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: whether that conduct of the deceased occurred immediately before the act or omission causing death or at any previous time." 6 The appellant's written submissions contain the following passage: "It is accepted that his Honour's directions to the jury both in written and oral form (pages 17 to 25 of the summing-up) are in conformity with the decision of the High Court in Stingel v The Queen (1990) 171 CLR 312 confirmed in Masciantonio v The Queen (1995) 183 CLR 58 and R v Green (1997) 191 CLR 334. Whilst the decision in Stingel applied to section 160 of the Tasmanian Criminal Code, it is acknowledged that that decision has application to the consideration on the operation of section 23(2)(b) of the NSW Crimes Act. It is further acknowledged that his Honour was bound as is this Court by these decisions of the High Court." 7 In Stingel v R (1990) 171 CLR 312 the court of seven Justices (including McHugh J) held that in applying the Tasmanian equivalent to section 23(2)(a) it is necessary to take into account all the characteristics of the particular accused person. They said (at 326): "Even more important the content and extent of the provocative conduct must be assessed from the viewpoint of the particular accused. Were it otherwise it would be quite impossible to identify the gravity of the particular provocation. In that regard, none of the attributes or characteristics of a particular accused will be necessarily irrelevant to an assessment of the content and extent of the provocation involved in the relevant conduct. For example, any one or more of the accused's age, sex, race, physical features, personal attributes, personal relationships and past history may be relevant to an objective assessment of the gravity of a particular wrongful act or insult. Indeed, even mental instability or weakness of an accused could, in some circumstances, itself be a relevant consideration to be taken into account in the determination of the content and implications of particular conduct." 8 However, the Justices also held in relation to the Tasmanian equivalent to section 23(2)(b) that the ordinary person is not to be invested with any characteristic of the accused other than age. At 331 they said that the effect of the legislation: "is to pose for the jury the question whether, in all the circumstances of the case, the wrongful act or insult, with its implications and gravity identified and assessed in the manner we have indicated, was of such a nature that it could or might cause an ordinary person (or, when appropriate, an ordinary person of the age of the accused), that is to say, a hypothetical or imaginary person with powers of self-control within the limits of what is ordinary (for a person of that age), to do what the accused did." 9 In Masciantonio v R (1995) 183 CLR 50A at 66-70 four Justices comprising the majority did not depart from the law as stated in Stingel v R. McHugh J, however, considered that in relation to section 23(2)(b) the test stated in Stingel v R should be departed from. The 'ordinary person's standard' should incorporate 'the general characteristics of an ordinary person of the same age, race, culture and background as the accused on the self-control issue' (at 73). 10 In Green v R (1997) 191 CLR 334 McHugh J repeated at 368 the position he had stated in Masciantonio v R but this position continued to attract no support from any other Justice. 11 Sperling J directed the jury in accordance with the majority High Court view, and abstained from directing the jury conformably to the view of McHugh J. 12 In the circumstances the appellant's concession that this Court is bound by a construction of section 23(2)(b) which is adverse to the success of the appeal is sound. It would have been wrong for Sperling J to have directed the jury differently and it would be wrong for this Court to allow the appeal. Any other approach would be completely subversive of order in the law. The only avenue available to the appellant is an application to the High Court for special leave to appeal, coupled with an application to that court for leave to re-argue the correctness of the authorities in that court which binds other courts. 13 In the circumstances there is no point in examining the detailed factual analysis advanced on behalf of the appellant in an endeavour to demonstrate that the application of the test propounded by McHugh J might have led to acquittal. 14 I propose that the appeal against both conviction and sentence be dismissed. 15 BARR J: I agree. 16 SMART AJ: The appellant seeks to have this Court follow the judgments of McHugh J in Masciantonio v The Queen 183 CLR 58 at 72-74 and Green v The Queen 191 CLR 334 at 368 and hold that when a jury is considering whether the provocation was capable of causing an ordinary person in the position of the accused to lose self-control it should take into account the ethnic or cultural background of the accused. 17 That is not an approach which is open to this Court in view of the decisions of the High Court in Stingel v The Queen 171 CLR 312, Masciantonio and Green. Any review of those decisions must be undertaken by the High Court. Central to any review are the terms of section 23(2)(b) of the Crimes Act 1900. 18 In practice the gravity of provocation/self-control distinction has proved hard to explain to a jury in terms which are intelligible to them. In Regina v Rogonui 13 April 2000, the New Zealand Court of Appeal gave consideration to the problem. Tipping J giving one of the majority judgments, which held that the New Zealand statute on provocation (section 169 of the Crimes Act 1961) required the application of the distinction, said that it required 'mental gymnastics'. Thomas J, who thought that the statute did not have to be construed so rigidly, said that most trial Judges had seen: "the glazed look in the jurors' eyes as, immediately after instructing them that it is open to them to have regard to the accused's alleged characteristic in assessing the gravity of the provocation, they are then advised that they must revert to the test of the ordinary person and disregard that characteristic when determining the sufficiency of the accused's loss of self-control." 19 I would go a little further. Many trial Judges in this State give juries both verbal and written directions on provocation. Juries struggle with the distinction and find it hard to grasp. Many do not do so. The directions on provocation and the distinction frequently lead to a series of questions indicating that these issues are causing difficulty, prolonged deliberation by juries and, not infrequently, to juries being unable to agree whether the accused is guilty of murder or manslaughter. This leads to a re-trial. I have been left with the firm impression that, despite extensive endeavours to explain the directions, the jury has had trouble appreciating their import. Other trial Judges have had similar experiences. It is important that juries have a good understanding of what they are required to do. 20 The House of Lords has recently reviewed this area of the law in considerable depth and on a broad basis. If its approach were ultimately to find favour it would encompass but not be restricted to the matters which the appellant seeks to advance. In Regina v Smith (Morgan) 2000 3 WLR 654 the House, by a majority of three to two, held that in determining under section 3 of the Homicide Act 1957: "whether provocation was enough to make a reasonable man do what the defendant did, the jury was required to ask whether the degree of self-control exercised by the defendant was that which reasonable people with his characteristics would have exercised, that all the particular characteristics of the defendant were to be taken into account in deciding both whether he was in fact provoked and whether the objective element of provocation was satisfied; that the question for the jury was whether the circumstances were such as to make the loss of self-control sufficiently excusable to reduce the gravity of the offence from murder to manslaughter; that the jury had been entitled to take into account the effect of the defendant's depression in relation to the question whether he had measured up to the standard reasonably required of him". (Headnote at 654). 21 I am not unmindful of the differences between the English and the New South Wales legislation. At 661 Lord Slynn said: " ... the particular characteristics of the accused may be taken into account at both stages ... " and "moreover the distinction between the 'objective' and 'subjective' tests ... is very difficult for a jury and I doubt whether it is really workable." 22 At 672-673 Lord Hoffmann pointed to the practical difficulties of explaining the distinction between gravity of provocation and powers of self control. He noted that in many cases "the two forms of claim are inextricably muddled up with each other." At 674 Lord Hoffmann emphasised, "For the protection of the public, the law should continue to insist that people must exercise self-control." Lord Hoffman referred with approval to the actual decision in Stingel. 23 He regarded it as important to retain the objective element in provocation and suggested that this could be achieved by a direction that characteristics such as jealousy and obsession should be ignored in relation to the objective element. 24 At 681 Lord Clyde said: "In principle it is not easy to see how the plight of the individual accused can appropriately be taken into account if the standard of his conduct is to be tested by reference to an artificial concept remote from his own situation". 25 There is an illuminating discussion of the problems by his Lordship at pp.682-684. "This difficult area of the law could, with profit, be further considered. The practical difficulties of the current approach and the lack of understanding of the distinction by juries cannot be over-emphasised." 26 On the law, as expounded by the High Court in its three decisions earlier mentioned, the appeal must be dismissed. 27 HEYDON JA: The order of the Court is that the appeal will be dismissed. ********** 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.