New South Wales Court of Criminal Appeal CITATION: Disano v Regina [2006] NSWCCA 125 HEARING DATE(S): 13/04/2006 JUDGMENT DATE: 18 May 2006 JUDGMENT OF: McClellan CJ at CL at 1; Hoeben J at 2; Johnson J at 46 DECISION: Appeal dismissed. CATCHWORDS: CRIMINAL LAW - appeal against conviction - murder - whether jury were misdirected as to provocation under s23(3)(a) of the Crimes Act - rule 4 of the Criminal Appeal Rules. LEGISLATION CITED: Crimes Act 1900 Criminal Appeal Rules R v Ita (2003) 139 A Crim R 340 at [90] Papakosmas v The Queen (1999) 196 CLR 297 at 319 CASES CITED: R v Szabo [2000] NSWCCA 226 at [46-49] R v Villa [2005] NSWCCA 4 at [74] R v Wilson [2005] NSWCCA 20 PARTIES: Carmelo Disano - Appellant Regina - Respondent FILE NUMBER(S): CCA 2005/2375 COUNSEL: Paul Byrne SC - Appellant D Arnott SC - Crown SOLICITORS: Nyman Gibson Stewart - Appellant S Kavanagh, Solicitor for Public Prosecutions - Crown LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): 70028/04; 2004/23 LOWER COURT JUDICIAL OFFICER: Knight AJ LOWER COURT DATE OF DECISION: 13/04/2006 IN THE COURT OF CRIMINAL APPEAL 2005/2375 McCLELLAN CJ at CL HOEBEN J JOHNSON J Thursday, 18 May, 2006 Carmelo DISANO v REGINA Judgment 1 McCLELLAN CJ at CL: I agree with Hoeben J. 2 HOEBEN J: The appellant, Carmelo Disano, was tried on a charge that on 2 January 2004 at Abbotsford in the State of New South Wales he did murder Antonino Basile, the father of his estranged wife. On 8 December 2004 after a trial which lasted thirteen days, the appellant was convicted of the offence of murder. He was sentenced to a term of imprisonment with a non-parole period of 12 years and a balance of term of 5 years. The sentence was to commence on 2 January 2004. 3 The appellant had pleaded not guilty of murder but guilty of manslaughter, but the Crown did not accept the latter plea in discharge of the indictment. The appellant's partial defence relied on a number of alternate grounds. (i) Lack of intent to kill or inflict grievous bodily harm and the availability of an alternative finding of manslaughter by an unlawful and dangerous act. (ii) The appellant had acted in reasonable self defence after the deceased had been the aggressor in the altercation between them, including punching and kicking by the deceased. (iii) Provocation by words and conduct of the deceased, both on the occasion of the fatal altercation with the appellant and in meetings which had occurred since the separation of the appellant and his wife. (iv) The appellant suffered substantial impairment by reason of an abnormality of mind based on an established medical condition, that is the fact of his severe depression and his paranoid personality disorder. 4 The only ground of appeal raised was: "Ground 1 – The directions given on the issue of provocation were inadequate and erroneous in that the jury were not informed pursuant to s23(3)(a) of the Crimes Act 1900 that there is no rule of law that provocation is negatived if there was not a reasonable proportion between the act causing death and the conduct of the deceased that induced the act." Factual Background 5 The appellant married Maria Disano, the daughter of the deceased, in 1978. They had two daughters, Vanessa born in 1981, and Sarah born in 1986. During the course of the marriage the appellant had temper outbursts, would throw goods and damage property. The appellant used to lose his temper very quickly. The marriage started to deteriorate after the birth of Sarah. 6 On 28 July 2002 the appellant lost his temper over Sarah using the bathroom. In the course of that argument he threatened to throw his wife over the balcony of their Concord home. That night Mrs Disano and the daughters left the family home and thereafter resided with her parents, the deceased and his wife Nella. The appellant remained alone in the family home. 7 From that date there was evidence that the appellant had become depressed. The contact between him and his family was very limited. There was, however, contact on a few occasions. 8 One of those occasions was on 18 November 2002 when the appellant attended Sarah's birthday celebration uninvited. The function occurred at the deceased's home. Although the appellant behaved appropriately, there was clear tension between him and the deceased and it was obvious that the deceased was unhappy that the appellant had attended. 9 A few weeks before his death, the deceased and his wife had visited the home of Nina and Carmelo Savoca. Nina Savoca was the appellant's sister. The appellant was there when the deceased and his wife arrived. A verbal altercation occurred between the deceased and the appellant at those premises with the appellant apparently spitting on the deceased and accusing him and his wife of breaking up his marriage. The appellant had called Nella Basile a "bastard". 10 Another apparent source of discord between the deceased and the appellant was that the appellant believed that the house which the deceased had made available to him and his wife to live in when they were first married, should have been given to his wife in accordance with Sicilian tradition. 11 On the morning of 2 January 2004 the appellant and the deceased were involved in a fight on a path near the Abbotsford Wharf, which resulted in the death of the deceased. The appellant was perhaps bigger in the shoulders than the deceased, but not much taller. There was a considerable age difference in that the appellant was 53, whilst the deceased was 70 years of age. 12 On that morning the appellant was fishing at the wharf when the deceased came up to him and asked to speak to him. They walked off the wharf together to a nearby park. At the trial the appellant did not give evidence. His version of what thereafter occurred is contained in the ERISP, produced as a result of his interview with the police, and in the statement of his brother-in-law, Salvatore Gangi. There was video from a security camera located on the wharf which showed the deceased coming onto the wharf and speaking to the appellant at about 8.13am. It showed the deceased leaving the wharf with the appellant following him. 13 According to what the appellant told the police, after they had left the wharf the deceased said, "You've insulted my wife" and punched the appellant in the face. The appellant punched the deceased back and a fight developed. During the fight the appellant claimed that they punched and bit and kicked each other and at various stages of the fight each was on the ground. 14 The appellant had a laceration over his eye requiring sutures and some other minor lacerations and abrasions. The deceased had sustained head injuries, as well as multiple rib fractures. Death was in fact caused by suffocation. 15 After the fight the appellant went to his sister and brother-in-law's house, Rosa and Salvatore Gangi. According to Mr Gangi's statement, which was read to the jury, the appellant told him: "He (the deceased) started to throw a punch at me. I started to punch as well. We got tangled together and he start to bites me, tried to do everything, he fell down and I kick him a couple of time when he was on the ground." I said, "You should apologise to me". When he was on the ground I walk away." 16 Later that day Mr Gangi drove the appellant to the Five Dock Police Station where he was arrested and interviewed. In that interview, while the appellant said that he and the deceased had punched each other many times and kicked each other during the fight, he denied kicking the deceased after he fell to the ground for the last time, saying that when this occurred he went home. In that interview he did admit to having his foot on the deceased's back at one point in time, but said that following this, the deceased got up and started punching him again. 17 It seems clear that a violent physical confrontation occurred between the deceased and the appellant on 2 January 2004. It should be noted, however, that the evidence that the deceased threw the first punch came solely from the appellant. 18 Evidence was given by Dr Duflou, a forensic pathologist. He attributed the deceased's death to a combination of multiple blunt force injuries and the inhalation of foreign material. The blunt force injuries included twelve fractured ribs, de-gloving facial injuries and an injury to the left ear consistent with being stomped upon or kicked. The remaining injuries were most likely caused by punches. Suffocation causing the deceased's death occurred as a result of his inhaling leaf litter and bark material found in and partly obstructing his mouth, windpipe and airways. 19 There were two likely explanations for this: - the absence of an effective cough reflex caused by deep unconsciousness or the appellant having placed his foot on the deceased's back forcing him to inhale the foreign material. The appellant's footprint in blood on the back of the deceased's t-shirt suggested the latter. There were imprints of both the appellant's left and right shoes on the back of the deceased's t-shirt. The deceased's body was found with his arms beneath him in a "push-up" position. The presence of this material down the deceased's throat indicated that he was alive when he fell on the debris and inhaled it. 20 Apart from the appellant, the only eyewitness to what occurred was Jodie Bruce. She had parked her car and was walking down steps leading to the wharf to catch a ferry when she heard a noise. Looking in the direction of the noise, over 30 metres away, she saw a person kicking something. She gave the following evidence: "Q. When you say the man was kicking could you describe the manner in which he was doing that? A. He was forcibly kicking something but it wasn't in a frenzied way. It was very calculated. It was a very hard kick, so hard it was audible and you could hear that he was exerting some force in the kick and he would rebalance and then kick again. … Q. How many times is it you see the kicks being placed? A. To me it was probably between five and ten times, because – because of the rebalancing and then going into kicks so it wasn't – it wasn't ten kicks in a row, it was sort of slow. Q. And the rebalancing, did that appear to happen between each kick or only between some kicks? A. No, between each kick." 21 Although it was suggested at trial that the person whom Jodie Bruce saw was the deceased, the deceased's injuries would indicate otherwise and the jury's verdict indicates that they rejected that suggestion. 22 Both psychiatrists who gave evidence at the trial agreed that the applicant suffered from a depressive illness. In the appellant's case it was assessed as significant, and on the Crown's case as a condition which waxed and waned. The only other issue between the psychiatrists was whether the appellant's condition had substantially impaired his ability to control himself. Appellant's submissions 23 In order to understand the submission by the appellant, it is necessary to set out s23 of the Crimes Act, 1900. "23 Trial for murder—provocation (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. " 24 It was submitted by the appellant that it was necessary for the trial judge to give a direction in accordance with s23(3)(a), ie that provocation is not negatived if there was a lack of proportionality between the acts causing death and the conduct of the deceased which induced those acts. Such a direction was necessary because of the appellant's reliance upon self-defence in which proportionality of response is an important factor and because of the way in which the Crown had put the issue of provocation to the jury. It was submitted that the trial judge's error was in not correcting, for the benefit of the jury, the incorrect submission made by the Crown. Except for that omission, the appellant agreed that the trial judge's directions were unexceptionable. 25 The first remarks by the Crown which were impugned were: "The other aspect of the matter which was mentioned in a similar context as being what the Crown has to satisfy you in the negative is the question of provocation. Now where it comes to the question of provocation, again, is a subject which his Honour will direct you on that matter. But I expect his Honour's directions will contain the question that a person must act in a manner that a reasonable person, or a person with a minimum degree of self control would have done what the accused did if he had lost control of himself." (T.507/508) 26 The appellant submitted that the use of the words underlined would have focused the jury's attention on the actions of the appellant, not on his intent. The appellant submitted that the partial defence of provocation in New South Wales focuses on intent and not on the actions of the accused, ie that an ordinary person so lost control as to form the necessary intent to kill or inflict grievous bodily harm. 27 The other remarks by the Crown which were criticised were: "Now, if a man – let us assume for the purpose of argument that you have insulted his spouse and he then accosted you and said "why did you insult my wife or my husband?", and accompanied that with a punch – would that warrant the kind of treatment which the deceased received ? Again, it is a matter for you. I do not pause to go into detail on that." (T.509) 28 This, the appellant submitted, fairly and squarely raised the question of proportionality of response in the context of provocation and that this needed to be corrected by the trial judge. 29 In support of the submission, the appellant relied upon R v Szabo [2000] NSWCCA 226 [46-49]: "46 The Appellant's submission was as follows: " … His Honour failed to direct the jury that the provocation claimed was not negatived by the fact that the act was not "reasonably proportional to the conduct of the deceased that could induce the acts" causing the death of the deceased. Nor did his Honour direct the jury that the acts of the appellant if done with an intention to kill or an intent to inflict grievous bodily harm did not negative provocation (s23(3)(a)(c) Crimes Act ). These were important directions in this matter particularly having regard to the character of the attack upon the deceased and the nature of the provocation claimed by the appellant. The directions left the issue of "proportionality" unaddressed in circumstances where it clearly would be of concern to a jury. In fact the issue, if anything may have been interpreted by the jury as requiring "proportionality" to be considered in determining whether relevant conduct could induce "an ordinary person" to relevantly lose control." 47 The directions which the appellant contends should have been given were not requested by his counsel at the trial. 48 The duty of the trial judge was to direct the jury on the applicable principles of law. Unless the circumstances of the case made it necessary, he had no duty to direct them about what was not the law. The Crown did not suggest, contrary to s23(3)(a), that provocation was negatived by any lack of reasonable proportionality between the accused's conduct and the deceased's conduct. The trial judge repeatedly directed the jury that the s23(2)(b) issue was whether the ordinary person would have lost self-control in the manner described in that paragraph; if so, it would not matter how much greater the accused's reaction might have been compared to that of the ordinary person, and the trial judge did not suggest that it would matter. 49 The Crown did not make any submission to the contrary of s23(3)(c). Hence the s23(3)(c) direction, to which no oral argument was directed, was not called for. " (Heydon JA) 30 The appellant relied upon that passage as supporting the proposition that his Honour should have given a direction to the jury in accordance with s23(3)(a) because "the circumstances of the case made it necessary". Those circumstances were that the Crown in this case had suggested contrary to s23(3)(a) that provocation was negatived by lack of reasonable proportionality between the accused's conduct and the deceased's conduct and because self-defence, which did raise proportionality of response in a different context, was one of the matters which had been raised in the trial. These, it was submitted, were the very "circumstances" which Heydon JA had in mind in Szabo as would require such a direction to be given. Consideration 31 The issue in this appeal, ie the absence of a direction by the trial judge as to proportionality of response on the issue of provocation, was not raised at trial. Leave is accordingly required before the issue can be raised in this Court (rule 4 of the Criminal Appeal Rules). As Hunt AJA reaffirmed in R v Wilson [2005] NSWCCA 20 the requirements of r4 are not "some mere technicality" to be "simply … brushed aside". An obligation falls upon defence counsel at trial 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 under rule 4 (see also R v Villa [2005] NSWCCA 4 at [74] and Papakosmas v The Queen (1999) 196 CLR 297 at 319). 32 As was properly conceded on behalf of the appellant, his Honour's directions as to provocation were correct and appropriate. The appellant's complaint is that the "circumstances of the case" required a further direction in terms of s23(3)(a) clarifying the question of reasonable proportionality in the context of the partial defence of provocation. 33 The fact that self-defence and provocation were relied upon by the appellant at trial did not of itself require such a direction. Not only did his Honour provide clear and accurate oral directions in relation to each, he provided the jury with written directions which clearly set out the elements of each partial defence. The written and oral directions made clear the distinction between the two partial defences. Since the presence or absence of reasonable proportionality is not a separate element of provocation, there was no need for his Honour to specifically refer to it just because self-defence had been raised by the appellant. 34 The "circumstances of the case" upon which the appellant really relied are the remarks of the Crown in a context where self-defence was also being relied upon. In order to assess whether this complaint has been made out, one needs to look at what in fact was said by the Crown, not only in the context of self-defence having been raised by the appellant, but in the overall context of the trial. 35 The first passage relied upon by the appellant (para [25]) does not convey the meaning sought to be placed on it. It is at most an introductory remark by the Crown seeking to summarise in an anticipatory way the directions to be given by his Honour. It contains within it its own disclaimer in that it stresses the paramount position of his Honour in giving such directions. 36 There is in any event no error in that summary of principle by the Crown. The appellant's submission that it erroneously stressed actions rather than intent, involves a strained interpretation of what was actually said. Giving the words their ordinary meaning, the Crown's remarks went no further than to paraphrase the requirements of s23(2)(b) and would have been so understood by the jury. Those remarks by the Crown required no explanation or direction by his Honour. 37 The second set of remarks upon which the appellant relied (para [27]) are at best ambiguous. They could carry the meaning sought to be placed upon them by the appellant if one stressed the words "warrant" and "kind of treatment". Alternatively, in their context they could be regarded as doing no more than to emphasise the point which the Crown was seeking to make in its submissions - that the conduct of the deceased was not such as could induce an ordinary person to lose self-control. 38 That they were more likely to be understood by the jury in the latter way is clear from the earlier passage where the same example was given by the Crown: "What is the provocation that the accused claims that acted upon him? One is, he says, the deceased told him, "Why did you insult my wife?" Now, if somebody was to confront another person and say, "Why did you insult my wife?", whether that would result in his being provoked, here again, there is no evidence as to who started hitting whom." (T.508.18-.24) 39 That seems to be the interpretation given to the remarks by senior counsel appearing for the appellant at trial where the following was submitted on behalf of the appellant, apparently in response to those remarks. "Provocation arises where there is conduct of the deceased that causes a loss of self control in the accused. You don't just look at – as the Crown has suggested – what was said and done on that day. You are entitled to look at actions between the two people on occasions before that. And, in this case, in my submission to you, the point you start at is the refusal to shake hands. The second incident you'd look at would be the confrontation at the Savocas – all of that as background to what happened on that day, and the context in which you must look at what happened between the accused and the deceased on that day. So, you don't just look at, as you might with two strangers, someone walking up and saying, "You insulted my wife", boom. You look at it in the context of the relationship that these two men had, and the things that had gone on between them leading up to this fateful day, you might think." (T.526.1-20) 40 His Honour in his directions also appears to have reached a similar conclusion as to the effect of the Crown's remarks. When summarising the Crown case his Honour said: "You would still be satisfied that Mr Basile's acts were not such that they could have induced an ordinary person, in the position of Mr Disano, to have so far lost his self control as to the form the intention to kill or inflict grievous bodily harm on Mr Basile." (SU 24.9) 41 There is no doubt that the remarks by the Crown could have been better expressed. At worst the remarks were equivocal and could bear the interpretation sought to be placed upon them by the appellant. Nevertheless, the remarks formed one sentence of a thirteen page address. They were not repeated by his Honour in his directions to the jury, and were not subject to any criticism or request for redirection by senior counsel then appearing for the appellant. The submissions by the Crown were followed by those of senior counsel for the appellant and by his Honour's directions, both of which correctly stated the law as to provocation. His Honour repeatedly directed the jury that the s23(2)(b) issue was whether an ordinary person could have lost self-control in the manner described in that paragraph. In that regard the observations in R v ITA (2003) 139 A Crim R 340 at [90] are apposite: "… The atmosphere at a criminal trial is not easy to assess on appeal. Counsel at trial are well placed to determine whether, in the light of the way in which the case has been run, particular directions to the jury are defective. A failure to raise objections at the close of the judge's summing up is usually a reasonably reliable indicator of its fairness and adequacy." See also R v Szabo (at [41]). 42 Even if his Honour did fail to specifically correct the suggested misstatement by the Crown, that failure did not result in an unfair trial or miscarriage of justice. The circumstances of the case did not make it necessary, nor was his Honour required to give an express direction that provocation was not negatived by a lack of reasonable proportionality between the accused's conduct and the deceased's conduct. On the evidence before the jury, the case for provocation was tenuous and conviction was virtually inevitable. It is of some significance that although raised on his behalf at trial, the appellant did not claim provocation in his statements to the police or Mr Gangi. Those statements stressed self-defence. While such a failure by the appellant to testify as to a loss of self-control does not prevent the partial defence of provocation being raised, it is important in the context of the whole trial when considering what effect the alleged incorrect remarks by the Crown would have had on the jury. 43 Accordingly, even if the remarks by the Crown carried the possibility that they may have been misunderstood and accordingly misused by the jury, (and I am of the opinion that they did not), the appellant was represented by senior counsel who did not seek to correct the remarks or seek a direction to that effect from his Honour. This could have been because she did not understand the remarks in context to be inconsistent with s23, or it may have been for other forensic reasons. An important issue in the trial was whether the most significant act of provocation occurred at all, ie whether the deceased threw the first punch. The veracity of the account of the appellant on this matter came under significant challenge. Senior counsel for the appellant may have thought that raising the question of proportionality would have had the effect of attracting attention to both that factual issue and the injuries actually sustained by the deceased. 44 For the above reasons, even if the remarks by the Crown are to be given the effect submitted on behalf of the appellant, I am not satisfied that any injustice has occurred and I would deny leave pursuant to rule 4. 45 In my opinion the appeal should be dismissed. 46 JOHNSON J: I agree with Hoeben J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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