R v Mankotia [2001] NSWCCA 52

Reported Decision : 120 A Crim R 492

New South Wales Court of Criminal Appeal

CITATION : R v Mankotia [2001] NSWCCA 52 FILE NUMBER(S) : CCA 60779/98 HEARING DATE(S) : 28 February 2001 JUDGMENT DATE : 28 February 2001

PARTIES : R v Blinder Kumar Mankotia JUDGMENT OF : Heydon JA at 1; Barr J at 15; Smart AJ at 16

LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 70049/97 LOWER COURT JUDICIAL Sperling J OFFICER :

COUNSEL : Crown: Ms E Wilkins Appellant: Mr P Zahra SC SOLICITORS : Crown: S E O'Connor Appellant: D J Humphreys CATCHWORDS : Criminal Law - Appeal against conviction - Murder - Defence of provocation - Trial judge's directions to jury on provocation - Whether personal characteristics of accused should be imputed to the "ordinary person" by jury when applying s 23(2)(b) of the Crimes Act and determining whether defence of provocation made out - Whether New South Wales Court of Criminal Appeal bound by High Court decisions on provocation - Stingel v R (1990) 171 CLR 312 - Masciantonio v The Queen (1995) 183 CLR 58 - R v Green (1997) 191 CLR 334 - Crimes Act 1900 (NSW), s 23(1) and (2) LEGISLATION CITED : Crimes Act 1900 (NSW) Green v R (1997) 191 CLR 334 Masciantonio v R (1995) 183 CLR 50A CASES CITED: R v Rogonui, 13 April 2000, NZCA R v Smith (Morgan) 2000 3 WLR 654 Stingel v R (1990) 171 CLR 312 DECISION : Appeal dismissed.

IN THE COURT OF CRIMINAL APPEAL

60779/98

HEYDON JA BARR J SMART AJ

Wednesday, 28 February 2001

REGINA v Blinder Kumar MANKOTIA

JUDGMENT

1 HEYDON JA: On 1 August 1998, after a trial before Sperling J and a jury, the appellant was convicted of murdering Helena Pishova. On 27 November 1998 he was sentenced to a minimum term of twelve years' penal servitude to commence on 25 March 1997 and to expire on 24 March 2009, and an additional term of four years to commence on 25 March 2009 and to expire on 24 March 2013. 2 The appellant appeals against both conviction and sentence. However, no submissions were advanced in relation to the sentence, and the appeal must be dismissed so far as that ground is concerned. 3 The one ground of appeal in relation to conviction was: "His Honour erred in directing the jury that in considering the objective test of provocation under section 23(2)(b) of the Crimes Act (NSW) that the personal characteristics of the accused to be attributed to the ordinary person do not include the accused's ethnic or cultural background." 4 The factual background is that the appellant was born in a village in India on 15 March 1970. The trial Judge said that the culture from which he came was "a very rigid one". The custom of arranged marriages prevailed. The appellant never had a girlfriend before coming to Australia in 1996 and meeting the deceased in late 1996 or early 1997. They began to go out together. The appellant fell deeply in love with the deceased. However, on 23 March 1997, the deceased telephoned the appellant without prior warning and said the relationship was over. This greatly shocked the appellant. On the evening of 25 March 1997 the appellant went to the deceased's flat. She persisted in her refusal to continue the relationship. The appellant became enraged and attacked her with a knife in a fit of fury. 5 Section 23(1) and (2) of the Crimes Act 1900 (NSW) provide: "1(1) Where, on the trial of a person for murder, it appears that an act or omission causing death was an act done or omitted under provocation and, but for this sub-section 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 purpose of sub-section (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: