HEFFERNAN v REGINA [2006] NSWCCA 293

New South Wales Court of Criminal Appeal

CITATION: HEFFERNAN v REGINA [2006] NSWCCA 293

HEARING DATE(S): 31 August 2006

JUDGMENT DATE: 11 September 2006

JUDGMENT OF: Spigelman CJ at 1; McClellan CJ at CL at 2; Sully J at 34

DECISION: Leave to appeal refused

CATCHWORDS: CRIMINAL LAW – murder – appeal against conviction – directions on provocation – provocation not addressed by counsel – provocation raised on Crown case – onus of proof – whether directions on provocation reversed the onus of proof – fair reading of the directions as a whole

LEGISLATION CITED: Crimes Act 1900

Fingleton v R (2005) 216 ALR 474 Li (2003) 140 A Crim R 288 Murray v R (2002) 211 CLR 193 CASES CITED: Pemble v R (1971) 124 CLR 107 R v ITA (2003) 139 A Crim R 340 R v Wilson (2005) 62 NSWLR 346 R v Villa (2005) NSWCCA 4

PARTIES: William Patrick Heffernan (Appl) The Crown

FILE NUMBER(S): CCA 2006/813

COUNSEL: T A Game SC (Appl) P G Ingram (Crown)

SOLICITORS: Legal Aid Commission of NSW (Appl) Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 2003/99

LOWER COURT JUDICIAL OFFICER: Hoeben J

LOWER COURT DATE OF DECISION: 29 July 2005

IN THE COURT OF CRIMINAL APPEAL 2006/813

SPIGELMAN CJ McCLELLAN CJ at CL SULLY J

MONDAY 11 SEPTEMBER 2006 HEFFERNAN, William Patrick v REGINA Judgment 1 SPIGELMAN CJ: I agree with McClellan CJ at CL. 2 McCLELLAN CJ at CL: The appellant stood trial before Hoeben J and a jury, for the murder of Paul Anthony Callaway. On 5 May 2005 the jury returned a guilty verdict and the appellant was later sentenced to a non-parole period of ten years with a balance of term of four years. He appeals against his conviction. At issue are the trial judge's directions with respect to provocation. 3 Many of the relevant facts were not in dispute at the trial. The deceased was a motor mechanic who had recently done some mechanical repairs for the appellant. It was agreed that for at least part of this work he would be paid with beer. That promise was fulfilled when on the night of 25 August 2002, the appellant, his girlfriend Ms Osborn and her son went to the deceased's residence, taking with them a quantity of beer. Throughout the evening each of the adults consumed a significant quantity of alcohol. 4 It was the Crown case that during the evening the deceased made sexual advances to Ms Osborn in a bedroom at the house. It was alleged that the appellant observed sufficient of the activity to understand that advances had been made. Later, (there was disagreement as to the time which had elapsed), a violent argument broke out between the men which led to physical exchanges in the kitchen, where two clumps of the appellant's hair were pulled from his head. The fight did not end there but continued outside where, according to Ms Osborn, the appellant hit the deceased over the head four or five times with a large piece of wood causing a moderately severe fracture of his skull. At this time the deceased was on the ground holding onto the appellant's knees. He later died from those wounds. 5 The appellant gave a different account. He denied that he had witnessed the "sexual incident" or any provocative act by the deceased. His case was based entirely on self-defence. He said that in defending himself from the unprovoked and unexplained aggression from the deceased he had hit the deceased a number of times inside the kitchen with a pot and later, but on only one occasion, outside with a piece of wood. The Crown responded to this account by pointing to the fact that for the deceased to have made his way outside the house he must have been conscious and accordingly, it was submitted that the critical blow was delivered outside. The Crown also submitted that the medical evidence was consistent with Ms Osborn's account. It is unnecessary to resolve these conflicting accounts in this appeal. However, the fact that the appellant denied witnessing any act of the deceased which could have provoked him meant that the jury was required to consider that issue. 6 Although disavowed by the appellant, as I have indicated, the issue of provocation was raised on the Crown case and, for this reason, the trial judge gave the jury directions with regard to it: Pemble v R (1971) 124 CLR 107, Fingleton v R (2005) 216 ALR 474 at [83]. However, neither counsel addressed the issue. 7 Although the trial judge gave the jury detailed written directions on relevant matters they did not include any directions with respect to provocation. His Honour gave oral directions on that issue. They followed a discussion by his Honour of the usual and necessary general directions, including the direction, which was repeated, that "the defence has no onus to prove anything at all in this trial." 8 The directions which his Honour gave with respect to provocation may be considered in stages. This was the approach taken by counsel for the appellant. However, this can prove to be misleading and it is the effect of the whole of the relevant directions, as understood by the jury, which is important. 9 The matter was mentioned by his Honour at the end of the first day of the summing up where mere passing reference is made to provocation. His Honour said at [86]: "and you have also heard from counsel that because of the particular facts in this case I will have to say something to you about provocation, I will have to say something to you about intoxication and how they affect these matters. Provocation is really only something you need think about with murder, but if proved, it can reduce murder to manslaughter." 10 His Honour's use of the phrase "if proved" in the context of provocation was not correct. As the appellant submitted that formulation reversed the onus of proof. However, his Honour's observation was brief and made at a time when he was merely indicating the list of issues about which he would be providing detailed directions the following day. His Honour's remarks at this point in the summing-up were of no particular consequence. Even if the remarks had been of significance the appropriate response would have been for the trial judge to give clear directions when the issue was further considered. 11 On the following day, after providing the jury with detailed directions with respect to self defence, his Honour returned to the matter of provocation. At [164] his Honour commented that the appellant was not relying on provocation but, nevertheless, if the jury were to accept the evidence of Ms Osborn that the appellant did observe "pulling up pants and things of that kind, pulling up trousers," this "may have acted as provocation for what ultimately occurred." 12 At [165] his Honour stressed that the question of provocation "does not involve the accused proving anything" but rather "involves the Crown disproving something." His Honour then said: "So the Crown has to satisfy you beyond reasonable doubt that the act causing the death of the deceased was not an act done under provocation." 13 This was a clear and concise statement of the approach which the law requires to be taken to the issue of provocation. It was clearly correct. In the context of the whole of the summing-up in relation to the matter of provocation it provides the foundation for his Honour's further development of the issue. 14 Having provided this fundamental direction, the trial judge directed the jury's attention to s 23 of the Crimes Act. His Honour read the section and then said at [168]: "You may think on the evidence in this case that there is no clear evidence of loss of self-control, and you will find when I go through the elements of provocation that self-control is a very important, in fact a vital and essential factor. Having said that, however, if you accept the evidence of Christine Osborn about the accused opening the door, seeing certain things occurring and from that point on, arguments occurring which escalated into a physical confrontation, which again, if you accept what Christine Osborn says, culminated in the confrontation outside the house and more than one blow with a piece of wood, then you may think there is sufficient evidence from those facts to indicate a loss of self-control to the necessary level. But I stress again, it is a matter for the Crown to disprove provocation, it is not a matter for the accused to prove himself." 15 Complaint is made that by referring to "acceptance of evidence" and "sufficient evidence", particularly following the observation that "you may think" there was "no clear evidence of loss of self control" his Honour misstated the appropriate test. It was submitted that all that the law required was that the evidence raised a reasonable possibility that the appellant did lose self control: (Li (2003) 140 A Crim R 288 at 301; Murray v R (2002) 211 CLR 193 at [201], [212-3]). By putting the issue as he did it was submitted that his Honour, at the very least, had incorrectly placed an evidentiary onus on the appellant. 16 I do not accept this submission. It must be remembered that his Honour was at this point directing the jury's attention to the evidence and endeavouring to relate it to the elements of s 23. Given that the appellant's case disavowed provocation and his evidence was that he merely reacted to the deceased's aggression towards him, his Honour's initial observation as to the evidence was appropriate. His Honour's later observations merely direct attention to the evidence which might possibly indicate a loss of self control mindful of the need, as his Honour reminds the jury, that it was necessary for the "Crown to disprove provocation, it is not a matter for the accused to prove himself." 17 In [169] the trial judge again reminded the jury that the onus rests upon the Crown. His Honour's directions were given with clarity and no complaint is made about them. His Honour said: "The Crown must establish in order to prove that the accused is guilty of murder that the accused was not acting under provocation when he killed the deceased. It is 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. If the Crown satisfied you beyond reasonable doubt that all the other elements of murder have been established and also that the accused was not provoked to do what he did, the appropriate verdict is guilty of murder. If, however, the Crown does not satisfy you that he was not provoked the accused will not be guilty of murder but guilty of the less serious offence of manslaughter. That is, manslaughter by provocation, so that is how it works." 18 His Honour then provided the jury with guidance in relation to s 23(2)(a) and (b) of the Crimes Act from which they were required to determine the relevant character of the acts of the appellant. No complaint is made about these directions. Having identified the relevant legal principles his Honour again directed the jury's attention to the evidence. He said at [173]: "There must be a causal connection. This is very important. There must be a causal connection between the conduct of the deceased and the loss of self-control. So you first of all have to be satisfied that there was a loss of control and there has to be a causal connection between the act of the deceased, that is, the approach to Ms Osborn if you find the accused was aware of it, and the loss of self-control. In determining whether there was such a connection you must consider the gravity of the alleged provocation so far as the accused is concerned." 19 I have emphasised the phrases about which the appellant complains. To my mind the reference to a causal connection raises no difficulty. The jury must have understood his Honour to be referring to that connection as being necessary before any suggested provocative act was required to be considered. 20 I accept that his Honour's reference to the jury being "satisfied that there was a loss of control" was capable, if considered in isolation, of being misunderstood. If it was understood as imposing an onus upon the appellant difficulties might arise. However, his Honour's remarks at [173] must be read in context. That context was a discussion of the requirements of s 23(2). His Honour was merely raising for the jury's consideration how the evidence in the case could relate to the legal elements of provocation. Once that context is appreciated his Honour's reference to there being "a causal connection" and "satisfied that there was a loss of self control" were entirely benign. His Honour was merely explaining, as the section requires, that provocation involves a loss of self control caused by the provocative act of the deceased. 21 His Honour then addressed remarks to the role which intoxication may play in provocation. In [176] his Honour said: "If an intoxicated accused has in fact lost his self-control it becomes a question of fact for you, the jury, whether that loss of self-control was caused by the deceased's conduct or solely caused by the inflammatory effects of drink. Of course that is the other alternative. You have got to be satisfied it was the provocative conduct that caused the loss of self-control if you found in fact there was a loss of self-control. So if the loss of self-control was caused solely by the inflammatory effects of drink then the necessary causal connection has not been made out." 22 Again, as the appellant pointed out, the phrase in his Honour's remarks which I have emphasised was capable of being misunderstood if taken in isolation. However, his Honour was talking in the context of s 23(2)(a) and the considerations which arise when an accused may have been intoxicated. The appropriate understanding of his Honour's direction is informed by the summary contained in the last sentence of the paragraph. Plainly, if there was nothing to indicate a loss of self-control the issue of provocation would not arise. Before intoxication was required to be considered the jury must be able to identify an act of loss of self-control which could have been induced by it. 23 His Honour again summarised the position in [177] which was in the following terms: "If you were satisfied beyond reasonable doubt that the answer to the first question, that is, may the deceased's conduct have induced the accused to lose his self-control, if you are satisfied the answer to that is no then the Crown has negatived provocation and, providing you are satisfied beyond reasonable doubt as to all the elements of murder to which I have earlier referred, the appropriate verdict is guilty of murder." 24 No complaint is made about this paragraph, which correctly places the issue with respect to self control before the jury. 25 Finally his Honour considered the question raised by s 23(2)(b). No complaint is made about these passages of the summing-up. 26 His Honour concluded his discussion about provocation at [184] where he said: "So that is all I wanted to say about provocation. They are the principles. You might think that before you even get to the question of provocation you have to make a finding of fact about whether the circumstances which are required to exist, loss of self-control, the necessary provocative act, did in fact occur. But if you did make those findings of fact then that is the process of reasoning that you go through to determine whether the defence of provocation has been negatived by the Crown in establishing its case of murder against the accused." 27 The appellant's complaint in relation to this paragraph relates to the phrase "you have to make a finding." The submission emphasised that his Honour referred on two occasions to a "finding of fact" and, it was submitted, that the jury would have understood that the appellant carried an "onus of proof." 28 I do not accept this submission. To my mind his Honour was merely indicating that before the issue of provocation was required to be considered at all, a finding that there was a circumstance capable of being a provocative act was necessary. His Honour was not, at this point, providing directions in relation to the elements of provocation. Having already discussed the principles at some length his Honour was merely reminding the jury that they had to consider the evidence as to whether a possible provocative act had occurred, and, more significantly whether it had been witnessed by the appellant, before turning to consider whether the Crown had discharged its onus in accordance with the law. Although unnecessary, his Honour's reference to loss of control was merely incidental to his Honour's primary remarks, which were unexceptional. His Honour makes plain in the final sentence of the paragraph that the jury must first determine whether relevant factual findings could be made, and that if made, they required consideration by reference to the principles of provocation which he had explained. He further emphasised that the onus rests upon the Crown to negative the defence. 29 It is often possible on an appeal to point to a sentence or passage in a summing-up that is ambiguous or possibly erroneous when considered in isolation. The opportunity is available on appeal for detailed study of the trial judge's remarks in the transcript. This is not the case at trial. Although it is common that the jury receive a typed copy of the trial judge's directions on the essential elements of any offence, it is important to remember that the jury do not receive a typed copy of the summing-up. It is the understanding which the jury receives from listening to the whole of the summing-up that is important when complaint is made that the trial has miscarried. 30 In my opinion, in the present case, a fair reading of the whole of the summing-up does not disclose error. By the time his Honour left the topic of provocation the jury had been directed that the onus of proof remained on the prosecution throughout the trial. There had been a total of five directions which correctly articulated the onus and standard of proof in relation to provocation ([165], [168], [169], [177] and [183]). It is these directions which I am satisfied would have informed the jury's deliberations on that issue. 31 The appellant was represented at trial by experienced senior counsel. No complaint was made in relation to any of the directions now sought to be impugned and accordingly Rule 4 applies. Defence counsel's silence may have been for tactical reasons, because, as I have indicated, the defence disavowed provocation and relied entirely on self defence. Whatever be the reason, the trial judge correctly identified that there was evidence capable of raising provocation and accordingly the issue was required to be addressed. Having been raised counsel were obliged to assist the trial judge to ensure that appropriate directions were given. 32 The obligations of counsel and the consequence of a failure to raise a problem with respect to the summing up has been considered by this Court on many occasions: see R v Wilson (2005) 62 NSWLR 346 at [352-3]; R v Villa (2005) NSWCCA 4 at [74]; R v ITA (2003) 139 A Crim R 340 at [355-7] and [365]. The principles are well understood. This Court is entitled to conclude that the view I have reached that his Honour's directions, considered in context, were appropriate was the view of counsel who heard his Honour's remarks as they were delivered. 33 In my opinion leave to appeal should be refused. 34 SULLY J: I agree with McClellan CJ at CL. **********