REGINA v TURK [2001] NSWCCA 547

New South Wales Court of Criminal Appeal

CITATION : REGINA v TURK [2001] NSWCCA 547 FILE NUMBER(S) : CCA 60684/00 HEARING DATE(S) : 10 August 2001 JUDGMENT DATE : 10 August 2001

PARTIES : Regina Andrew Mark Turk JUDGMENT OF : Spigelman CJ at 1, 23; Grove J at 2; Einfeld AJ at 3

LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 70006/00 LOWER COURT JUDICIAL Bell J OFFICER :

COUNSEL : C B Craigie (Appellant) R A Hulme (Crown) SOLICITORS : D J Humphreys (Appellant) S E O'Connor (Crown) CATCHWORDS : CRIMINAL LAW - murder - appeal against conviction - whether direction on provocation required - where no evidence of loss of self-control - whether summing up incomplete because particular evidence not referred to. LEGISLATION CITED : Crimes Act Mancini v Director of Public Prosecutions [1942] AC 1 CASES CITED: Moffa v The Queen (1976-1977) 138 CLR 601 R v Hall [2001] NSWCCA 202 DECISION : Appeal dismissed.

IN THE COURT OF CRIMINAL APPEAL 60684/00

SPIGELMAN CJ GROVE J EINFELD AJ

Friday 10 August 2001 REGINA v ANDREW MARK TURK Judgment 1 SPIGELMAN CJ: I agree with Einfeld AJ. 2 GROVE J: I also agree. 3 EINFELD AJ: The Appellant appeals against his conviction for murder said to have been committed on 11 March 1999 in Nyngan. 4 The victim was Kevin William Forester. The conviction took place at the hands of a jury on 11 October 2000 after a trial before her Honour Justice Bell, and a jury at Dubbo which commenced a week earlier. 5 On 13 October her Honour sentenced the Appellant to eighteen years imprisonment to commence on the day after the crime. She specified a non-parole period of fourteen years and fixed the first date for eligibility for release on parole as 11 March 2013. 6 The date 11 March for the offence is of some significance. In an incident on 12 February, just one month earlier, the Appellant was apparently dragged out of a car by the deceased and assaulted in a relatively minor but humiliating way. 7 On 6 March, just five days before the crime, the Appellant was noted as requesting information about the whereabouts of the deceased, but although a place where he might be found was identified, nothing happened. 8 Earlier, on the evening of 11 March, the deceased was at the home of the Appellant's then female companion. The police watched the deceased thereafter and regarded him as potentially violent but did not apprehend him. 9 The deceased then went to the home of a Mr and Mrs Rogers in Cannonbar Street, Nyngan. The deceased arrived and shortly after assaulted the Appellant causing his nose to bleed and him to stagger and fall. The deceased went to the kitchen to seek a knife and returned to stand over the Appellant on the floor, threatening him with a knife. Mrs Rogers yelled at the two men to leave. Her evidence was that the deceased was the aggressor in the encounter and had not been provoked by the Appellant in any way. The Appellant was later heard on the same night to evince an intention to retaliate for this event. "I'm going to get Forester" was one expression quoted. Another one was, "I'll go and stab him. See if he likes it". 10 The Appellant explained these remarks at the trial as 'big-noting' himself. In fact what happened was that the Appellant then went to the home of a Mr and Mrs Ryan. Mr Ryan died in an accident before the trial so was not able to give evidence. The other evidence was that when the Appellant saw the deceased in the house he went straight up to him and with virtually no conversation inflicted a number of fatal stab wounds with the knife. 11 The Appellant's case was that the late Mr Ryan killed the deceased while he was unconscious because of actions by the deceased, an argument her Honour dismissed as "frankly incredible" in her remarks on sentence. 12 This appeal centres on an alleged error by her Honour to instruct the jury on the defence of provocation and thus to leave open a verdict of manslaughter. Section 23(2) of the Crimes Act 1900 provides in part: "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 towards or affecting the accused …" 13 Neither party at the trial sought a direction on provocation. In fact, each expressly disavowed her Honour's request in relation to the matter. It is well settled that a trial judge has a duty to leave to the jury any matter which might reasonably be found. 14 Defence counsel has sworn an affidavit stating that this was done in error on his part and that if he was doing the trial again he would not oppose her Honour's offer, as he put it, to leave provocation to the jury. 15 Her Honour considered doing so, but decided that it was not appropriate because there was no evidence of a loss of self-control. 16 In Mancini v Director of Public Prosecutions [1942] AC 1 at 8, Viscount Simon said that the evidentiary threshold for provocation will be held to be satisfied when: "… the evidence given before the jury is such as might satisfy them as the judges of fact that the elements were present which would reduce the crime to manslaughter, or, at any rate, might induce a reasonable doubt whether this was, or was not, the case." 17 It was further held at 12: "If the evidence before the jury at the end of the case does not contain material on which a reasonable man could find a verdict of manslaughter instead of murder, it is no defect in the summing-up that manslaughter is not dealt with." 18 In Moffa v The Queen (1976-1977) 138 CLR 601 at 613 Gibbs J held: "Although the onus of establishing that the killing was not provoked lies on the Crown, it is a question for the decision of the judge whether there is evidence upon which a jury could reasonably return a verdict of manslaughter on the ground of provocation, and it is established that a trial judge should withdraw an issue of provocation from the jury if the evidence could not reasonably support the conclusion that the provocation was of such a character as could have deprived a reasonable person of the power of self-control to such an extent as to lead him to do what the accused did." 19 One of the examples given in the cases of failing to reach the necessary threshold was characterised by this Court as indicating: "… 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 inflict grievous bodily harm upon those who had recently been his adversaries." (See R v Hall [2001] NSWCCA 202 at [62]) 20 In my opinion the conclusion by her Honour that there was no evidence upon which a jury, reasonably instructed, could make a finding in accordance with s23(2)(a) was manifestly correct. In these circumstances the appeal should be dismissed. 21 The Appellant raised also a second ground that the trial judge erred in the course of her summing-up as to whether there was evidence of a second voice heard by a witness, Wardman, immediately following the fatal altercation which the Crown allege occurred between the Appellant and the deceased. Mr Wardman was not in the house at the time but is said to have heard a voice that may not have been the Appellant's, which was making appropriate remarks that might have pointed to another person having committed the crime. 22 I have carefully considered the submissions made in this regard and concluded that there is no substance to them. On this ground also the appeal is dismissed. 23 SPIGELMAN CJ: The order of the Court is that the appeal is dismissed. **********