the reason given in my previous affidavit. 4. In referring in my previous affidavit to the question of whether provocation could be raised on acts done by people other than the victim, I was including any concept such as common purpose or transferred malice by which responsibility for the acts of others might be attributed to the victim." 43 The foregoing background having been set in place, it is convenient to turn next to the relevant provisions of s.23 of the Crimes Act 1900 (NSW). They are: "(1) Where, on the trial of a person for murder, it appears that the act or omission causing death was an act done or omitted under provocation and, but for this subsection and the provocation, the jury would have found the accused guilty of murder, the jury shall acquit the accused of murder and find the accused guilty of manslaughter. (2) For the purposes of subsection (1), an act or omission causing death is an act done or omitted under provocation where: (a) 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 (including grossly insulting words or gestures) towards or affecting the accused; and (b) that conduct of the deceased was such as could 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 to inflict grievous bodily harm upon, the deceased, whether that conduct of the deceased occurred immediately before the act or omission causing death or at any previous time. (3) For the purpose of determining whether an act or omission causing death was an act done or omitted under provocation as provided by subsection (2), there is no rule of law that provocation is negatived if: (a) there was not a reasonable proportion between the act or omission causing death and the conduct of the deceased that induced the act or omission; (b) the act or omission causing death was not an act done or omitted suddenly; or (c) the act or omission causing death was an act done or omitted with any intent to take life or inflict grievous bodily harm. (4) Where, on the trial of a person for murder, there is any evidence that the act causing death was an act done or omitted under provocation as provided by subsection (2), the onus is on the prosecution to prove beyond reasonable doubt that the act or omission causing death was not an act done or omitted under provocation." 44 In considering the applicability of s.23 to the present particular case, it is convenient to begin by re-stating certain established propositions as explained by Badgery-Parker J in his Honour's judgment, with which Gleeson CJ and Clarke JA agreed, in Tumanako (1992) 64 A Crim R 149 at 154: "It is clear that there is an obligation on a trial judge to leave the jury a matter capable of being relied upon by the accused by way of defence, notwithstanding that he does not expressly seek to rely upon it, and notwithstanding that his counsel has not addressed the jury upon it. The question then is whether there was evidence which, if believed, might reasonably have led the jury to return a verdict of manslaughter on the ground of provocation. Whether there was evidence fit for consideration by the jury on a question of provocation is a question of law. In order to justify the trial judge in leaving an issue of provocation to the jury, there must be evidence on which the jury would be entitled to find a provocative incident, which in fact caused the accused to lose self-control, and which was of such nature as could have induced an ordinary person in the position of the accused to have done the same. It is proper that the words or conduct of the deceased said to be capable of amounting to provocative conduct should be considered not in isolation but in the light of the history of the relationship between them because particular acts or words which, considered separately, could not amount to provocation may, in combination or cumulatively, be enough to cause the appellant to lose his self-control in fact and may also be capable of causing an ordinary person in his position to lose self-control and resort to violence." 45 Was there in the present case "evidence on which the jury would be entitled to find a provocative incident" at all? 46 If one looks no further than the evidence touching upon the relevant conduct of the deceased herself, it seems to me that there was such evidence. There was a body of evidence, not inherently incredible, and which, if accepted by the jury, could have given rise to a rational finding of fact that the deceased, having seen her brother become embroiled in a fight with the appellant, went to her brother's assistance, calling upon the appellant to let her brother go; and striking the appellant either by slapping him with her hand or by kicking his head. 47 At the hearing of the appeal there was a deal of discussion as to whether, in the circumstances of the present case, the jury properly instructed could reasonably have attributed to the deceased provocative conduct on the part of her brother. 48 I am content for present purposes to accept as correctly stated the principle, to which Badgery-Parker J refers in Tumanako: "…………….that the provocative conduct which may sustain a defence of provocation need not necessarily be conduct of the deceased personally if it is conduct in the presence of the deceased by a person so closely associated with the deceased that it is reasonable for the jury to attribute the conduct of that person to the deceased". There was, in the present case, plenty of evidence of conduct on the part of the deceased's brother which was capable of being regarded reasonably as provocative in the relevant legal sense. I am myself unpersuaded that the available evidence shows that the deceased so conducted herself as to make it reasonable to attribute to her the provocative conduct of her brother. Her brother's provocative conduct continued for some time. The intervention of the deceased seems to me to have been, on any reasonable view of the available evidence, a very brief intervention focused upon saving her brother from injury at the hands of somebody who was, as the evidence suggests to me to have been the fact, bigger and heavier. The evidence suggests that almost as soon as the deceased intervened, she was either waved away by her brother, pulled away by somebody else, or both of those things. In such a setting, it does not seem to me to be reasonably open to say that such a limited intervention has the effect of attracting onto the deceased herself the legal consequences of the entirety of her brother's provocative conduct. 49 I think, however, that given the current state of appellate authority, and in particular the reasoning of the Court of Criminal Appeal of Victoria in Gardener (1989) 42 A Crim R 279, it would be prudent to approach the present case upon the footing that, although I myself would not have found as a fact that the deceased could be visited fairly with the consequences of her brother's provocative conduct, the aggregate effect of the individual pieces of relevant evidence at trial was such that a reasonable jury properly instructed could have taken the contrary view on that aspect of the present matter. 50 In that event, it is necessary to proceed to the next relevant question which is whether the provocative incident in fact caused the accused to lose self-control. 51 As Gleeson CJ pointed out, Finlay and Abadee JJ concurring, in Mui Ky Chhay (1994) 72 A Crim R 1 at 14: "Emotions such as hatred, resentment, fear, or the desire for revenge, which commonly follow ill-treatment, and sometimes provide a motive for killing, do not of themselves involve a loss of self-control although on some occasions, and in some circumstances, they may lead to it. What the law is concerned with is whether the killing was done whilst the accused was in an emotional state which the jury are prepared to accept as a loss of self-control." 52 To the same effect is the following statement of Wood J (as he then was) in Peisley (1990) 54 A Crim R 42 at 48: "More is required than anger or loss of temper or building resentment. There must, in my view, be a loss of self-control which I understand to include a state in which the blood is boiling or a state of fear or terror, in either case, to the point where reason has been temporarily suspended." 53 The fact that the appellant gave no evidence at trial is not, of course, of itself fatal to the case that he now seeks to make in this Court. That fact does have, however, the practical consequence that this Court must make what it reasonably can, as indeed Hidden J had to do at the trial, of evidence which, so far as it bears directly upon the asserted loss of self-control, in the requisite legal sense, by the appellant, is exiguous to say the very least. 54 The only recorded version of relevant events which the appellant has given is the version to be found in his recorded interview held on 16 December 1996 between the appellant and investigating police officers. 55 During the course of that interview the appellant was questioned about his recollections of the fracas which set in train the events that culminated in the death of Miss Webber, and the serious injury of both Mr. Webber and Mr. Piper. The appellant told the police the following things: "I just remember that they were swinging and I was swinging and that was it. That's all I remember." (answer to question 49) "There was about six or seven guys on me and no-one came. I just could hear people screaming and that was it. And then they stopped and I just got in my car and went up and did a uey and went back down and I came back up and they were all in the middle of the road." (answer to question 51) "Question 174 - O.K. Can you describe any of these people --- Answer - Not really Question 174 - ---- that were involved in the fight? Answer - I didn't see any of them. Question 175 - Do you have any idea how old they were? Answer - I think about the same age as me, 22, 23." 56 It is, in my opinion and to say the very least, an available inference from this material that the appellant did not identify in any particular way at all any individual person or persons of whom he was in a position to say that such person or persons had behaved towards him in a fashion which might be thought, on a reasonable view, to have been provocative in the requisite legal sense. 57 I confess to some difficulty in understanding how the appellant can be heard to say that his killing of Miss Webber is lessened in its criminal culpability by reason of the fact that she provoked him, when in fact he does not seem ever to have identified her positively as having done anything in particular that provoked him to do what he did. 58 What the evidence does show clearly, however, is that in the aftermath of the street brawl earlier herein described, the appellant did not get into his motor vehicle and thereupon drive the vehicle in a blind and irrational fashion at people standing on the roadway. What the evidence shows the appellant to have done is to have got into his motor vehicle and driven away in the direction of Victoria Road. If he had kept driving in that direction he would have quickly enough taken himself and his passenger completely away from the scene of the fracas. What he is shown to have done, however, is to have stopped during the course of that journey towards Victoria Road, to have turned deliberately around, to have driven deliberately back to the scene of the fracas, and thereupon to have driven his vehicle at Mr. Webber and Mr. Piper, not in some state where his normal processes of reasoning were temporarily suspended, but with a deliberate and cold-blooded determination to exact revenge upon those who had, in his perception, so grievously offended him. There was, so far as I can see, absolutely no evidence to show that in the aftermath of the first impact, the appellant in some way lost his self-control in the sense now relevant, and was still so out of control when he involved himself in the second impact in the course of which the deceased was fatally injured. 59 In my opinion, there was no evidence capable, if accepted by the jury, of giving rise to a reasonable finding of fact that the appellant, at the time he inflicted the fatal injuries upon the deceased, had lost his self-control in the particular sense now relevant. In Peisley, to which I have earlier referred, Wood J, immediately following the passage earlier quoted from his Honour's judgment, said this: "Here, it seems to me that the evidence could not rise above a state of anger on the part of the appellant, arising out of an assessment by him that he was sick and tired of what he considered to be unreasonable conduct of ……..(the two particular victims in that case)…….. leading to a decision to go over and give them a good scare." 60 It is, of course, the case that the detailed facts of the appellant's case and the detailed facts in Peisley are not identical; but in my opinion it would take no great adjusting of Wood J's assessment in Peisley to describe what I would consider to be the only finding reasonably available on the question whether the present appellant did in fact lose his self-control in the relevant sense. 61 Even if I be mistaken in the foregoing conclusions: that is to say, even if the better view is that there was evidence fit to go to the jury on the requisite element of loss of self-control, it was still necessary to identify, before leaving provocation to the jury at trial, evidence which, if accepted by the jury, was capable of supporting reasonably a finding that the provocation put forward by the appellant not only caused him to lose his self-control in the relevant sense, but was such as could have caused an ordinary person in the appellant's position so far to lose his self-control as to form an intent to kill or to inflict grievous bodily harm. 62 After proper allowance has been made for the fact that the appellant was aged only a little more than 22 years at the time of the relevant incidents; and for the facts that he was seriously drunk, seriously angry, and in all likelihood humiliated by having been in large part bested in a street brawl which he himself had in large part instigated; there remained in the evidence at trial, in my opinion, nothing capable of supporting a rational assessment that an ordinary person answering to that description and in the appellant's relevant position at the time could have so far lost his reason as to have formed an intent to kill or to inflict grievous bodily harm upon those who had recently been his adversaries. 63 For the whole of the foregoing reasons I have come to the conclusion that Hidden J did not err in his decision not to leave provocation to the jury at trial. Sentence 64 Once it is accepted that the convictions should stand, then I am unpersuaded that the sentence passed upon the appellant was outside the range of a properly exercised sentencing discretion. 65 In that connection it is, I think, relevant to recall what was said by Street CJ in Murnin: NSWCCA, 16 August 1985: "A motor vehicle is a potentially dangerous - indeed lethal - machine. Those who drive motor vehicles on public highways, as do the overwhelming majority of members of our community, must inevitably accept that if they drive those potentially lethal machines dangerously and occasion death or grievous bodily harm, then the criminal law will exact from them a penalty appropriate to the degree of criminality which the whole of the circumstances disclose. The Legislature has always placed a premium upon human life and the taking of a human life by driving a vehicle dangerously is by virtue of this particular section to be regarded as a crime of some seriousness." 66 That statement has been reaffirmed in this Court. When, as in the present appellant's case, the crime to be punished is not the crime of dangerous driving causing death, but the crime of murder where the murder weapon is a motor vehicle, then the foregoing statements of principle are strengthened even further, and must be applied accordingly by a primary sentencing Judge. Hidden J described the overall course of the appellant's behaviour as a "dreadful criminal enterprise". I respectfully agree. 67 Hidden J seems to me, if I may respectfully say so, to have given all proper consideration to the available subjective considerations. In that connection his Honour was constrained, of course, by repeated statements of this Court emphasising that crime of the kind here being considered is all too frequently committed by young offenders of previously good character, and that general deterrence is very much a consideration to be kept in mind in framing an appropriate sentence. See for example per Hunt CJ at CL in Slattery (1996) 90 A Crim R 519 at 522, 523 and the cases, (Murnin is one of them), there referred to. Orders 68 For the whole of the foregoing reasons, I would favour the following orders: 1. that the appeal against convictions be dismissed; 2. that leave be granted to appeal against sentence; 3. that the appeal against sentence be dismissed. IN THE COURT OF CRIMINAL APPEAL 60397/99 MEAGHER JA SULLY J HOWIE J 25 May 2001 REGINA v Brian Morgan HALL JUDGMENT 69 HOWIE J: I agree with Sully J. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.