Reported Decision : 151 A Crim R 426 New South Wales Court of Criminal Appeal CITATION : R v ROBERT THEO SIEVERS [2004] NSWCCA 463 HEARING DATE(S) : 24th February 2004 JUDGMENT DATE : 17 December 2004 JUDGMENT OF : Levine J at 1; Simpson J at 58; Barr J at 88 DECISION : By majority: 1. Appeal against conviction dismissed.; 2. Leave to appeal against sentence granted.; 3. Sentence appeal dismissed. CATCHWORDS : Murder - provocation - whether trial judge's directions reduced the 'standard' for Crown to accused's disadvantage - Crimes Act 1900 s23(2)(b) - consciousness of guilt - propriety of and necessity for directions when manslaughter an available verdict - life sentence - second conviction for murder of spouse LEGISLATION CITED : Crimes Act 1900 ss 19A, 23(1), 23(2)(a), 23(2)(b) Crimes (Sentencing Procedure) Act 1999 s 61 Edwards v The Queen (1993) 178 CLR 193 Green v The Queen [1997] HCA 50, (1997) 191 CLR 334 Heron v The Queen [2003] HCA 17, (2003) 197 ALR 81 Masciantonio v The Queen (1995) 183 CLR 58 CASES CITED : Regina v Baker (unreported, NSWCCA 20 September 1995) Regina v Harris (2000) 50 NSWLR 409 Regina v Hodge [2002] NSWCCA 10 Regina v Noelene Anderson [2002] NSWCCA 194 Regina v Toki [2003] NSWCCA 125 Regina v Twala (unreported, NSWCCA 4 November 1994) REGINA (Respondent) PARTIES : v THEO ROBERT SIEVERS (Appellant) FILE NUMBER(S) : CCA 60346 of 2003 R Hulme SC Appellant COUNSEL : L Lamprati SC Crown S E O'Connor Appellant SOLICITORS : S Kavanagh Crown LOWER COURT Supreme Court JURISDICTION : LOWER COURT 70037 of 2002 FILE NUMBER(S) : LOWER COURT Sully J JUDICIAL OFFICER : [2004] NSWCCA 463 IN THE COURT OF CRIMINAL APPEAL 60346 of 2003 LEVINE J SIMPSON J BARR J Friday 17 December 2004 REGINA v ROBERT THEO SIEVERS Judgment 1 LEVINE J: The appellant's trial commenced on 21 October 2002 before Sully J and a jury in Sydney. Upon his being indicted for murder the appellant pleaded not guilty of murder but guilty of manslaughter on the basis of provocation. On 31 October 2002 the jury returned a verdict of guilty to murder. On 18 December 2002 the appellant was sentenced to life imprisonment for the murder of Michelle Josephine Campbell. 2 It was clear from the outset of the trial that the only practical issue for the jury was whether the appellant was guilty of murder or manslaughter on the basis of provocation. In his opening address, counsel for the accused spoke at length as to the anticipated evidence of events over the days leading up to a confrontation with Ms Campbell that culminated in the appellant stabbing her to death. The appellant had been in a relationship with the deceased for a few months before he killed her by inflicting a number of stab wounds. 3 After the opening addresses the appellant made the following admissions before the jury: 1. That on 4 July 2000 at 74 McDonald Street, Lakemba, he stabbed Michelle Campbell. 2. That his action of stabbing Michelle Campbell brought about her death. 3. That he transported her body by car to the place (where) it was found west of Bellbrook on the Armidale Road. 4. That he left her body at that place sometime on 7 July 2000. 5. Between 6 July 2000 and 2 August 2000 he withdrew various sums from the deceased's bank account. 4 As was submitted by Mr Hulme SC on behalf of the appellant, the case on the issue of provocation was certainly viable. The Court was referred to the evidence given by the appellant (at T206-7): "Q. Can you tell us firstly just on 4 July how it was that you did that? A. Can you please repeat that? Q. On 4 July? A. Mmm mmm. Q. You and Michelle Campbell were together and you stabbed and killed her, correct? A. Yes. Q. Just tell the jury slowly how it was you did that? A. Well, over a period of about four days I was just verbally abused, physically abused and I got hit on the side of the head with a hammer and was hit with the shoes, stabbed with syringes, me eyes was gouged, nose was bitten, scratches and during all this time over this period of three or four days I never showed her any violence, I wasn't violent towards her. On the Tuesday, when she came back to the house, I don't know, I think I was cleaning up or something and she came back. Anyway, she partly got undressed and she went into the kitchen and took the knife and came to stab me. I cut my right thumb and I put me arms round her to try to settle her down and she started scratching me face and biting me again and, I don't know, I don't really recall what happened after that because I just sort of totally lost it. I think I just, all me self control, just absolutely gone. I just went bananas, berserk and in the next, those few moments, you know, I just don't really recall a lot of what happened in that period of time after that and that is probably about it". 5 The appellant's account was supported by evidence given during the course of the Crown case. Some of the highlights that supported the appellant's case and which were referred to by counsel for the appellant in his submissions was the evidence of a Mr Justin Harrison who confirmed the incident in relation to the hammer: the deceased, after hitting the appellant with the hammer, hit him on the head with a shoe. There was evidence from Michael Stevens, the estranged husband of the deceased, as to the deceased undergoing a personality change and becoming aggressive when she did not take her medication, that she had punched him in the arm or leg. Police attended the premises at McDonald Street, Lakemba, on a number of occasions on 2 and 3 July (the death occurred on 4 July). The appellant had called the police with an allegation that a female was going berserk and causing damage to the property. That was on 2 July. On 3 July the police attended the premises again; the appellant told the police that he punched the deceased to stop her from biting him. They noticed a laceration. A Dr Lee gave evidence that the appellant consulted him on 5 July with a black left eye, minor cuts and bruises on the right cheek and nose, a small cut on the left wrist, a small cut on the right thumb and bruises. The appellant complained that he had been assaulted by his girlfriend on Monday 3 July and that was the cause of his injuries. It was the doctor's evidence that the injuries were consistent with the history given, not least that the appellant on 2 July had been hit with a high-heeled shoe and had held up his arm to protect himself. There was other evidence of the appellant having had a black eye and scratches on his face and having complained he had been in a fight with a girl he was living with. 6 The three of four days which preceded the homicide were described by appellate counsel as days of "reasonably extreme physical conflict as well as verbal altercations between the deceased and the appellant". 7 There are two grounds in the conviction appeal: 1. The trial miscarried because of an error in directions to the jury as to provocation; 2. The trial judge erred in his directions to the jury as to consciousness of guilt. Ground 1: directions as to provocation 8 For the appellant it was submitted that he was provoked, he lost his self-control. Evidence in relation thereto came only from him. It was a matter for the jury whether they accepted the appellant's account; it could at least be argued that it was not inherently implausible. There was no direct evidence contradicting the appellant's assertions. Thus, it was submitted, consequentially the strongest possibility for the Crown to negative provocation was in relation to the objective test in s23(2)(b) of the Crimes Act 1900: whether the provocation "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" (it is to be noted that his Honour made express findings under the section for the purposes of sentencing). 9 In addition to his Honour's summing-up the jury was provided with written directions (MFI17). 10 His Honour, it is submitted for the appellant, correctly directed the jury (SU 54.10): "…could Miss Campbell's relevant conduct have induced an ordinary person in the position of the accused…at the relevant time not merely to have lost his self-control, but to have lost it so far as to have formed an intent to kill or to inflict some grievous bodily harm?" 11 In MFI17 his Honour (at page 5.2) uses virtually the identical language. This language conforms with the wording of s23(2)(b). 12 The nub of the complaint is his Honour's "variation" (my word) in the language he subsequently used and repeated in both the oral and written directions. 13 In his summing-up his Honour said (at SU 56): "Could an ordinary person, - not the accused with his particular characteristics, - could an ordinary person who took that level of offence be expected , in your opinion, to respond to the offence by forming the intention either to kill or to inflict grievous bodily harm upon the person who had offended him? When you have sorted out your answers to those questions, you will then be in a position to address the questions which are set out for you on page 6 or, more precisely, to address the options which are set out for you in the four numbered paragraphs on page 6. Let us look at those. If the Crown persuades you beyond reasonable doubt to answer question 2 "no", then question 3 does not arise. Provocation ceases to be a live issue and the verdict should be one of guilty of murder. If the Crown does not persuade you beyond reasonable doubt to answer question 2 "no" then question 3 does arise. In that event, if the Crown persuades you beyond reasonable doubt that an ordinary person, offered the relevant level of offence, could not have been expected to have responded by forming an intent to kill or inflict grievous bodily harm, then the Crown would have excluded provocation, and the verdict should be one of guilty of murder. The converse is equally applicable. If the Crown does not persuade you beyond reasonable doubt that an ordinary person, offered the relevant level of offence, could not have been expected to have responded by forming an intent to kill or inflict grievous bodily harm, then the Crown will not have excluded provocation and the verdict should be one of not guilty of murder but guilty of manslaughter". 14 His Honour's use of the phrase "could not have been expected" was repeated at page 6 of the written directions (MFI17). 15 Rule 4 applies. An affidavit of trial counsel sworn 23 February was read in the appeal. Counsel states that he failed to appreciate that the use of the "expected" in the directions given imported an additional element into the test and his failure to seek a redirection in the matter was consequently not for tactical forensic advantage. 16 The argument of the appellant is that s23(2)(b) speaks of whether the conduct of the deceased was such as "could have induced" the ordinary person to form a certain intent in the relevant circumstances. This, it is argued, denotes a possibility or a chance that this could occur. To speak in terms of a response to provocative conduct that could or could not be "expected", it is submitted, elevates this to a consideration of a probable or likely response and thus reduces the Crown's burden of satisfying a jury beyond reasonable doubt that this aspect of provocation has been eliminated. 17 It is to be noted that his Honour repeatedly used the word "could" when he used the word "expected". 18 The appellant acknowledges that the phrase "could have" is used in most judgments dealing with the topic of provocation or referring to directions that have been given by trial judges. In New South Wales this is unsurprising because the statutory context provides the language. There are some departures, but the alternatives usually leave the test at the same level. If what his Honour did here is a departure, is the test at the same level? 19 Mr Hulme SC informed the Court that his researches had failed to identify any case in which the phrase "could (not) have been expected" has been used. 20 We were referred to the consideration of the common law treatment of provocation in Masciantonio v The Queen (1995) 183 CLR 58 in which Brennan, Deane, Dawson and Gaudron JJ referred to there being "a large degree of conformity in the law of provocation whether it be common law or statutory" (at 66). In the ensuing discussion their Honours used the terms "capable of causing" and "could cause" in relation to the nexus between the provocative conduct and the ordinary person. 21 In Green v The Queen (1997) 191 CLR 334 (a New South Wales appeal) Toohey J at 354 adopted an alternative expression to the use of the words in the section, "…the possible effect of the conduct…" – but the concept is the same. 22 It was in Heron v The Queen [2003] HCA 17, (2003) 197 ALR 81 that scrutiny was given to the use by the trial judge in directing the jury as to the objective component of the test for provocation in terms of what an ordinary person "must" or "would" have done. In separate judgments the five judges unanimously accepted that this was a misdirection (Gleeson CJ, McHugh, Kirby, Hayne and Callinan JJ). Kirby J (at [33]) in referring to the use by the trial judge of "would" or "must" instead of "could", specifically confirmed "[b]y the terms of the statute the test in New South Wales is one of possibilities". His Honour later referred (at [53]) to the directions as including an "incorrect verb of probability rather than possibility". 23 In Regina v Noelene Anderson [2002] NSWCCA 194 there was a reference by the trial judge in response to a jury question to the objective test in terms of "… would cause in any reasonable person…". McClellan J, with whom Meagher JA and Bell J agreed, referred to the use of "could" in the section and said, "His Honour, by introducing the word "would" has imposed a far more stringent test by which the jury was to assess the conduct of the deceased" (at [33]). In Anderson, no objection had been taken at trial, but the inadequacies of the direction were held to go to "fundamental elements of the charge of murder". 24 During the course of submissions various concepts were raised. It was suggested that the language used by the learned trial judge "transforms the subjective possibility into an objective probability". 25 Further, there was a suggestion that there are two alternative ways of putting the s23(2)(b) position: first, could the conduct have induced an ordinary person to respond by forming a certain intention; second, could an ordinary person be expected to respond by forming the same intention. It was suggested that if the second formulation were "reformulated" in this way, "could an ordinary person have responded by forming that intention", that would be saying the same thing, to which the Crown agreed. 26 In my view, even without recourse to Roget's Thesaurus as to "expect" and the Concise Oxford Dictionary, the question is whether the intrusion of the word "expect" has affected, adversely to the appellant, the burden imposed upon the Crown under the relevant subsection. One should not leap to conclusions about the sudden appearance of a word that is not expressly stated within a subsection, the more so, I might add with the utmost respect, when the word is employed by a senior member of this Court whose care for and with the English language is well known and respected. 27 My concern here is that we are not dealing with "fine distinctions". We are dealing with the ordinary meaning of words, and I do not understand the use of the word "expect" to mean anything more than "think" or "suppose" or "come to the view that", "contemplate" or "have in mind". For myself, the use by his Honour of the word "expect" in the various contexts to which reference has been made would be more readily understood than perhaps the repetition of the word "induced", a word in context that does not, arguably, lend itself to ready understanding. 28 As has been stated above, his Honour employed, time and time again, the one word that covers the burden of that section in terms of standard, and that is the word "could". His Honour's use of that word "could" together with the word "expect", understood in the way that I have indicated, as it would ordinarily be understood, does not amount to any erroneous departure from a proper direction in the circumstances of this trial. 29 As the Crown pointed out, notice of the use of the word "expect" was given to both the Crown and the defence prior to the summing-up by his Honour faxing to each side his proposed written directions. Neither that act, not his Honour's use of the word "expect" orally, provoked either side, especially the defence, at the time of the trial in which clearly the principal issue was provocation, to make any complaint. 30 Not for one moment am I suggesting that trial counsel's affidavit is otherwise than reflective of the view he had at the time he swore it. The reality was that neither his Honour's written directions or oral directions had any impact at all on either counsel. The real reason for that is that the words both read in MFI17, and more importantly, as heard, in the context of the whole of the summing-up, at the time that the jury were considering both, could have no impact. The words as written and spoken contained nothing, on an ordinary understanding of the English language, to alert anyone to the asserted "elevation" to a "consideration of probable or likely response" (as per the appellant's written submissions). 31 I would hold that no error has been shown. Rule 4 should apply. Ground 2: directions as to consciousness of guilt 32 It is quite clear that after the killing of Ms Campbell the appellant, (as was conceded in written submissions), conducted himself in a way compelling the conclusion that he was motivated by a consciousness of guilt. Those actions included disposing of the knife, cleaning up the crime scene, disposing of the body, making false denials when interviewed by police and moving to South Australia and then to Western Australia ("going to ground"). 33 The appellant admitted in his evidence before the jury that he was acting out of a consciousness of guilt (at T246-247): "Q. Why did you move away from Sydney? A. I just wanted to get as far away from New South Wales as I possibly could. Q. Why was that? A. Probably because I was, I will say it would have been because I started to get a guilt complex and just to get away from the police and I didn't want to get locked up". 34 Complaint is made in relation to his Honour's directions to the jury as to consciousness of guilt. Two passages from his summing-up are cited as exposing the error upon which the appellant relies. His Honour said: "…(Y)ou reason from those to the conclusion, - or, if you like, draw rationally the inference, - that all those acts and things said and done by the accused do not have any rational explanation other than the explanation that he was, in effect, signalling a consciousness of guilt; consciousness that he was guilty, not of something, but guilty of the crime charged against him, which in this case is the crime of murder" (SU 24.51) "Remember, there must be no other rational inference available from the whole of the material put forward except that what was done evidences consciousness of guilt, not of something, but of the crime actually charged" (SU 26.18) 35 Further, in MFI17, the written directions to the jury, his Honour had included the following: "Keep carefully in mind that the Crown argument about consciousness of guilt cannot succeed unless the Crown persuades you that the only rational inference to be drawn from what the accused said and did is that the accused, when so speaking and acting, was in fact acknowledging , not that he was guilty of some crime or other, but that he was guilty of murder as now charged against him: that is to say, the intentional stabbing to death of the victim ". (emphasis added) 36 Prior to addresses and summing-up there had been discussion as to whether his Honour should direct the jury with respect to the material the subject of the consciousness of guilt component otherwise than by limiting it to the charge in the indictment, namely murder, in circumstances where unlawful and dangerous act manslaughter was, contrary to the appellant's wish, as I understand it, also to be left to the jury. 37 The Crown had led the evidence in relation to the consciousness of guilt material solely on the count in the indictment, namely murder, and in the face of the issue of provocation having been raised. 38 In the course of his closing address the Crown Prosecutor, having in effect catalogued the various matters to which I have referred, said to the jury: "Now, is this the behaviour of somebody who has temporarily lost their self-control, snapped back to a normal state of self-control and realised with sadness and shame what they had done? It's not. It is the behaviour of somebody who has known that what they have done is murder". 39 Defence counsel at trial responded as follows: "Now, you might think that contrary to what the Crown has suggested to you that that behaviour is consistent with someone losing control and killing someone. It is entirely consistent with someone losing control and killing someone and not wanting to face up to it. While you might think that is reprehensible, I would suggest to you that the issue that you are faced with in this trial, which is whether he is guilty of murder or guilty of manslaughter, my submission to you is this, that you are not much assisted by the fact that he ran away. You are not much assisted by the fact that he that he told lies. You are not much assisted by the fact that he shaved his head for whatever purpose and in the light of the New South Wales Cabinet and Parliament stuff and fashions of shaven heads, I don't think you can make much of that but he did that and using a false name, Jones because you are not much assisted by that. The reason is this, that the Crown, the issue in this trial is whether the Crown has proved that he is guilty of murder, that is he intentionally killed or killed with the intention to cause grievous bodily harm and whether the Crown has proved that he didn't do that under provocation. You might think about feeling guilty about killing someone and taking the option of trying to get away with it doesn't help you at all on the issue of whether he was provoked because you know that if he was provoked then the verdict is manslaughter. Secondly, you might think that in running away and fleeing, telling lies and all those things is attributable to his understanding that he has done something wrong rather than the understanding of the legal characterisations of that wrong. My suggestion to you is that you might run away and you might tell lies and you might move to western Australia if you knew you were guilty of manslaughter. It is not as if anyone is going to give you a medal for being guilty of manslaughter, is it. Equally as if you were guilty of murder. That is what I suggest to you that you will not be able to use. What he did afterwards and focussing on the important issue is, the really verified issue in this trial. It is callous, sure it is. It is selfish, sure it is. It is unfeeling and so on. But he did know, didn't he, that he had just killed someone. He did know that he had just killed someone with a knife and that was serious you might think". 40 For the appellant it is argued that it is "dubious" at best that the Crown's contention was open on the evidence. It is said to assume that the expected behaviour of a person who has killed a person through provocation, upon regaining self-control, would be to feel "sadness and shame" but not guilt. I myself am not persuaded by that proposition. I am persuaded by the consequential proposition that the jury needed very careful directions to ensure that they understood the distinctions. However I am not persuaded by what is, at times, an elusive component of the appellant's submission to the effect that the jury needed to be directed that, if they found that the consciousness of guilt inference was open in respect of both murder and manslaughter, then it was "of no relevance to the task of determining what was, in all practical reality, the only issue in the case", namely provocation, or its elimination. The material going to consciousness of guilt was of relevance to the foundational basis for the consideration of provocation, namely that the act would otherwise have been murder. 41 After citing my judgment in Regina v Hodge [2002] NSWCCA 10 at [18] (which was concerned with the question of admissibility of evidence on the issue) the appellant goes on to assert that in the present case, without directions that required the jury to determine whether there was a consciousness of guilt of murder, as opposed to manslaughter (if they could determine that at all), the jury may well have regarded the overwhelming consciousness of guilt evidence as somehow strengthening ("bolstering") the case on murder as opposed to the case for provocation manslaughter. 42 That submission, and the emphasised part thereof, does not sit well in my view in terms with a direction, in writing, which became MFI16, which the appellant at trial sought, namely: "Keep carefully in mind that the Crown argument about consciousness of guilt cannot succeed unless the Crown persuades you that the only rational inference to be drawn from what the accused said and did is that the accused, when so speaking and acting, was in fact acknowledging, not that he was guilty of some crime or other ( for example manslaughter ), but that he was guilty specifically of murder as now charged against him: that is to say, the intentional stabbing to death of the victim". (emphasis added) 43 Of course, the jury received directions that the verdicts available in respect of the charge in the indictment were "guilty of murder", "guilty of manslaughter" and "not guilty". I am not persuaded that, on any reasonable or rational basis, it cannot be assumed that the jury realised that his Honour was speaking of murder to the exclusion of manslaughter when he was unambiguously directing them as to consciousness of guilt vis-à-vis the crime charged, namely murder. It is said that the terms of his Honour's written directions, quoted above, adds force to the appellant's position. I do not see how this can be so when the preferred direction, as contained in MFI16, by putting in parentheses "for example manslaughter", to my mind would be likely to confuse the jury. 44 His Honour committed no error in the manner in which he summed-up to the jury, both orally and in writing, on the issue of consciousness of guilt in relation only to the charge in the indictment. That conforms with both authority and practice. It was appropriate in my view that his Honour be especially unambiguous (as he was) when the issue, the only viable issue, was provocation, for the reason to which I have already adverted, namely that that does not become "live" until the jury is persuaded beyond reasonable doubt that, otherwise, the crime of murder has been proved by the Crown. 45 This ground of appeal fails. Application for leave to appeal against sentence 46 The learned trial judge found that the applicant's level of culpability, on the objective facts, was so extreme that the maximum penalty of life imprisonment was warranted and that that result was not precluded by a consideration of subjective features. 47 A complaint made on behalf of the applicant is that the attention payed to, conformably with his Honour's concern with, the applicant's criminal history, influenced his Honour to impose a sentence which was out of proportion to the objective gravity of the offence. 48 Some comfort was sought to be gained by the applicant from Hidden J's survey of a large number of "relationship murder" results in Regina v Toki [2003] NSWCCA 125. Although his Honour was in the minority in that case, his survey would offer a basis, or a starting point for, an applicable sentence if this particular trial and outcome could comfortably be accommodated, by reason of its facts and other aspects, within the class of case with which Hidden J was concerned. 49 The learned sentencing Judge was not satisfied that either the acts of the victim were not provocative in fact, or that there had in fact been a loss of self-control by the applicant. He was satisfied beyond reasonable doubt that it was the matter in s23(2)(b) which defeated the applicant's case on provocation. His Honour was further satisfied that the applicant intended to inflict grievous bodily harm, uncaring as to whether Ms Campbell might die. His Honour further was satisfied that if it were not for the applicant's antecedent crimes of violence, this murder could not be categorised as being in the worst-case category. His Honour found no element of premeditation, indeed as his Honour remarked, the facts were "largely uncontroversial". 50 As the applicant submits, subjective features available for consideration were that the applicant was a little short of 61 years of age when he stood for sentence; that he was in protective custody and would be so "for the foreseeable future"; he suffered physical health problems; he had endured unhappiness and deprivation in his background and, his imprisonment would be very harsh. 51 The applicant, on 19 September 1980, was convicted of the murder of his then wife and was sentenced to penal servitude for life. On 21 August 1992 that sentence was redetermined by Wood J (as his Honour then was) and a minimum term of 12 ½ years and an additional term of 5 years was imposed. That minimum term expired on 9 October 1992. His Honour (Sully J) was particularly impressed by the grievous circumstances of that first homicide. His Honour did pay special attention to the prior offences of the applicant, and determined to focus his attention "urgently and predominantly" upon the nature of any continuing risk to the community posed by the applicant. In the extensive remarks on sentence it can be seen that his Honour gave detailed consideration to the expert evidence before him, both oral and in writing from Dr Allnutt, Mr J Taylor, clinical psychologist for the Crown, and Dr Olav Neilssen for the appellant. 52 His Honour came to the following conclusions: that the applicant has a personality disorder by whatever technical terms it might be more particularly defined and described; the disorder manifests itself in acts of extreme physical violence committed in situations of great emotional stress and especially in situations of great domestic emotional stress; the disorder can lie dormant for periods, sometimes quite lengthy periods; but is a constant reality and a constant potential danger; that potential danger is particularly acute in the context of any serious personal relationship of the applicant with a woman, but especially with a woman who is herself emotionally dysfunctional. 53 His Honour then considered relevant legislation and case law in appropriate detail and in appropriate context. His Honour referred to s19A of the Crimes Act and s61 of the Crimes (Sentencing Procedure) Act; his Honour considered the decisions of Regina v Harris (2000) 50 NSWLR 409; the moving and powerful dissent of Allen J in relation to s19A in Regina v Baker (unreported, NSWCCA 20 September 1995) and was at pains to highlight the profound implications of a sentence under s19A. His Honour considered the well-known statement in Harris (at 432) as to the characterisation of any case as being "in the worst category", and contrasted the facts in Regina v Twala (unreported, NSWCCA 4 November 1994) with the present case as follows: "The facts in Twala were, briefly, that Mr Twala stabbed his estranged wife to death. He inflicted nine serious stab wounds, one of which virtually disembowelled the victim. There were a further seven cuts and slashes, mostly defensive wounds. The Court of Criminal Appeal was of this view, as expressed in the leading judgment: "There is no doubt that this was, as emphasised earlier, a violent and horrible killing, but it was a killing clearly influenced (notwithstanding the jury's rejection of the defence of diminished responsibility) by the mental disturbance of the prisoner resulting from the breakdown of his relationship with his wife upon whom he had become very heavily, even obsessively dependent. The Court found it impossible to characterise this as a case falling within the worst category…" If that reasoning be correct, - and I am not aware that it has ever been held to be incorrect, - then by parity of reasoning, the murder of Miss Campbell, serious crime as it undoubtedly was, could not be characterised save for one qualification, as being in the worst case category. The qualification of which I have spoken is that the murder of Miss Campbell, unlike the murder of Mrs Twala, does not stand alone. It stands, rather, in association with antecedent crimes of violence, one of which was another murder having, as the expert psychiatric evidence attests, some significant factual similarities to the facts of Miss Campbell's murder. The decision in Harris is authority for the proposition that in such a case it is permissible to have regard to the antecedent crimes of violence in the course of assessing the "level of culpability" in the prisoner in the killing of Miss Campbell: (50 NSWLR. 424)". 54 Having done so, his Honour proceeds to consider the "level of culpability" and analyses it as follows (it is desirable that I set out in full the balance of his Honour's remarks on sentence): "(6) The prisoner's "level of culpability" when assessed on that basis analyses as follows: (a) In October 1967 the prisoner so impressed a sentencing judge by his apparently successful rehabilitation from antecedent criminal conduct, that he was sentenced with marked leniency for the malicious wounding, by means of a knife, of his brother. (b) Some 2 years later, the prisoner was dealt with much more severely for an offence of common assault having, as previously herein explained, some ugly aspects. (c) For almost 10 years, the prisoner was free of serious criminal conduct. That break in criminal history came to an appalling end with the murder of his then wife. (d) In 1992, having served some 12-½ years of imprisonment, the prisoner so impressed both a professional psychiatrist, and a senior and experienced Judge of this Court, that his then current life sentence was redetermined in a way which was very favourable to him. That result rested, in large part, upon acceptance of the proposition that the prisoner had rehabilitated himself to the stage where he could properly and safely be released back into the general community. (e) Once again, the prisoner's progress appeared to vindicate that faith in him; but, once again, he re-offended in the form of a significant drug trafficking offence. Yet again, the prisoner so impressed the sentencing Judge that the entirety of his sentence was suspended upon his entering a good behaviour bond. (f) The prisoner had been at liberty on that bond for something like a month when he committed the murder for which he is now to be sentenced. (7) How the prisoner's level of culpability, as so analysed, is to be measured as to its extremity, is a question which has to be answered in the light of the definitive guidance given by the High Court of Australia in Veen v The Queen (No 2) , (1988) 164 CLR 465. The principles thus stated by the High Court are well settled, and well known to sentencing Courts. I shall cite two passages form the joint judgment of Mason CJ, Brennan, Dawson and Toohey JJ: "It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension merely by way of preventive detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible. There are two subsidiary principles which should be mentioned. The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v Ottewell (35). The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. The second subsidiary principle material to this case is that the maximum penalty prescribed for an offence is intended for cases falling within the worst category of cases for which that penalty is prescribed: Ibbs v The Queen (36) . That does not mean that a lesser penalty must be imposed if it be possible to envisage a worse case; ingenuity can always conjure up a case of greater heinousness. A sentence which imposes the maximum penalty offends this principle only if the case is recognizably outside the worst category". (8) I was referred by both counsel to other decisions of other Courts. I have concentrated on the decision of the Court of Criminal Appeal in Miles (2002) NSWCCA 276; and to the decision of Greg James J in Barac (1999) NSWSC 61, both of which I have found of assistance on the question, crucial in the present matter, of future dangerousness. I have come to my ultimate conclusion by the "two-stage process" of which Carruthers AJ speaks in Miles ; see at paragraph 204. (9) The first stage of that process is to determine "whether on the objective facts, the level of culpability is so extreme that it warrants the maximum penalty": (ibid) I have to say that after anxious reflection, I think that it does. (10) The second stage of the process is to determine "whether the subjective factors are capable of displacing the prima facie need for the maximum penalty". (11) I have found this a very difficult question to resolve. The prisoner's age means that, in the nature of things, his imprisonment, whatever its precise duration, will be very harsh. There is so much unhappiness and deprivation in the prisoner's background that one would wish to keep open at least some responsible option for future rehabilitation and release. If ever there was a case in which Wood CJ at CL's suggested reforms would be a responsibly humane sentencing option, this is the case. As matters stand however, that option has not been made available by Parliament. In that case, it seems to me that the proper protection of the public entails that the prisoner's subjective features cannot displace the prima facie need for the imposition of the maximum penalty". 55 For the applicant it is argued that whilst the protection of society was an important component of the sentencing equation in the present case, it has been given such weight that it has led to the imposition of a sentence which is out of proportion with the objective gravity of the offence. When one considers not merely the matters I have just cited from his Honour's remarks, not least his Honour's citation from Veen (No 2), that proposition, with respect, is untenable. 56 His Honour made no error in principle, approach, or otherwise in the exercise of his discretion in what was an extraordinarily difficult sentencing exercise. 57 Accordingly, I propose the following orders: 1. That the appeal against conviction be dismissed. 2. That leave to appeal against sentence be granted. 3. That the sentence appeal be dismissed. 58 SIMPSON J: I have had the advantage of reading in draft the judgments of Levine J and Barr J. I regret to say that I am unable to agree that neither of the grounds of appeal pleaded has been made good. I am of the view that both have substance. 59 It is unnecessary to restate the facts of the Crown case. I rely upon the outline of the facts in the judgment of Levine J. I can move directly into a consideration of each of the grounds of appeal ground 1: directions as to provocation 60 By s23(1) of the Crimes Act 1900 an act causing death in circumstances such that it would otherwise constitute the offence of murder is reduced to the offence of manslaughter where the act causing death was done or omitted under provocation. 61 By subs(2) the test to be applied by a jury in determining whether such an act was done or omitted under provocation is prescribed in the following terms: "(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." (emphasis added) 62 The focus of this ground of appeal is on the words "could have induced" as they appear in subs(2)(b). Three authorities are of relevance. In Heron v The Queen [2003] HCA 17 the High Court dealt with an application for special leave to appeal following a conviction for murder. Special leave was refused. However, four of the five members of the Court accepted that directions given to the jury using the words either "must" or "would" in place of "could" amounted to misdirections. Gleeson CJ said: "[4] ... [the trial judge] mis-stated the objective part of the test for provocation by referring to what an ordinary person 'must' or 'would' have done, rather than what such a person 'could' have done." 63 McHugh J said: "[11] It is true that the trial judge misdirected the jury on the issue of provocation. He did so by directing the jury to consider what an ordinary person 'must' or 'would' have done, instead of directing the jury to consider what an ordinary person 'could' have done..." 64 Kirby J said: "[33] ... By the terms of the statute the test in New South Wales is one of possibility. ..." 65 Kirby J referred to the earlier decision of the High Court in Malcom Thomas Green v The Queen [1997] HCA 50; 191 CLR 334, where Brennan CJ said: "The objective test prescribed by par (b) turns not on what the ordinary person would have done in response to the provocation experienced, but on what the ordinary person could have been induced to intend . Dependent on the circumstances of the trial, the jury may need a direction to draw their attention to the difference between 'would' and 'could' and will ordinarily need a direction to distinguish between what the ordinary person could have been induced to intend and what the ordinary person could have been induced to do." (emphasis in original) His Honour went on to deal with the circumstances of the case then under consideration. 66 Returning to Heron, Callinan J said: "[80] It must be accepted that the use of the word 'would' was a misdirection: whether however it led to any possibility of a miscarriage of justice is another matter." 67 In fact, all members of the Court held that, because provocation had not played any significant part in the issues fought at trial, or in the Court of Criminal Appeal in that case, the incorrect direction did not give rise to a miscarriage of justice. One observation of Kirby J, however, should also be mentioned. His Honour said: "[53] Such errors did not deprive the applicant's trial of its fundamental quality as a trial according to law. They were no more than a misdirection on a particular point of law arising within the trial limited to the use on some (but not all) of the occasions of the incorrect verb of probability rather than possibility." 68 A similar issue was raised in this Court in Regina v Noeline Anderson [2002] NSWCCA 194, unreported, 1 May 2002. There the trial judge had, in response to a jury question seeking clarification of provocation, said to the jury: "... [provocation] may be defined in this way, that provocation is some act or series of acts done by the dead man to the accused which would cause , in any reasonable person, and actually did cause in the accused, a sudden and temporary loss of self control, rendering the accused so subject to passion as to make her, for the moment, not master of her mind." (emphasis added) 69 In answer to a second question concerning the time frame in which provocative acts might be relevant, the trial judge said: "However, the conduct of the deceased must be such as would cause an ordinary person to lose self-control ..." (emphasis added) 70 Of this direction, McClellan J, with whom Meagher JA and Bell J agreed, said: "[33] There are, in my opinion, two significant problems with this direction. Firstly, s23(2)(b) provides that provocation may be present where the conduct was such as could have relevantly induced an ordinary person to act in the relevant manner. His Honour, by introducing the word 'would' has imposed a far more stringent test by which the jury was to assess the conduct of the deceased. [34] ... this would be sufficient to found error... [39] This paragraph [referring to the answer given to the second question] suffers from the same two difficulties as his Honour's original remarks. Firstly, he introduces the word 'would' when the statute provides 'could'. ..." (emphasis in original) 71 These authorities establish beyond question that a direction which suggests to the jury that the test is one of probabilities as distinct from possibilities is erroneous. The first question to arise in the present ground is whether the interpolation of the notion of expectation after the verb "could" has the same or a similar effect as use of the words "must" or "would". I return to what in fact was said by the trial judge in this respect. It was: "Could an ordinary person, - not the accused with his particular characteristics, - could an ordinary person who took that level of offence be expected , in your opinion, to respond to the offence by forming the intention either to kill, or to inflict grievous bodily harm upon the person who had offended him? ... If the Crown persuades you beyond reasonable doubt that an ordinary person, offered the relevant level of offence, could not have been expected to have responded by forming [the relevant intent] ... then the Crown would have excluded provocation ... The converse is equally applicable. If the Crown does not persuade you beyond reasonable doubt that an ordinary reasonable person, offered the relevant level of offence, could not have been expected to have responded by forming [the relevant intent] then the Crown will not have excluded provocation ..." (emphasis added) 72 I am quite unable to accept that the notion so introduced is not parallel with the use of the word "would". In my opinion the introduction of the notion of expectation suggests a probability as distinct from a possibility. I am of the view that the direction, as above extracted, suffers from the same defect as the directions in Heron, and the directions in Anderson. 73 That, however, does not necessarily establish a miscarriage of justice. Here, as Levine J has observed, the written directions given to the jury were unexceptionable, and the correct language was used by the trial judge in oral directions on more than one occasion. Thus, the second question is whether, having regard to the correct statement of the law on those occasions, and particularly in the written directions, departure from the statutory language could have misled the jury. In Anderson a similar situation existed. The trial judge had given written directions which reproduced the statutory language. It was only in response to a jury question that the error crept in. Nevertheless, that was sufficient for the court to hold that the inadequacy went to "one of the fundamental elements of the charge of murder"; and this, even in the circumstances where the trial judge, in the impugned oral directions, expressly referred the jury to the correctly stated written directions. 74 In my opinion authority dictates that the ground now pleaded is made good. No issue as to the direction was taken at the trial and the appellant requires leave, if the ground is to be entertained, pursuant to Rule 4 of the Criminal Appeal Rules. I am of the view that the misdirection was of so fundamental a nature that leave should be given and I so propose. ground 2: directions as to consciousness of guilt 75 At the commencement of the trial, but in the absence of the jury panel, the Crown Prosecutor presented an indictment to which the appellant was invited to plead. Asked by his Honour whether he was guilty or not guilty of the charge of murder, the appellant answered: "Not guilty to murder, but guilty to manslaughter." 76 The following morning, in the presence of the jury, he appellant was again indicted on the charge of murder and entered a plea of not guilty. He did not at that point, in the presence of the jury, acknowledge his guilt of manslaughter. However, even before the Crown Prosecutor commenced his opening, counsel for the appellant offered to hand to his Honour a document containing formal admissions. Although his Honour declined to accept the admissions at that point, preferring that the trial take its course, it can be taken that the appellant's position remained as it had previously been stated and that he acknowledged his responsibility for the death of the victim. At the conclusion of openings both by the Crown Prosecutor and counsel for the appellant, the appellant made formal admissions as follows: (i) that on 4 July 2000 he stabbed the victim; (ii) that the stabbing caused the victim's death; (iii) that thereafter he transported and concealed the body; (iv) that thereafter he withdrew sums of money from the victim's bank account. 77 In his opening defence counsel had already told the jury that the appellant would make admissions to the effect of those above. Thus, it could not have been more clear than that the appellant's guilt of the killing was not in issue. All that was in issue was whether the Crown was able to negative the elements of provocation such as to justify the verdict of murder and not manslaughter. 78 The nature of the evidence adduced by the Crown relevant to a consciousness of guilt is set out in the judgment of Barr J. It included evidence - that the appellant had disposed of the knife which he had used in the killing; - that he had cleaned up the crime scene; - that he had disposed of the body; - that he had made false denials of his involvement when interviewed by police; - that he had moved interstate. 79 The evidence was certainly capable of establishing that the appellant had a consciousness of guilt of having committed a crime; that crime being the killing of the victim. But that much had been admitted from the outset. That therefore was not an issue. 80 The directions given by the trial judge in relation to this issue are comprehensively set out in the judgment of Barr J and I do not propose to repeat them, except to observe that his Honour repeatedly emphasised that consciousness of guilt evidence could only go to a consciousness of guilt of the crime charged, and not of some other crime. This is a conventional point to be made in any case where the Crown relies on evidence said to signify a consciousness of guilt. 81 It is not, however, in my opinion, an appropriate direction to give where the only issue in the trial is whether the accused person is guilty of murder or of manslaughter. The direction implies that the accused person is aware of the sometimes subtle and sophisticated distinction between conduct constituting the crime of murder and conduct constituting the crime of manslaughter. In the present case it assumes an appreciation in the appellant of circumstances that would render this crime manslaughter as distinct from murder. 82 The only issue in the trial was whether the Crown had eliminated provocation. To be relevant, the evidence had to be capable of showing that the appellant knew he was guilty of the crime of murder as distinct from the crime of manslaughter. It could not have been relevant for that purpose unless it went to the appellant's knowledge – and knowledge at the time of the acts said to evidence consciousness of guilt – of circumstances relevant to the Crown's attempted rebuttal of the provocation defence. To show consciousness of guilt of murder as distinct from manslaughter in the circumstances of this case, the evidence had to be capable of showing that, at the time he did the acts, the appellant knew that he did not lose his self-control, or that any loss of self-control was not induced by any conduct of the deceased, or that the conduct of the deceased was not such as could have induced an ordinary person in the position of the appellant to have so far lost his self control as to form an intent to kill or inflict grievous bodily harm on the deceased. That presupposes that, at the time he did the acts, the appellant appreciated the circumstances that make a killing murder as distinct from manslaughter. There is no reason to suppose that the appellant ever had any such appreciation. The evidence was not capable of going to any of the matters to which I have referred – i.e. the s23(2) matters. 83 The complaint that is now made is not about the admission of the evidence but about the directions given as to the use that could be made of that evidence. But the point remains good. The directions must have led the jury to believe that the evidence was relevant to the only issue in the trial. In my opinion it was not, and the directions were therefore misleading. 84 In my opinion, the only guilt of which the appellant could reasonably be said to have been conscious was of guilt of killing – even unlawfully killing – the victim. But that was not in issue. It was abundantly clear that his guilt of unlawful killing was accepted. None of the evidence in question – disposal of the weapon, cleaning up the crime scene, disposing of the body, false denials, or interstate moves – could in any way go to establish that the appellant was conscious that he was guilty, not of manslaughter, but of murder. 85 In my respectful opinion the directions were irrelevant. They also were capable of leading the jury to believe that the evidence in some way could assist them in the only determination they had to make. In this respect it is important to recall that the issue of provocation was effectively the only issue in the trial. It was critical that the directions be correct. In my opinion these directions introduced a false, and very confusing, issue. I do not accept that they can be explained, or justified, as proposed by Barr J. 86 In my opinion this ground has also been made good. 87 I would allow the appeal and order a new trial. 88 BARR J: I agree with the orders proposed by Levine J and gratefully adopt his Honour's summary of the case. The Conviction Appeal Ground One 89 In my opinion the questions - Could an ordinary person respond (to a particular thing in a particular way)? and Could an ordinary person be expected to respond (to a particular thing in a particular way)? are relevantly the same question. The different way in which the second question is framed does no more than emphasise its hypothetical nature. The added words do not in my opinion affect the meaning of the word "could" which precedes them. To convert the sense of the words from one of possibility to one of probability or likelihood by the addition of words such as those now criticised, one would have to say "would be expected to" or some such thing. 90 In my opinion the words chosen by his Honour correctly stated the test required by s23(2)(b) Crimes Act. I would refuse leave to appeal on this ground. Ground Two 91 When he was arraigned in the presence of the jury panel, the appellant pleaded not guilty of murder but guilty of manslaughter. The Crown refused to accept his plea in discharge of the indictment and the trial proceeded. During his opening address, the Crown prosecutor said this - Ladies and gentleman of the jury, what the Crown anticipates, because my learned friend has so informed me, what the Crown anticipates will be the main issue raised by the defence in this trial is the issue of provocation. I just want to tell you a little bit about the law on that and the law of murder as well. Let me start by telling you a little bit about the law of murder. Prosecutors, often to assist juries, speak of charges or crimes as having elements, a bit like the ingredients of a recipe. In order to be satisfied of a crime having been committed, a jury needs to be satisfied to their satisfaction beyond reasonable doubt that the elements of the charge have been made out. What are the elements of murder. They are fairly straightforward. Murder is committed when a person does an act, does something, in this Crown case wielding a knife, stabbing someone, does an act which causes death and I don't anticipate there is any issue in this trial that Michelle Campbell was stabbed by the accused and that that caused the death. The act must be done with the intention to kill or to cause grievous bodily harm which is really any really serious harm to the body. I don't think there is any issue that stabbing someone four times would at the very least amount to grievous bodily harm and indeed the Crown asserts that the intention here was the intention to kill but the Crown can rely on either of those intentions and if you are satisfied that at the time of the act which caused her death, the person who does that act had the intent to kill or inflict grievous bodily harm then that would be sufficient to comprise the offence of murder. 92 During his opening to the jury defence counsel said these things - The accused will make admissions to the effect that on 4 July 2000 at an address in Lakemba he stabbed the deceased, Michelle Campbell. He will admit his actions in stabbing her, caused her death. He will admit that he subsequently transported her body to the north coast, the northern area of New South Wales near Bellbrook that the Crown alerted you to, and he left her body in bush land, in beside a dirt road in a secluded place there. He will admit before you and put it to you that on five occasions between 6 July and 7 August he accessed Michelle Campbell's bank account and took money from it. So what does that mean? He admits he killed her. He admits that he killed her by stabbing her; he admits he was the person that took the body to northern New South Wales and left it, and that after that he used her bank account. What, then, you might think to yourselves are the issues that remain for you to decide? He has admitted killing Michelle Campbell that the charge recites. The issue I suggest to you will be whether he is guilty of the charge of murder which is the one that has been brought against him by the Crown; or whether he is guilty of the charge of manslaughter. … When she came back this time though she had a knife and came at him and there was more arguing between them and eventually he took her in his arms and he stabbed her. Then he said something like, "you're not going to stab me" and he says he will tell you that he lost control, didn't know what he did after that. And eventually she was on the ground. He had taken the knife from her, he took the knife from her before he stabbed her, took it out of her hand and after he had taken it out of her hand, it was then he put his arms around her. You will be told she received stab wounds to the back and the front. He will say that he lost control. He will say that he went berserk and that he was angry and that's why he stabbed her. 93 Before the first witness was called defence counsel produced a document containing formal admissions. The document was marked for identification and his Honour asked the appellant in the presence of the jury whether on the advice of his counsel he made the admissions. The document included these admissions - 1. That on 4 July 2000 at 74 McDonald Street Lakemba he stabbed Michelle Campbell, and 2. That his action of stabbing Michelle Campbell brought about her death. 94 The appellant formally made those admissions. 95 There was no formal admission that when he stabbed the deceased the appellant had the state of mind necessary for murder, but as the trial proceeded there was never any suggestion that that would be an issue. 96 The accused gave evidence. During his evidence in chief there were these questions and answers - Q You and Michelle Campbell were together and you stabbed and killed her, correct? A Yes . Q Just tell the jury slowly how it was you did that? A Well, over a period of about four days I was just verbally abused, physically abused and I got hit on the side of the head with a hammer and was hit with the shoes, stabbed with syringes, me eyes was gouged, nose was bitten, scratches and during all this time over this period of three or four days I never showed her any violence, I wasn't violent towards her. On Tuesday, when she came back to the house, I don't know, I think I was cleaning up or something and she came back. Anyway, she partly got undressed and she went into the kitchen and took the knife and came to stab me. I cut my right thumb and I put me arms round her to try to settle her down and she started scratching me face and biting me again and, I don't know, I don't really recall what happened after that because I just sort of totally lost it. I think I just, all me self-control, just absolutely gone. I just went bananas, berserk and in the next, those few moments, you know, I just don't really recall a lot of what happened in that period of time after that and that is probably about it. … Q At the time that you stabbed Michelle, can you show us how you did that? A Well we, I had taken the knife off her. Q What sort of knife was it? A Sort of like a little vegie knife. Q How long? A About as long as a biro pen . Q What did you do? A I took it off her and she started to claw at me face and I put me arms around her just to sort of pull her in, settle her down, stop her from – and that is just when I must have stabbed her. Q Can you actually tell us how? A When I put my arm around her, I just, you know, the way the knife was positioned, you know, it just wasn't intentional, I ever intended -- Q Just tell us what you did? A That is just sort of when I really, really lost it. Q When you say you "really lost it", what do you mean? A I just, I lost all logic and all me sense of reason, me self-control, I just lost the whole lot of it and. Q Having lost it, what did you do? A I must have just stabbed her. Q Stabbed her? A Yes. Q Do you know how many times you stabbed her? A I couldn't recall how many times I stabbed her. I know now how many times I stabbed her. Q But at the time do you remember? A No, I don't. 97 During cross-examination there were these questions and answers - Q Where was the knife? A The knife was still in my right hand. Q What? When you stabbed her? A It may have been when I stabbed her. I'm not sure exactly when I did, I got no recollection of stabbing her. I know it was because I had my arms around her, I must have stabbed her at one stage . … Q Do you realise that she was stabbed in the neck? A I have been told that, yeah. Q Do you remember doing that? A No, I don't. Q Do you remember any of the blows that you struck her? A No, I don't. Q You don't remember any of them? A No. … Q How was it that you realised that she was dead? What happened to make you realise that she was dead? A I don't really know. Q Did you go and take her pulse or do anything like that, to see if she was breathing? A No. Q Didn't bother to do that? A I don't know why I didn't, I haven't got a clue . Q Can I suggest you didn't do that because you wanted her dead? A No, I didn't want her dead. I had no intentions of killing her. I had no intention of stabbing her. 98 The last answer extracted was not taken as raising any issue whether the appellant intended to stab the deceased or that he had the specific intent necessary for murder. To raise any question about his intent to stab, of course, would have called into question the first of the formal admissions he had made. His answer that he had no intentions of killing the deceased seems to have been taken by counsel as referring to his state of mind before the commencement of the deceased's conduct which he asserted caused him to lose self-control. 99 In the circumstances the principal issues for the jury were those provided by s23(2)(a) and (b)Crimes Act. They were - (a) whether the appellant's act which caused the death of the deceased was the result of loss of self-control on his part that was induced by the conduct of the deceased towards or affecting him, and (b) if so, whether that conduct could have induced an ordinary person in his position to lose self-control so far as to form the intent to kill or do grievous bodily harm. 100 There was evidence about what the accused had done after he killed the deceased. He had disposed of the knife, cleaned up the scene and covered his tracks. He had told the deceased's son that she had gone away, naming a couple of possible destinations. He had disposed of the body. He had run away. 101 It was the Crown's case that evidence of that kind bore on the question of provocation. It was put by the Crown in his closing address that a person who had lost control and killed would have cooled down again and would not have done such things. On the contrary, it was submitted, his acts showed his contempt for and hatred of the deceased. 102 The evidence was capable of bearing only on the first of the two principal questions the jury had to consider, namely whether the appellant acted out of loss of self-control. It could not touch the question whether, if the appellant had lost self-control, whatever the deceased had done could have caused an ordinary person to lose self-control. 103 During his closing address the Crown Prosecutor dealt in detail with the things the appellant was said to have done after the death of the deceased. The submissions included these - Now it is not an irrelevant consideration, as best you can to try and assess what sort of a person is this accused that we have seen in this witness box. In my submission to you is that he is not an ordinary person. Of course the test is not whether the accused was an ordinary person, the accused is whether an ordinary person, theoretical ordinary person in his position could lose their self-control in that way. But it is not irrelevant in considering why this accused did what he did. Consider whether he is an ordinary person or not. My submission to you is, he is not. There is something different about him that emerges from his evidence. And in particular his particular lifestyle that he was living with the deceased and also his behaviour, particularly in the aftermath of this stabbing. The aftermath of that stabbing is very important in the Crown case for a number of reasons. Because the Crown says to you that it shows what the true reason behind this killing was. The aftermath shows, not just in the Crown's submission, consciousnesses of guilt and consciousness of guilt on murder, not just consciousness of guilt of killing, but consciousness of guilt of murder. It also shows hatred. The Crown submits to you strongly ladies and gentlemen that this accused had come to hate Michelle Campbell and that hatred resonates throughout his behaviour after the killing. You might think that somebody who simply loses their self-control would regain it reasonably soon afterwards… … Now, is this the behaviour of somebody who has temporarily lost their self-control, snapped back to a normal state of self-control and realised with sadness and shame what they had done? It's not. It is the behaviour of somebody who has known that what they have done is murder. The way that Michelle Campbell is then treated is powerful evidence of the contempt and hate that the accused had for her. It may well be that that contempt and hate grew out of a mixture of things, one of which may have been a contributing factor, may have been her general behaviour towards him. But my submission to you ladies and gentlemen is that this conduct by the accused establishes you might think the extent of his hatred and that it's entirely inconsistent with a loss of self-control. It may be suggested to you by my friend that the disposal of the body and the way it was treated and all of that shows is a consciousness of guilt of having killed her. Well, the Crown says to you it is something more. It is more than a consciousness of guilt of manslaughter, it is a consciousness of guilt of murder 104 Defence counsel began his closing address thus - Ladies and gentlemen, you will remember that Mr Sievers, last Tuesday, stood before you and he pleaded not guilty to murder when he was asked how he pleaded. Then you will remember that he made a series of admissions to you and they will be well in your mind I am sure. The admissions, to the effect that he stabbed Miss Campbell on 4 July, that his stabbing killed her, he took her body to a place near Bellbrook and left it and he took money from her account using her keycard. Those are things that he admitted to you. Those are things that, of course, are not in dispute before you. You might think, ladies and gentlemen, that they encompass some of the very big issues that might otherwise have been in this trial. As I stated when I opened the case to you for the defence, Mr Sievers and the defence on his behalf do not take issue with much of what the Crown case is. You might think that remains the position. I was talking about admissions, and the admissions he made. I was talking about how much of the Crown case is not in dispute and how it was suggested to you last week that it wouldn't be and it hasn't been. You might think ladies and gentlemen that the issue and it is the issue that remains for you to decide is whether the Crown has proved beyond reasonable doubt for it is the Crown to prove the case beyond reasonable doubt whether the Crown has proved beyond reasonable doubt that Mr Sievers is guilty of murder or whether he is guilty of manslaughter. It is put to you by me on his behalf that you will find him guilty of manslaughter. You will remember when the case began that I suggested to you and I said to you that the issue in this case, the predominant issue in this case and this trial will be whether the Crown has disproved or negatived that, the proposition based on the evidence of Mr Sievers that he killed Michelle Campbell acting under provocation and you will remember that provocation, and his Honour will give you details and written directions about that which will guide you through the law, provocation is a legal doctrine which recognises that ordinary people, an ordinary person could be so provoked as to loose self-control, to form an intent to either kill or to do really serious harm to someone and that within that state of provocation do just that, kill the person who provoked them. That is the rationale, if you like, that is the basis in essence what the law, the law of provocation, allows. Of course, it is important to tell you this, that if you find in accordance with the evidence that you will be told about in some detail, that the Crown hasn't disproved provocation, provocation remains, then the verdict you will bring in is one of not guilty of murder but guilty of manslaughter. So it is a partial defence. It reduces his culpability, if you find it, from one legal charge to another. 105 Speaking of provocation, defence counsel said this - Now, you might think that contrary to what the Crown has suggested to you that that behaviour is consistent with someone losing control and killing someone. It is entirely consistent with someone losing control and killing someone and not wanting to face up to it. While you might think that is reprehensible, I would suggest to you that the issue that you are faced with in this trial, which is whether he is guilty of manslaughter, my submission to you is this, that you are not much assisted by the fact that he ran away. You are not much assisted by the fact that he told lies. You are not much assisted by the fact that he shaved his head for whatever purpose and in light of the New South Wales Cabinet and Parliament stuff and fashions of shaved heads, I don't think you can make much of that but he did that and using a false name, Jones because you are not much assisted by that. The reason is this, that the Crown, the issue in this trial is whether the Crown has proved that is guilty of murder, that is he intentionally killed or killed with the intention to cause grievous bodily harm and whether the Crown has proved that he didn't do that under provocation. You might think about feeling guilty about killing someone and taking the option of trying to get away with it doesn't help you at all on the issue of whether he was provoked because you know that if he was provoked then the verdict is manslaughter. Secondly, you might think that in running away and fleeing, telling lies and all those things is attributable to his understanding that he had done something wrong rather than the understanding of the legal characterisations of that wrong. My suggestion to you is that you might run away and you might tell lies and you might move to Western Australia if you knew you were guilty of manslaughter. It is not as if anyone is going to give you a medal for being guilty of manslaughter, is it. Equally as if you were guilty of murder. That is what I suggest to you that you will not be able to use. What he did afterwards and focusing on the important issue is, the really verified issue in this trial. It is callous, sure it is. It is selfish, sure it is. It is unfeeling and so on. But he did know, didn't he, that he had just killed someone and he had killed someone with a knife and that was serious you might think. 106 His Honour gave the jury written directions which included a statement that there were three possible verdicts, namely guilty of murder, not guilty of murder but guilty of manslaughter and not guilty. The directions reminded the jury that neither the Crown nor the appellant had submitted that they should return a verdict of not guilty, but that such a verdict was open in principle upon one particular view of the case, so that his Honour was bound to leave the question to them. 107 Dealing with intent, the directions observed that the appellant had denied in sworn evidence that he ever had an intent to kill and that although he had not sworn in so many words that he had never intended to inflict grievous bodily harm on the deceased they should treat his plea of not guilty as having made that particular issue of intent a live issue. 108 The directions complained of in this ground were given in writing and orally. The written direction was as follows - Keep carefully in mind that the Crown argument about consciousness of guilt cannot succeed unless the Crown persuades you that the only rational inference to be drawn from what the accused said and did is that the accused, when so speaking and acting, was in fact acknowledging, not that he was guilty of some crime or other, but that he was guilty of murder as now charged against him: that is to say, the intentional stabbing to death of the victim. 109 During the summing-up his Honour said this - What is being said is: you take, on the one hand, those matters that are noted there, the disposal of the body, the relocation, and so forth; and you reason from those to the conclusion, - or, if you like, draw rationally the inference, - that all those acts and things said and done by the accused do not have any rational explanation except the explanation that he was, in effect, signalling a consciousness of guilt; consciousness that he was guilty, not of something, but guilty of the crime charged against him, which in this case is the crime of murder. … Remember, there must be no other rational inference available from the whole of the material put forward except that what was done evidences consciousness of guilt, not of something, but of guilt of the crime actually charged . 110 Dealing with the Crown case on the acts and words of the appellant after death his Honour said this - To that the Crown would add, as I understand the Crown's case, the matters that we considered a little while ago, in particular that difficult concept of consciousness of guilt. For the crown is saying, amongst other things, that when you look at what happened in the aftermath of the stabbing, there is no other rational inference that that what the accused did was actuated by an understanding on his part that he had indeed stabbed her, and stabbed her intending, if not to kill her, as he says, at least to harm her in some really serious bodily way. That is the way the Crown case is put. 111 The solicitor for the appellant handed up a draft direction and invited his Honour to substitute it for the portion of the written submissions I have extracted above. The text was as follows - Keep carefully in mind the Crown argument about consciousness of guilt cannot succeed unless the Crown persuades you that the only rational inference to be drawn from what the accused said and did is that the accused, when so speaking and acting, was in fact acknowledging, not that he was guilty of some crime or other, (for example manslaughter) but that he was guilty specifically of murder as now charged against him: that is to say, the intentional stabbing to death of the victim. 112 His Honour declined to do so. 113 Although his Honour left to the jury the question of the state of mind necessary for murder and thereby left open the legal possibility that there might be a verdict of not guilty, there was in my view no practical possibility of such a result. Evidence about what the appellant did after he had killed the deceased was in a real and practical sense relevant to only one issue that the jury had to decide, namely the first of the two questions raised by s23(2) Crimes Act. 114 The directions his Honour gave were in accordance with the law: Edwards v The Queen (1993) 178 CLR 193. They conveyed to the jury that they could use the evidence of events after the death of the deceased only if the only rational inference to be drawn from it was the appellant's acknowledgement that he had committed murder. That would subsume an acknowledgment that he was not guilty of manslaughter on the ground that he was provoked. 115 I would dismiss this ground of appeal. The Sentence Appeal 116 I agree, for the reasons explained by Levine J, that leave to appeal against sentence should be granted but that the appeal should be dismissed. ********** Last Modified: 12/17/2004 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.