New South Wales Court of Criminal Appeal CITATION: Regina v Khalouf [2005] NSWCCA 395 HEARING DATE(S): 28 September 2005 JUDGMENT DATE: 18 November 2005 JUDGMENT OF: McClellan CJ at CL at 1; Hislop J at 110; Rothman J at 111 DECISION: Appeal dismissed CATCHWORDS: CRIMINAL LAW - appeal against conviction - murder - whether the jury were misdirected as to provocation under s 23(2)(b) and s 23(3)(a) of the Crimes Act - whether there was a failure to direct the jury as to consciousness of guilt - the proper use of the evidence of the appellant's accounts and any inconsistency therein. Crimes Act 1900 LEGISLATION CITED: Evidence Act 1995 Broadhurst v the Queen [1964] AC 441 Edwards v The Queen (1993) 178 CLR 193 Green v The Queen (1996-1997) 191 CLR 334 Papakosmas v The Queen (1999) 196 CLR 297 Patterson v Regina (Cth) [2001] NSWCCA 316 CASES CITED: R v Hodge [2002] NSWCCA 10 R v Kalouf [2003] NSWCCA 179 R v Sievers [2004] NSWCCA 463 R v Villa [2005] NSWCCA 4 R v Wilson [2005] NSWCCA 20 The Crown PARTIES: Ali Khalouf (Resp) FILE NUMBER(S): CCA 1004/05 P G Ingram (Crown) COUNSEL: P Byrne SC/I McLachlan (Appl) Solicitor for Public Prosecutions (Crown) SOLICITORS: Ross Hill & Associates (Appl) LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): 70061/00 LOWER COURT JUDICIAL OFFICER: Newman AJ IN THE COURT OF CRIMINAL APPEAL 2005/1004 McCLELLAN CJ at CL HISLOP J ROTHMAN J FRIDAY 18 NOVEMBER 2005 R v Ali KHALOUF Judgment 1 McCLELLAN CJ at CL: The appellant was tried and convicted of the murder of Rebecca Diab at Bass Hill on or about 18 February 2000. Although he pleaded not guilty to murder, the only issue at the trial was whether the appellant acted under provocation. 2 The appellant had previously been tried for the same offence in this Court before O'Keefe J and a jury. That trial commenced on 23 July 2001 and concluded on 10 August 2001 when the jury returned a verdict of guilty of murder. 3 An appeal was lodged against that conviction which was upheld and a new trial ordered (R v Kalouf [2003] NSWCCA 179). 4 Following the appellant's conviction upon the retrial he was sentenced to imprisonment for 20 years commencing on 18 February 2000 and expiring on 17 February 2020 with a non-parole period of 13 ½ years expiring on 17 August 2013. 5 The grounds of appeal are: 1. His Honour the learned trial judge erred in law in his directions to the jury on the availability of the partial defence of provocation pursuant to s 23 of the Crimes Act 1900 in that: (a) The jury were misdirected as to the matters they were entitled to consider under subs 2(b); (b) The jury were directed in a manner contrary to the terms of subs 3(a); and (c) Following (a) and (b) above, the jury should have been directed in the terms of subs 3(a) that the absence of reasonable proportionality between the provocative act of the deceased and the response of the accused person does not negative the availability of the partial defence of provocation. 2. His honour the learned trial judge erred in law in failing to direct the jury as to consciousness of guilt of the appellant in that the jury was not directed as to the proper use they might make of the evidence of the appellant's accounts, and any inconsistency therein. The relevant facts 6 The deceased married Elie Diab in 1975 and they immigrated to Australia in 1983. For the 12 months prior to her death the deceased worked as a house carer about twice a week. Her employer was a Mrs Dalsanto and she also gave care to Mrs Dalsanto's two children. About 6 or 7 months before her death the deceased had told her husband that she was now working for an elderly man by the name of Rupert who lived in the Chatswood area. 7 Evidence was given at the trial that from some months before her death the deceased had taken to ringing members of her family if she was not coming home that evening. On those occasions she would say that she would be minding children overnight because the family for which she was babysitting would be going out until quite late. 8 Lisa Dalsanto gave evidence that she initially employed the deceased in 1997 to clean her home and later as a babysitter for her daughter. She indicated that the deceased initially attended her home twice a week but this increased from 1999 when her second child was born. Mrs Dalsanto had become close to the deceased who had confided in her that her marriage was unhappy. 9 About 8 months before her death the deceased told Mrs Dalsanto that she was dating a Slavic bus driver called Franc. They would go to the Travelodge Motel at North Sydney together. The deceased also told Mrs Dalsanto that after Franc she started dating an Australian man and they used to stay at the Rydges Hotel at Cronulla. Some weeks before her death the deceased told Mrs Dalsanto that she was again dating Franc. 10 Mrs Dalsanto had spoken to the deceased about her unhappy marriage and suggested that she should get a divorce. However, the deceased said she would not do this because her husband would be very upset. 11 The appellant conducted a business as a tailor in a shop at Greenacre. He met the deceased when she was introduced to him as a prospective employee in his business. After a time the deceased and the appellant commenced an affair. 12 Apparently about 4 months before Rebecca Diab died the appellant moved to Melbourne and had requested that the deceased and her children come to live with him in that city. The deceased did not want to do this and she tried to withdraw from the relationship. Evidence was given at the trial by Mr John Stait who had given assistance to the deceased's family that the deceased had come to him at his home before Christmas 1999 appearing to be agitated. She said she was frightened of a man who was making advances to her all the time and was pestering her with phone calls. She apparently indicated that she was scared for her life because she would not go with him. Mr Stait suggested to the deceased that she should obtain a restraining order but the deceased's reply was along the lines of "what is the use, they always seem to get around it". The deceased also allegedly said to Mr Stait that her boss said that he was going to kill her if he did not have his own way with her. 13 Mr Stait gave evidence that he went to the deceased's home for dinner on 16 February 2000. After dinner, when her husband was out of the room, the deceased said to Mr Stait that she was really scared and that she did not know what was going to happen. 14 Evidence was also given of the relationship between the appellant and the deceased which included admissions made by the appellant under s 184(a) of the Evidence Act 1995 in the following terms: · that the appellant and the deceased met at motels two or three times per month over a year before her death and gave the appearance of being a happy couple. · that the appellant travelled by "Firefly Express" coach from Sydney to Melbourne and vice versa on numerous specified dates. · that the appellant and deceased attended the Padstow RSL Club on specified dates. · that shortly after 3 pm on Thursday 17 February 2000 the appellant purchased a knife from David Jones, which was used to fatally stab Rebecca Diab. 15 The deceased left her home on 17 February 2000 at about 8 am. She told her husband that was going to Rupert's home. She rang her husband at about 2 pm and told him that she did not know what time she was coming home but that if she stayed at Rupert's house she would ring him. 16 Evidence was given at the trial by Miss Clarke that on the night of 17 February 2000 she was working as a supervisor at the Padstow RSL. She stated that between the hours of 5 pm and 6.45 pm she was working in the poker machine area and saw a middle aged couple, (obviously the appellant and the deceased), sitting side-by-side playing the poker machines. 17 Natalie Malatta gave evidence that she checked the appellant and deceased into a room at the Rydge's Hotel at Bass Hill around 7.20 pm. 18 Anita Mughelli gave evidence that she occupied Room 504 at the Rydges Hotel on the evening of 17 February 2000. At about 10.30 pm she was in bed watching television when she heard a raised woman's voice coming from Room 506. She could not understand what was said. She also heard a few doors bang and a man's voice. Both of these sounds appeared to come from Room 506. Miss Mughelli said the man and the woman were not screaming at each other but had raised voices. This went on for about 30 minutes and sounded like a domestic dispute. 19 At about 11 pm Miss Mughelli heard the sound of a shower from Room 506. The man and the woman were still yelling at each other and this continued until 11.30 pm. At about that time Miss Mughelli was planning to go and knock on their door if they did not stop yelling. At about 11.45 pm the voices stopped. Miss Mughelli fell asleep and was awoken at about 2.30 am on the following morning by a man's voice from inside Room 506. The man was yelling but she could not hear what he was saying. Miss Mughelli heard the shower running in Room 506 again before she fell asleep and was later wakened by police knocking on the door of Room 506. 20 Mr Ahmed Khalouf, the son of the appellant, spoke with his father by mobile telephone at about 11 pm. At that stage his father indicated that he had no problems. However, the appellant called him at 2.35 am in the morning and had a conversation in Arabic which when translated was as follows: "Mr Khalouf: What was the matter? Appellant: I have committed a crime. Mr Khalouf: What do you mean? Appellant: I think I have killed her. I am trying to kill myself but I can't. What am I going to do? Mr Khalouf: You have to turn yourself in and I will speak to Hassan. Appellant: Ok, call me back." 21 In later conversation Mr Khalouf urged his father to let the police know and turn himself in. Mr Khalouf asked the appellant how he did it and the appellant told him that he had grabbed the knife off her, it hurt him and that she had fallen on it, but went on to say that there was no time to talk about it now. Mr Khalouf gave evidence of the following conversation: "Mr Khalouf: Are you sure she is dead? Appellant: She's been lying there for two hours. Can you give me to the morning, I just want to get some sleep before I hand myself in. Mr Khalouf: Yeah, okay." 22 After hanging up Mr Khalouf spoke with a relative and then called the police. He told the police that his father was at the Rydges Hotel at Bass Hill and that the police should check it as he did not believe his father. At about 3.25 am the appellant called back and according to Mr Khalouf the following conversation ensued: "Appellant: Don't wait until the morning, I think she may not be dead yet, call the police now. Mr Khalouf: How do you know? Appellant: I think her heart is still beating. Mr Khalouf: I will call them now. Appellant: Will you come with them. Mr Khalouf: They will give you a call. Appellant: OK, I am going to put some clothes on and I will wait for them. Mr Khalouf: [What room are you in?} Appellant: Room 506 on the fifth level. Mr Khalouf: Yes, I will call them." 23 Mrs Assad, the appellant's sister, at whose residence the appellant had been living in Melbourne gave evidence that the appellant left Melbourne in January 2000 to travel to Sydney by bus. Mrs Assad received a phone call from him on a day in February 2000 between 2.30 am and 3.30 am. The appellant said to her "I killed a woman." She said to him "Which woman?" and he said "My wife." She asked him "Why?" and he said, "They want me to". He also said, "Ring your brother because he never answers me." He said "They want me to do this, ring your brother and ask him what I shall do?" and she replied, "Do the best. You say that you did it. Call the police …" The appellant replied, "Ring your brother and tell him". Mrs Assad said that when she spoke to her brother Hassan, she then became aware that the woman that had been killed was not the appellant's wife, but Rebecca. The appellant's voice sounded calm and normal when she spoke to him. 24 Mrs Assad stated that the appellant used to tell her that the deceased was very nice and that towards the end he would say that he wanted to marry her and bring her to Melbourne. She was not aware of any problems between them and he appeared to be always happy and laughing when he spoke to Rebecca on the telephone. 25 The police arrived at the motel at about 3.35 am. Evidence was given by Snr Const Miller that upon entering the motel room he observed the deceased covered by a doona. He asked the appellant "Who was she?" and the appellant replied "My girlfriend." The appellant had a deep laceration on his left index finger. Snr Const Miller saw blood on the double bed, within the room and in the bathroom. 26 When questioned the appellant indicated that he had some difficulty in understanding English and that he spoke Arabic. 27 When the appellant was closely examined he was found to have a 1cm cut on the inside tip of his right index finger and a cut on his left index finger. He also had a small irregular blood stain on the inside of his right ear and a number of diluted blood stains on the outside of his right ear. There was a reddening on the upper and middle of his chest and blood spots and stains on various parts of his body. 28 When the deceased's body was examined she was found to have a large amount of dried blood covering various parts of her body. There was a large open wound to the right side of her abdomen and the top of her right shoulder and two puncture marks on her upper chest. A plastic handled knife with the sheath removed with a bent tip and dried blood on both sides was also located. Blood was found on various parts of the floor and furniture within the room. 29 The police also located other items in the room including three Lebanese cucumbers and an unpeeled mango. A Lebanese cucumber and a seed of a mango were also found in the wastebin in the bathroom. The cucumber had matter resembling faeces on one end of it. 30 The appellant was interviewed at the scene by Det Sgt Anthony Karras. Det Karras said that the appellant appeared to understand what he was saying and replied in English. The appellant admitted stabbing the deceased but said this occurred after she had stabbed him. 31 During this interview the appellant told the police that when he tried to get the knife off the deceased she hit him on his left finger and that he did know what had happened. He then took the knife and found her on the floor. The appellant answered further questions about the deceased approaching him with the knife and admitting stabbing her after she hit him. The appellant said that he took the knife off her when she injured him, she fell onto him and he did not know what happened but he told himself that he killed her. 32 Dr Kevin Lee a forensic pathologist examined the body of the deceased in a post mortem examination. He found that the vast majority of the injuries on the body were sharp force types of injuries. There was a stab wound that passed through the right ear area measuring 3.8cm in length. There was an abrasion associated with this injury and a short skin flap. This meant that the injury had been produced by a sharp pointed and sharp edged instrument. Dr Lee followed the track of that wound and found that it had passed downwards and forwards at approximately 40 degrees and was approximately 8.1 cm in length. Dr Lee found a superficial abrasion on the right cheek of the deceased and another superficial abrasion to the right side of her neck. Dr Lee noted a 3 cm long, slightly irregular stab wound situated on the right side of the throat. Its track passed downwards medially and to the left. The doctor also found a V-shaped incised injury on the underside of the chin. Associated with that injury were a series of linear superficial cuts. The doctor also located two pinpointed abrasions underneath that injury. 33 Dr Lee noted a pair of stab wounds situated over the upper sternum of the deceased. One measured 1.9cm and was just to the right of the midline of the chest. Its track passed to the left side of the body at approximately 30 degrees. The second injury measured 1.2 cm by 0.5 cm wide, was 2.6 cm deep and was situated 2.1 cm to the right of the midline. Its track passed downwards and backwards at 10 degrees. 34 There was a further stab injury situated between the breasts just to the left midline of the chest. The entrance of the wound measured 1.2 cm with a 1.2 cm straight tail running to the left and it was 4.6 cm deep. There was a minor area of abrasion associated with it. The next injury the doctor examined was a stab wound to the right upper abdomen that was 5.5 cm long with a 2 cm vertical upward tail and 4 cm deep. It tracked through the skin, the abdominal cavity and the liver. 35 The doctor also found a wound to the side of the left of the neck which measured 3.5 cm long. The track passed directly transversely through the neck for a distance of 7.9 cm. There was another wound to that area which measured 4.5 cm and was behind and below the lower fixed point of the ear. The track of this injury passed downwards to the right and forwards at approximately 20 degrees. It was about 7 cm in length. This injury passed into the fourth cervical vertebra in the left side of the neck. 36 Dr Lee also noted damage to the deceased's third, fourth and fifth cervical vertebrae in the centre of the neck. The third vertebra showed an irregular stab wound with a small loose wedge of bone, which was consistent with being caused by a sharp pointed knife. Dr Lee's opinion was that it would require a significant amount of force to cut a piece of bone in the vertebra. He also described it as a heavy degree of force. 37 Dr Lee also noted a 4.7 cm wound to the right shoulder of the deceased and some other injuries. 38 During his examination Dr Lee observed seven injuries to the right hand. They were all cut injuries and ran crossways. Dr Lee also saw a series of ten incised wounds to the left hand. The doctor was of the opinion that these injuries were defence type injuries. The doctor also noted two curved bruises on the left upper arm that resembled injuries from light bite marks. 39 Dr Lee found a superficial V-shaped laceration just within the interior of the anus of the deceased. It would have been caused by a light or moderate degree of force and would be felt as at least uncomfortable and that some degree of pain would be quite reasonable. In Dr Lee's opinion, a cucumber, like the one found in the bathroom of the hotel, would be quite capable of causing that type of injury. 40 Dr Lee was of the opinion that the deceased had died quickly and at most within 30 seconds and that the cause of death was multiple stab wounds that resulted in torrential external bleeding from the throat and neck area and non-supply of blood to the brain. Dr Lee's opinion was that the deceased had initially been injured near the bed and when she became less mobile with the large volume of blood loss she bled onto the bed causing the heavy blood stains on the bed and then collapsed onto the floor. The appellant's evidence 41 The appellant gave evidence that he had an intimate relationship with the deceased that commenced in 1998. He said that there were no problems in the relationship until 8 months prior to February 2000 when he decided that he wanted to stop it and return home. He said that he left Sydney and went to live in Melbourne so they could be apart. However, he travelled back to Sydney frequently to see his children and the deceased. He kept in constant communication with the deceased returning her daily calls. On the day before the incident, the deceased called him and said that she wanted to see the appellant on the Thursday for the last time before they each went back to their own homes. 42 They arranged to meet at the Padstow RSL at 5 pm and after drinking a few beers and playing on some poker machines they left the club at approximately 7 pm. The deceased was wearing a dress that the appellant had given to her some weeks previously. He had made the dress for her. They bought some fruit and vegetables and went back to the hotel. They went to the room, ate some fruit and then made love. They chatted together for a short while and again made love after which the appellant's son rang him on his mobile phone. His son, Ahmed said, "I have been waiting for you, why haven't you come, return home" to which the appellant responded "Tomorrow definitely I will be coming back." The deceased had gone to the bathroom at that time. 43 When he had hung up the telephone the deceased said, "Every time I spend some … time with you together one of your children call us and disturb us." She became edgy. He tried to talk to her gently and calmly. She wanted to make love again but he said that he was too tired. She started swearing at him telling him that his "mother is a slut. I am going to fuck your mother. All your children are sluts and hopeless." 44 She left the bed, went to a table and picked up a cucumber which she inserted into her vagina and rectum. He asked her to remove the cucumber and when he pushed her the cucumber fell to the floor. She told him that she intended to use the cucumber on his daughter "because she has her birthday the following day. Because her husband cannot sleep with her and I want to use it on her. I want to use that cucumber on her because she is a slut." 45 Mr Michael Moses who is an interpreter of the Arabic language was asked by counsel for the appellant about these words and the effect they would generally have on a Lebanese man. He said that the references to the mother would be the most humiliating of injuries. 46 The appellant gave evidence that when the cucumber fell to the floor and the appellant knelt down to pick it up the deceased hit him with her foot on his shoulder. He got up and asked her why she was hitting him to which she answered, "I want to kill you, you son of a bitch." She grabbed the knife and attacked him and as he retreated he fell onto the bed she jumped on top of him saying that she wanted to kill him. He said that was the last thing he knew. 47 When the deceased had sworn at him and his family the appellant said that he felt very distressed, his "whole body was burning I couldn't even take a breath, because I was so upset and insulted." 48 When he came to the appellant said that he saw the deceased on the floor and tried to talk to her but she did not respond. He saw the knife stuck in her neck and pulled it out and covered the deceased with the sheet. He then called his son, explained what had happened and told him to call the police. He tried to speak to his brother but after failing to get a reply spoke to his sister about what had happened. He went back to the body, placed his hand on her heart and suspected that she may still be alive. He called his son again and told him to call the ambulance and police. 49 The appellant accepted that he participated in a record of interview with the police but said that he did not tell them about the cucumber as he did not want to say anything negative about the deceased and nor could he bring himself to tell the police about how she had sworn about him and members of his family. 50 In cross examination the appellant denied that the deceased worked for him but agreed that Mrs Assad had introduced them. The appellant repeatedly denied that he had wanted the relationship to continue and also denied that he had told his sister that he wanted the deceased to come and live in Melbourne with him. 51 The appellant also denied that he had lied to his son about the relationship being over. He said that his son would give him money whenever he wanted it. 52 The appellant's counsel conceded that the appellant had previously said in his evidence in 2001 that maybe he had lied to his son. The appellant agreed that he was spending money on the deceased right up until her death. 53 The appellant's counsel conceded that the appellant had previously said in his evidence in 2001 that he had spoken to the deceased alone at her home and said "I will give you whatever you want, won't you change your mind." The appellant now denied saying those words or that they meant he was trying to induce her to go to Melbourne with her. 54 The appellant also denied that he was upset when he visited the deceased's home on 14 February 2000 and was shown photographs of the deceased's son's 21st birthday party. He agreed that he had asked, words to the effect "How come you didn't invite me?" He said that Mr Diab thought that he was upset. 55 The appellant was taken through the events of 17-18 February 2000 in the hotel room and denied that he had planned to kill the deceased. The appellant was questioned about not recalling what happened after she swore at him and he was taken to his evidence in 2001. He had previously been asked about what he did after he took the knife off the deceased and he had responded by saying: "I hit her but I how I did, I hit her, or where did I hit her, I don't know. I fell to the ground and then I got up and I don't know what happened." 56 He was then asked why he tried to take the knife off her and he replied: "In order to keep the knife away from me and her, this is what I thought about but she didn't let me, she didn't give me a chance to." 57 He was then asked what happened to which he responded: "This is what happened, like I told you I hit her, I stabbed her and I got up from the floor and found her next to me." The trial judge's summing up 58 His Honour was required to direct the jury in a manner consistent with s 23 of the Crimes Act which is in the following terms: "(1) Where, on the trial of a person for murder, it appears that the act or omission causing death was an act done or omitted under provocation and, but for this subsection and the provocation, the jury would have found the accused guilty of murder, the jury shall acquit the accused of murder and find the accused guilty of manslaughter. (2) For the purposes of subsection (1), an act or omission causing death is an act done or omitted under provocation where: (a) the act or omission is the result of a loss of self-control on the part of the accused that was induced by any conduct of the deceased (including grossly insulting words or gestures) towards or affecting the accused, and (b) that conduct of the deceased was such as could have induced an ordinary person in the position of the accused to have so far lost self-control as to have formed an intent to kill, or to inflict grievous bodily harm upon, the deceased, whether that conduct of the deceased occurred immediately before the act or omission causing death or at any previous time. (3) For the purpose of determining whether an act or omission causing death was an act done or omitted under provocation as provided by subsection (2), there is no rule of law that provocation is negatived if: (a) there was not a reasonable proportion between the act or omission causing death and the conduct of the deceased that induced the act or omission, (b) the act or omission causing death was not an act done or omitted suddenly, or (c) the act or omission causing death was an act done or omitted with any intent to take life or inflict grievous bodily harm. (4) Where, on the trial of a person for murder, there is any evidence that the act causing death was an act done or omitted under provocation as provided by subsection (2), the onus is on the prosecution to prove beyond reasonable doubt that the act or omission causing death was not an act done or omitted under provocation. (5) This section does not exclude or limit any defence to a charge of murder. 59 The trial judge commenced the summing up by giving the standard directions of general application. His Honour identified the fact that there was no question in the trial but that the appellant's actions had caused the death of the deceased. His Honour also identified the fact that the appellant's actions were carried out with an intention either to kill or cause really serious bodily harm. The issue in the case was confined to the question of provocation. 60 His Honour was careful to identify for the jury that the concept of provocation as understood in the criminal law may be different from a lay person's impression of provocation. His Honour identified that it was not for the accused to prove that he was acting under provocation but for the Crown to prove beyond reasonable doubt that he was not. His Honour gave the jury the following summary of the relevant law: "You heard the learned Crown Prosecutor in his address refer to two questions which arise, and I shall now take you to them. The law provides that an act causing death is an act done under provocation where: 1. The act is a 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. That is the first matter. And I use the word "and", members of the jury, which you know is a conjuctive; 2. The conduct of the deceased was such that it 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 inflict grievous bodily harm upon the deceased, where that follows from the conduct of the deceased." 61 Later his Honour said: "So members of the jury, these principles of law require you to consider the following question or questions. The first question is this: 1. May the deceased's conduct, that is the things which she did or said or both, have induced, that is caused, the accused to lose his self control and, again, members of the jury, that depends upon your findings of fact. If you were to find, and I will come back to this again, that you find that you accept as a fact that certain of the gestures or statements made by the deceased occurred, then members of the jury, that is a matter which you take into account in determining the questions which I posed to you, including the first question which I shall repeat again before going on any further. First question is, may the deceased conduct, that is the things she did or said, depending upon what you find, or both, have induced, that is caused, the accused to lose his self control." 62 His Honour then directed the jury's attention to the relevant facts, including the evidence of Mr Moses, reminding them that if the words allegedly said by the deceased to the accused relating to his relatives, particularly his mother, were said then it could be particularly hurtful to a person of the accused's ethnic background. His Honour also drew attention to the allegation that the deceased said she would like to do certain things with a cucumber to the appellant's daughter. 63 Having dealt with these matters his Honour turned attention to what he described as the second question being: "May the conduct of the deceased have induced an ordinary person in the position of the accused to have so far have lost self control as to have formed an intent to kill or inflict grievous bodily harm, serious bodily harm, on the deceased." 64 This question is, of course, raised by s 23(2)(b) of the Crimes Act. 65 His Honour then continued in these terms: "Members of the jury, an ordinary person is simply one who has the minimum powers of self control expected of an ordinary citizen who is sober and of the same age and sex of the accused. I might add, members of the jury, that even though some beer had been drunk there is no suggestion raised from the evidence that anybody was intoxicated at the time, whether the accused or the deceased. No suggestion has been raised in evidence that that would be the case." When one speaks of the effect of provocation on an ordinary person, in the position of the accused, that phrase means an ordinary person who has been provoked to the same degree of severity and for the same reason as the accused. In the present case this translates to a person with the minimum powers of self control of an ordinary person as I have described to you earlier, who is subjected to the words allegedly spoken by the deceased immediately before the lethal events occurred. The gestures allegedly made by the deceased involving both the use of the cucumber and, of course on the accused's evidence the use of the knife by her. And you take into account, if you were to find that you accepted those things happened, in determining whether it occurred to a person having the minimum powers of self control of a person, same sage, sex, as the accused. This question requires you to take full account of the sting of the provocation actually experienced by the accused but eliminates from your consideration an extraordinary response, if you find there such to be, by the accused to the provocation actually experienced. Thus, extraordinary act of aggressiveness or extraordinary loss of self control does not confer any protection against a conviction for murder. You should understand that when you are dealing with this question you are considering the possible reaction of an ordinary person in the position of the accused and not his inevitable, or probable reaction, but his possible reaction. If the answer to this second question is "no", the Crown has negatived provocation, and if you find that all other elements of murder have been established beyond reasonable doubt the appropriate verdict is guilty of murder. If the answer to the question is "yes", the Crown has failed to negative provocation, and the appropriate verdicts a not guilty of murder but guilty of manslaughter." 66 Immediately following these directions his Honour took an adjournment. In the absence of the jury his Honour indicated that he had dealt with the directions of law which he wanted to give in relation to provocation. He asked of counsel: "Anything so far gentlemen?" 67 Senior counsel who appeared for the appellant raised two matters. One related to his Honour's direction in relation to character and the second matter raised the direction given in relation to provocation. A discussion ensued as to whether or not when describing the ordinary person the full description of a person with the personal attributes of "age, sex, race, ethnic or cultural background, physical features, personal attributes, personal relationships, or past history" needed to be repeated on every occasion or whether it was adequate to refer to someone as an ordinary person "simply one who has minimum powers of self control expected of an ordinary citizen who is sober and of the same age and sex as the accused." His Honour did not accept that a full description was necessary on every occasion. 68 No other matter was raised by counsel for the appellant. Issues in the appeal 69 Senior counsel who appeared for the appellant on the appeal was not the same as senior counsel who appeared at the trial. Both are counsel of considerable reputation and experience in the criminal law. 70 Two complaints are now made about the directions given by the trial judge. The first relates to the issue of provocation and the second to the matter of lies and consciousness of guilt. Neither matter was raised at the trial and leave is accordingly required before either matter can be raised in this Court: rule 4 of the Criminal Appeal Rules. As Hunt AJA recently confirmed in R v Wilson [2005] NSWCCA 20 the requirements of r 4 are not "some mere technicality" to be "simply … brushed aside." An obligation falls upon defence counsel to assist the trial judge to give appropriate directions to the jury. Only if an identified error in the summing up has caused a miscarriage of justice, in respect of which the onus lies upon the appellant, will leave be granted [24]: see also R v Villa [2005] NSWCCA 4 at [74] and Papakosmas v The Queen (1999) 196 CLR 297 esp McHugh J at 319. Provocation 71 No complaint is made about the trial judge's direction with respect to provocation but for the sentence: "Thus, extraordinary act of aggressiveness or extraordinary loss of self control does not confer any protection against a conviction for murder." 72 It is submitted that when read in the context of the immediately preceding sentence where reference was made to an "extraordinary response by the accused to the provocation actually experienced …." reference to "extraordinary act of aggressiveness or extraordinary loss of self control" impermissibly directs the jury's attention to the physical character of the appellant's response to the alleged provocation having regard to the provision of s 23(3)(a) of the Crimes Act. It is submitted that where, as the evidence in the present case indicates, the deceased's death was caused by repetitive knife blows to various parts of her body it was necessary to exercise particular care in the directions because of the risk that the jury would be diverted by the physical intensity of the attack into considering whether the response of the appellant to the alleged provocation was reasonable and in proportion to the alleged provocation when determining whether the Crown had established that the appellant had not acted in response to the deceased's alleged acts of provocation. 73 The appellant recognises that the directions which the trial judge gave originate from the directions in relation to provocation provided in the Supreme Court Criminal Trial Bench Book where a standard direction is provided in the following terms: "This question requires you to take full account of the sting of the provocation actually experienced by the accused, but eliminates from your consideration an extraordinary response (if such there be) by the accused to the provocation actually experienced. Thus extraordinary aggressiveness or extraordinary want of self control on the part of the accused confers no protection against conviction for murder." 74 The only difference of substance, but in the appellant's submission of great significance, is the inclusion by the trial judge of the word "act" when his Honour refers to an "extraordinary act of aggressiveness" as not conferring protection. 75 The genesis of the standard direction was identified, in my opinion correctly, by counsel as being the judgment of Brennan CJ in Green v The Queen (1996-1997) 191 CLR 334. When considering s 23 the Chief Justice stated (at 339) in respect of subs (2)(a) that it: "contains no test of proportionality between the conduct of the deceased and the act or omission which causes the death." 76 When dealing with subs (2)(b) his Honour stated (at 340) that it: "requires the jury to take full account of the sting of the provocation actually experienced by the accused, but eliminates from the jury's consideration any extraordinary response by the accused to the provocation actually experienced. Thus extraordinary aggressiveness or extraordinary want of self control on the part of the accused confer no protection against conviction for murder." 77 It was submitted that this statement by the Chief Justice was apt to mislead especially if included in directions given to the jury. The problem which was identified is that, as Gummow J states in Green, "paragraph (b) does not allow consideration of the actual act or omission of the accused causing death and hence there is no occasion for a consideration of the proportion between those acts or omissions and the conduct of the deceased." at 378 (see also McHugh J at 373) 78 Although the Crown accepts that the trial judge's direction and the model direction could be more felicitously expressed, it is submitted that the sentence complained of must be understood in context and as it would have been understood by the jury and defence counsel at the trial. Central to that context is the question to which his Honour was directing attention, being whether the deceased's conduct may have induced an ordinary person in the position of the accused to have so far lost self control as to have formed the requisite intent. 79 In my opinion, the Crown's submission should be accepted. In the paragraph preceding the paragraph complained, of his Honour repeatedly refers to and describes the relevant attributes of the "ordinary person." Having reminded the jury of the alleged acts of provocation his Honour then emphasises, in the paragraph about which complaint is made, that the question which has to be answered is whether the response of the accused is the response which an ordinary person would make to the acts of provocation. Provocation is confined to the circumstances where the response of the ordinary person could result in the formation of an intention to kill. If the response is extraordinary, because it would not be that expected from an ordinary person, it takes from the accused the partial defence. Understood in this context his Honour's reference to an "extraordinary act of aggressiveness or extraordinary loss of self control" does not raise for consideration whether the response was proportionate to the deceased's conduct but merely whether it was the response to be expected from the ordinary person. An extraordinary act of aggressiveness or extraordinary loss of self control is not the response of the ordinary person. 80 It is important to bear in mind that even if the direction given by the trial judge carried the possibility that it may have been misunderstood and accordingly, misused by the jury, and I incline to the view that it did not, the appellant was represented by counsel who, although he took up other aspects of his Honour's direction, did not raise any issue with the controversial sentence. This could either be because he understood the sentence in context to be consistent with s 23 or may have been for other forensic reasons. It must be remembered that the significant issue in the trial was whether the alleged acts of provocation occurred at all. The veracity of the evidence of the appellant on this matter came under significant challenge and was the subject of discussion by the trial judge which in some respects was unfavourable to the appellant. However, the ferocity of the appellant's attack, although undeniable, was not emphasised in the summing up. If defence counsel had sought a redirection on that matter the inevitable consequence would have been to attract attention to the actual nature of the attack which, notwithstanding directions given by his Honour, may have operated to the detriment of the accused. 81 To my mind, those considerations are determinative of this ground of appeal. On at least this second occasion the appellant was represented by experienced senior counsel who, it must be accepted, gave deep consideration to the appellant's defence and was alive to any difficulties presented during the trial. If he had considered that his Honour's directions were likely to have misled the jury I have little doubt that the matter would have been raised. 82 In the circumstances I am not satisfied that any injustice has occurred and I would deny leave pursuant to r 4. Failure to give directions on consciousness of guilt 83 The Crown case at the trial was that the jury would be satisfied beyond reasonable doubt that the Crown had negatived provocation. It was submitted, inter alia, that the jury would totally reject the account given by the appellant as to the events which gave rise to the stabbing of the victim because, so it was submitted, any objective analysis of the appellant's evidence demonstrated that he was a liar. 84 The Crown firstly relied upon the interview conducted by Sgt Karras at the hotel in the early hours of 19 February 2000 which included the following: "Q: Did you have a shower? A. Yes, before the police came I had a shower and put the clothes on. Q. Why did you have a shower? A. Because of blood. Q. Why did you stab this woman? A. I can't remember. Q. Why was the lady standing or lying on the bed? A. I can't remember. Q. Where did you get the knife? A. I bring it for the woman, she asked me to bring the knife." 85 The appellant subsequently participated in a record of interview during the course of which the following was stated: "Q. What was the conversation about? A. We were, we stayed until midnight, there was nothing, she went to sleep and I went to sleep. Because I was in bed, she went to the toilet, she came back and she was saying that she was joking with me, she was playing with the knife, swinging it. I tried to get the knife off her, she hit me on my finger. Q. Is that the finger on your left hand, the one with the bandage on it? A. Yes. Q. That's the finger you were talking about, yes, OK. What happened after that? A. I don't know what happened. I took the knife and I found her on the floor, she was dead on the floor after two hours. I called my son and I asked him to call the police to tell them what happened with me. The police came. The police came and they said, what's happened? The knife was still in my hand and I told them that I, that the woman is dead. 86 Later in the record of interview, the following was recorded: "Q. Were you laying down? A. When I turned around I thought she was coming to sleep with me. Suddenly I saw her playing right away with the knife. The first one was on here, indicating to, if I could continue during the second time, and she said she was joking but the cut was serious and I took the knife off her and I stabbed her. … Q. And when Rebecca, when you say Rebecca came out and started waving the knife around where was she? A. She opened the fridge and as I said I don't remember what she had beer, water or something … then she came straight to me. I thought that she was coming to me. She started playing with the knife, she hit me here, and then she hit me on the other finger. Q. You're indicating your finger, your right index finger as well as the left one, is that correct? A. But then I will – she hit me on the other finger, then all of a sudden I saw myself taking the knife off her. I don't know what happened after that. Q. But before you just said you stabbed her. A. After she hit me, yes, I did stab her. … Q. OK, before she fell on you. When you say you thought she was joking and playing around with the knife what was she saying, what gave you the impression that she was joking? A. I said, why do you have the knife in your hand? She said I'm kidding, joking with you. I told her to put it back in the bag. She said yeah, yeah, all right. … I took the knife and then she fell on me because her knee hit my shoulder, my shoulder is hurting, and then I didn't know what happened, I told myself that I killed her. … Q. All right. Where did you stab her, sir, where? A. I don't know, when I woke up I didn't know why I did that and I covered her with a sheet. 87 In 2001, at his first trial, the appellant gave the following evidence: "Q. 2001 you were asked: Why did you try to take the knife off her? A. In order to keep the knife away from me and her just I thought about but she didn't let me, she didn't give me a chance to… Q. So what happened? A. This is what happened, like I told you I hit her, I stabbed her and I got up from the floor and I found her next to me. Q. How were you, at the time she was attacking you with the knife how were you feeling, what was in your mind? A. All I was, all I had in my head was to get the knife away from her hand but I couldn't do that. Q. Why did you want to get the knife away from her hand? A. In order to put it aside. Q. Put it aside? A. So, in order for me to get it away from her and me." 88 In the course of the retrial in 2004, the appellant gave the following evidence in chief: "Q. What happened next? A. When she came back she said 'every time I spend some moments with you or time with you together some of your children call us and disturb us.' I tried to talk to her calmly because she was getting a little bit edgy and I didn't want her to be edgy. I said 'come and sit next to me on the bed and lets talk it over'. She come and sat next to me and wanted to make love again. I said 'I can't do it anymore because I am very tired. If you wait until the morning we can have another go at it. Let's have a chat together and let's put it off until the morning but not necessarily at this moment.' She got up and she was swearing. Q. What was she saying? A. She said 'your mother is a slut. I am going to fuck your mother. All your children are sluts and hopeless' and she went to a table. There were fruit and vegetables on the table. She used a cucumber on her vagina and on her rectum. I got up and said 'please stop doing that.' When I pushed her the cucumber fell to the floor. And she was – she was, at the moment screaming and shouting and swearing at my mother and my children and she had the cucumber that she wanted to use. I said 'this cucumber is better than you.' She said 'this cucumber I need to use it on your daughter because she has her birthday the following day. Because her husband cannot sleep with her and I want to use it on her. I want to use that cucumber on her because she is a slut.' The cucumber fell to the floor. I knelt to get hold of it. She hit me with her foot on my shoulder. I got up, I said 'why are you hitting me for?' She said 'I want to kill you, you son of a bitch.' She grabbed the knife and she attacked me. As I was retreating I fell on the bed. She jumped on top of me. She said 'I want to kill you, you son of a bitch, I want to kill you, I want to kill you.' That was the last thing I know. … I swear to God that – my whole body was burning I couldn't even take a breath because I was so upset and insulted." 89 The submission of the Crown at the second trial was that the jury would be satisfied that after consideration of the evidence of the appellant and a comparison of that account with earlier accounts his evidence at the trial was fabricated. Attention is drawn by the appellant to the address of prosecuting counsel which included the following: "It's my suggestion to you that the only real issue in this case is whether the accused has raised evidence to suggest that he was provoked into stabbing her. You will recall I cross-examined the accused, not only had he said or claimed that Rebecca used those words and did what he claimed she did with the cucumber, I reminded him that in 2001, in addition to those claims, he said other things were running through his mind. And you will recall I went through the exercise of reminding him of the questions he was asked back in 2001 and the answers he gave. Well, he had put forward that he had had two different states of mind at the relevant time. You will be satisfied after careful examination of the evidence that the accused has fabricated the words and gestures he claimed Rebecca used towards him. In relation to my submission to you that the accused has been telling you lies about, when he has been trying to put forward this part of the defence. He has also, I suggest to you in the interview he had with the police, and you have the videotape before you, and the interview with Detective Karras, he lied to police, in particular to his claim that Rebecca was waving a knife around in the lead up to the stabbing. I suggest to you what happened afterwards he realised how ludicrous how unbelievable that version was. And what he did, he took advantage of the fact his son Ahmed had phoned him about 11.00 pm on the evening of 17 February 2000 in the hotel room to invent the story he has now put forward. He has used that phone call as being a trigger for his asserted claims of Rebecca using these insulting words towards members of his family. Totally different version what he had given to the police. He has invented that story, I suggest to you, Rebecca using these insulting words and gestures, in the hope of escaping a murder conviction and securing for himself a manslaughter conviction. You recall, and I am not going to take you through it, I reminded him of questions he was asked in 2001 and the answers he gave which suggested he had a little bit more of a memory for what had occurred, at least back then. He had this, I suggest, convenient amnesia as to what took place. He tried to suggest yesterday that he lost consciousness. I think Detective Karras asked him some specific questions about that and his answers were, in effect, no. Well, he didn't want to tell you what happened. I suggest he does know what happened, what took place at the time. He doesn't want to tell you because if he was to tell you the truth it would implicate him. His version in this courtroom has certainly shifted from the version he gave police." 90 In the course of his summing up, the trial judge said, before taking the jury to the relevant evidentiary passages: "The Crown, you will recollect, argued that you would totally reject the account given to you by the accused as to the events which gave rise to the stabbing of the deceased because the Crown argues that an objective analysis of the accused's evidence demonstrates that he is a liar. And the Crown in that regard argued that when you looked at the various accounts given by the accused from the time of his apprehension to the evidence he gave before you that the discrepancies which occurred in that evidence are such as to give rise to you finding that the accused is not a witness of truth." 91 His Honour later stated that: "The Crown says that when you look at what he said in the past, what he says now you wouldn't accept him." The appellant's submission 92 The appellant submits that at no stage in the summing up were the jury given any directions as to how they were to consider in their fact finding process the evidence of the appellant which was said to contain lies. It is submitted that Edwards v The Queen (1993) 178 CLR 193 required that the jury should have been given guidance in relation to lies which may have been told by the appellant. Attention was drawn to the familiar passage in Broadhurst v the Queen [1964] AC 441 at 457: "… a natural tendency for a jury to think that if an accused is lying, it must be because he is guilty, and accordingly to convict him without more ado. It is the duty of the judge to make it clear to them that this is not so." 93 It was further submitted that this is not a case where the approach taken by this Court in R v Hodge [2002] NSWCCA 10 has relevance. In that matter the Court held that the case had been conducted on the basis that any lie told did not go to a consciousness of guilt in the accused and, as such, a direction on lies was not required. Attention is also drawn by the appellant to the decision of this Court in R v Sievers [2004] NSWCCA 463 where the majority of the Court held that an Edwards-type direction was appropriate where the only issue was whether or not a verdict of manslaughter should be entered on the basis of provocation. The submissions of the Crown 94 The respondent draws attention to the address of the Crown Prosecutor at the trial and the instances in which it was suggested that the appellant had been untruthful. It is submitted that only in relation to evidence which the appellant gave that he had lost consciousness (which had previously been denied to police) could the jury have understood that the appellant may have told lies out of a consciousness that a true account of his actions may indicate that he had committed murder rather than manslaughter. 95 The Crown draws attention to the fact that in the course of summing up to the jury the trial judge gave careful directions in relation to the competing versions of the relevant aspects of the account of events given by the appellant. At an early point in the summing up the trial judge directed the jury that the Crown bore the onus of proving the appellant guilty of murder notwithstanding that the appellant had given evidence. His Honour then directed the jury in the following terms: "Even if you disbelieve what he said that disbelief does not, by itself, amount to material which you can be satisfied by the Crown that the accused is guilty of murder. However, of course, members of the jury, if you do reject what the accused has to say as to the events of the fatal evening then the Crown's task in satisfying you that he is guilty of murder, will be facilitated." 96 It is submitted that this direction fulfilled any obligation in the circumstances of this case to give directions as to how the jury should consider any lie which they believe the appellant may have told. It was appropriate and adequate for his Honour to direct the jury that it was not permissible for them to conclude that the appellant must have been guilty of murder and not manslaughter simply because they concluded that he had been lying in relation to his account of the events on the fatal evening. Furthermore, it is submitted that the alleged lies, if told, addressed the central factual issue in the case and, if lies, could not have an innocent explanation. That the appellant had lied went to the essential issue in the case which was whether the deceased acted in a manner which provoked the appellant. 97 Accordingly, it is submitted that the directions concerning the onus of proof on the Crown for murder and provocation/manslaughter and lies was sufficient in this case (see Patterson v Regina (Cth) [2001] NSWCCA 316 at [58]-[65]). Resolution of the second ground 98 In my opinion, the Crown's submissions should be accepted. 99 An essential element of the trial judge's directions was that the onus of establishing the guilt of the appellant rests upon the Crown, both in relation to establishing the ingredients of the offence of murder and rebutting provocation. His Honour emphasised to the jury that it was prohibited to reason that the appellant must have been guilty of murder and not manslaughter simply because they concluded that he had been lying in relation to his account of the events of the fatal evening. 100 Having regard to the way in which the Crown put the case to the jury, in my opinion, no more was required. The central factual issue in the case was whether the deceased had behaved in the provocative manner alleged by the appellant. A finding that the appellant was guilty of murder was open if the jury concluded that the appellant's account of the relevant events was a fabrication. However, if the appellant was telling lies about the relevant events this, as his Honour reminded the jury, would not conclude the matter. 101 When submitting that the appellant's account of the alleged events was unbelievable the Crown was not relying on the lies purely as going to the credit of the appellant or as disclosing consciousness of guilt. Rather the Crown's submission was that the appellant's account of the events was unbelievable (see Patterson v Regina (Cth)). 102 Apart from these matters, as with the first ground of appeal, no application was made for any further directions relevant to this ground despite two express invitations from the trial judge. 103 Having regard to the careful directions of the trial judge in relation to the onus carried by the Crown and the extent, if any, to which the jury could use a conclusion that the appellant had told untruths, it is not surprising that senior counsel appearing for the appellant at the trial was content not to invite further directions on the subject of lies. It is unlikely that any further attention to this aspect of the evidence would have raised a favourable impression of the appellant in the minds of the jury. In particular the appellant's explanation for not having mentioned the complete circumstances of the allegedly provoking events when interviewed by the police, being because of his concern for the deceased's reputation, was hardly credible. Any return to these matters, even to inform the jury of some of the conventional difficulties when lies may have been told, would be likely to have reinforced any adverse conclusion which the jury may otherwise have reached in relation to the appellant. 104 In these circumstances I am completely satisfied that there were legitimate tactical considerations inherent in senior counsel not seeking further directions on these matters and I would decline leave pursuant to rule 4 in relation to this ground of appeal. The proviso to s 6(1) of Criminal Appeal Act 1912. 105 The Crown submits that even if leave was granted no substantial miscarriage of justice has actually occurred and accordingly the proviso to s 6(1) of the Criminal Appeal Act should be applied. 106 The Crown further submits that a "properly instructed jury acting reasonably would inevitably convict the appellant of murder on the basis that there is no reasonable doubt that the appellant had not killed the deceased under provocation." 107 It is submitted in the alternative that "even if a properly instructed jury accepted that the appellant might have killed the deceased under provocation, that jury would be satisfied beyond reasonable doubt that an ordinary person subject to the same degree and nature of provocation as the appellant alleged, could not so far have lost self-control as to have formed the intent requisite for murder." 108 In the circumstances it is unnecessary to finally determine these submissions. However, to my mind, the Crown case was strong and for the reasons I have previously indicated I am not persuaded that there has been a miscarriage of justice. Orders 109 In my opinion, the appeal should be dismissed. 110 HISLOP J: I agree with McClellan CJ at CL. 111 ROTHMAN J: I agree with McClellan CJ at CL. ********** 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.