New South Wales Court of Criminal Appeal CITATION: Grant v R [2010] NSWCCA 44 HEARING DATE(S): 10 February 2010 JUDGMENT DATE: 16 March 2010 JUDGMENT OF: McClellan CJatCL at 1; Howie J at 68; Harrison J at 69 DECISION: Appeal dismissed. CATCHWORDS: CRIMINAL LAW - appeal - verdict unreasonable or unsupportable having regard to evidence - misdirection and non-direction - effect of misdirection and non-direction - review of evidence LEGISLATION CITED: Criminal Appeal Act 1912 Evidence Act 1995 CATEGORY: Principal judgment CASES CITED : R v Lawrence (1980) 1 NSWLR 122 R v Gregory [2002] NSWCCA 199 PARTIES: John Harvey Grant (Appellant) The Crown FILE NUMBER(S): CCA 2002/2315 COUNSEL: Unrepresented (Appellant) Nicole Noman (Crown) SOLICITORS: Unrepresented Director of Public Prosecutions (Crown) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2002/7008 LOWER COURT JUDICIAL OFFICER: Davidson AJ LOWER COURT DATE OF DECISION: 18 June 2004 IN THE COURT OF CRIMINAL APPEAL 2002/2315 McCLELLAN CJ at CL HOWIE J HARRISON J TUESDAY 16 MARCH 2010 GRANT, John Harvey v R Judgment 1 McCLELLAN CJ at CL: On 21 July 2001 the appellant stabbed his partner, Cheryl Mort, 37 times. She died later in hospital. The appellant was convicted after a trial with a jury of her murder. 2 At his trial the appellant accepted that he was responsible for killing the deceased but argued that he was not guilty of murder but rather of manslaughter on the grounds of provocation. Although not raised by the defence the trial judge also left an issue of self defence with the jury. 3 The appellant was represented by counsel at his trial but acted for himself in the appeal. He filed written submissions and elected not to appear in person before this Court. Accordingly the matter has been considered having regard to the written material from the appellant and from the Crown. Some of the appellant's document is difficult to understand but I am satisfied that I have identified the substantive arguments which he seeks to make. 4 The jury returned a verdict of guilty of murder on 6 May 2004. The appellant was sentenced on 18 June 2004 to a term of imprisonment of 16 years with a non-parole period of 11½ years. 5 The appellant did not file his notice of appeal until 5 June 2009. Accordingly, the appeal has been brought very substantially beyond the time provided by the Criminal Appeal Act 1912 (see s 3A(1)(b) and 3B(1)(a) of the Criminal Appeal Act). He explained the delay as being due to his failed attempts to obtain legal aid. The appellant placed before this Court material which confirms that he had sought legal aid to assist in an appeal which had been denied. 6 Although the Crown submitted that the delay should not be excused and leave to appeal should be refused, there was no submission that the Crown was prejudiced because of the delay in responding to the appeal. This Court has emphasised on previous occasions that where there is a considerable delay in lodging an appeal the Court will look carefully at whether leave to appeal should be granted (see R v Lawrence (1980) 1 NSWLR 122 at [148]; R v Gregory [2002] NSWCCA 199 at [41]). In the present case the delay is considerable. However, a person who has been convicted of murder will understandably seek out assistance in pursuing an appeal and will experience difficulties if that assistance is not available and they must prosecute the appeal themselves. Although the evidence in support of the application is not fulsome I am satisfied that leave should be granted in the present case. The facts 7 The appellant and the deceased commenced living together in February/March 2001. Their relationship had commenced the previous year. The deceased had four children from a previous relationship, some of whom lived with her from time to time. 8 Problems had arisen in the relationship between the appellant and the deceased, and the deceased had made plans to move out of their shared leased property and lease a separate property for herself and her children. She had intended to move out during the morning after the evening on which she was killed. The Crown case at trial was that the appellant had become possessive of the deceased and resented her desire to find separate accommodation. 9 The evidence at the trial indicated that in part the friction between the appellant and the deceased was heightened on social occasions when they had consumed alcohol. On the night of 20 July 2001 the appellant and the deceased were drinking at a hotel near their home. The deceased had consumed a considerable amount of alcohol. The autopsy report revealed a blood alcohol level of in excess of 0.23 mg/l. A number of the witnesses described the deceased as being in a "good mood". On the other hand, some of the witnesses described the appellant as having kept a "constant watch" on the deceased throughout the night. 10 The appellant and the deceased left the hotel at midnight and arrived home at about 12.15 am. The deceased's daughter, RM and her niece CM were in RM's bedroom when the appellant and the deceased arrived home. They could hear conversations which occurred between the appellant and the deceased in the kitchen. Their accounts of the conversations which they heard are not entirely consistent. 11 Notwithstanding the inconsistencies, there can be no doubt that the appellant was seeking to persuade the deceased to go to bed with him but the deceased did not wish to do this. At one point she told the deceased to "fuck off." There were arguments and the deceased accused the appellant of pulling her hair. Significantly the deceased was heard to ask the appellant what he had in his pocket. 12 When RM came to the kitchen she saw the appellant, who by this time had stabbed the deceased who was still alive, holding what she believed to be a screw driver. The deceased told RM to flee and she went across the street to seek the assistance from a neighbour and call the police. CM hid under the bed and also called the police. 13 As I have indicated the appellant stabbed the deceased 37 times mainly to her front in the torso. The appellant called directory assistance at 12.30am and then called the police. In that conversation he admitted to stabbing her a number of times. There are two telephone calls recorded from the appellant to the police at Camden Police Station, one at 12.36am and another at 12.45am. 14 The appellant gave evidence at his trial. His account of the events was at odds with the prosecution case. He said that the deceased had assaulted him, swore at him and armed herself with a knife. He said that he grabbed the knife from her. He claimed that thereafter he had no memory of killing the deceased or of the telephone calls he made to directory assistance to the police. Grounds of appeal 15 The appellant relies on four grounds of appeal Ground 1: Errors in the judge's summing up i. the jury was not properly instructed in respect as to the meaning of "the ordinary person in the position of the accused" test and "intention" under s 23(2)(b) of the Crimes Act 1900 for provocation; a. issue of "would" and "could"; b. "issue of the act causing death be proportionate"; and c. "intent". ii. Misdirection regarding conflict between evidence of expert opinion (Little and Hilton); In deciding which evidence to accept wrongful directions were given; and The test to be applied is totally inappropriate: "if you think there is a reasonable possibility … Taken in conjunction with all the other evidence may be correct. iii . Failure to give adequate directions in relation to evidence of Constable Forrester … "I've just killed my wife" or "I killed my wife". (This is a police verbal no notes, no recording, inconsistent with other facts (victim still alive), no corroboration etc). Also, the judge repeats this phrase 3 times in summing up. iv. Serious misdirection (double negative) and "directions are the law not statute" (thereby totally confusing the jury). v. Initial (confusing) directions and then re-directions as a consequence of not instructing the jury correctly led to admission by the judge to express opinion that the "jury is more confused as a consequence of re-directions". The Crown conceded this also. Ground 2: Misdirections by the judge to the jury. Ground 3: Unsafe/unsatisfactory verdict based on the inconsistent evidence of witnesses. Ground 4: Procedural irregularities relating to hearsay evidence Ground 1 and 2 16 The appellant made written submissions in relation to the five issues raised under ground 1 which all relate to aspects of the trial judge's summing up. No separate submissions were made in relation to ground 2. It would seem that the misdirections suggested by the appellant are those identified under ground 1. 17 Before the final addresses of counsel the trial judge indicated that he proposed to provide the jury with a written summary of the directions relevant to the issue of provocation. Counsel agreed with the form of that document which was later distributed to the jury. 18 The document was as follows: "PROVOCATION 1. This only arises if the Crown has proved all the other essential matters which it must prove to establish murder. 2. Two questions arise: (a) Has the Crown proved beyond reasonable doubt that the acts of the accused causing the death of the deceased were not done by him as the result of a loss of self-control induced by any conduct of the deceased (including grossly insulting words or gestures) towards or affecting the accused? If " Yes" , return a verdict of guilty of murder. If "No ", proceed to question (b). (b) Has the Crown proved beyond reasonable doubt that such conduct of the deceased could not have induced an ordinary person in the position of the accused to have so far lost self-control as to have formed an intention to kill or to inflict really serious bodily injury on the deceased? If " Yes ", return a verdict of guilty of murder. If " No ", return a verdict of not guilty of murder but guilty of manslaughter." 19 In the course of his summing up the trial judge indicated to the jury that the written directions were provided for their assistance but were not to take the place of his Honour's oral directions. On a number of occasions his Honour discussed with the jury the approach which they should take to the provocation issue. On one occasion he made a slip. Instead of explaining to the jury that the Crown was required to prove that the provocation by the deceased was such that the Crown has excluded a reasonable possibility that an ordinary person could have lost his self-control, his Honour said the following: "It is that if there may have been such a loss of self control in this particular accused person which was induced or may have been induced by the deceased's conduct has the Crown satisfied you beyond reasonable doubt that the acts and words of the deceased would not have induced an ordinary person in his position to have so far lost self control as to have formed an intention either to kill or to do really serious bodily harm to the deceased." 20 During a later adjournment defence counsel raised with the trial judge the fact that he had referred to "would" in the oral direction and asked that his Honour redirect the jury emphasising the word "could" or "might". When the jury returned the trial judge clarified his earlier direction in terms consistent with the written direction using the word "could". No further direction was sought. 21 The appellant's submission was concerned with the initial error made by his Honour. However, as I have indicated there were a number of other occasions in the course of the oral directions when his Honour correctly stated the relevant test. The correct test was also incorporated into the written directions. In these circumstances I am satisfied that the appellant's complaint is not justified. Although his Honour made a slip it was quickly corrected. The jury were under no misapprehension as to the test to be applied. This ground of appeal should be rejected. 22 In the course of the summing up defence counsel sought a direction with respect to the issue "reasonable proportion" between the act causing death and the conduct of the deceased. In response to this request the trial judge said: "For the purpose of determining whether an act or omission causing death was an act done under provocation, there is no rule of law that provocation is negatived if there was not a reasonable proportion between the act or omission causing death and the conduct of the deceased that may have induced that act or omission." 23 This was an appropriate direction and no further direction was sought by defence counsel. 24 After the jury had retired they forwarded a note to the trial judge seeking clarification of the direction in relation to the "ordinary person" aspect of provocation. They sought to have the relevant portions of the trial judge's summing up repeated. Following a discussion with counsel two portions of the summing up were identified and the transcript was provided to the jury. 25 The jury subsequently forwarded a note asking for assistance in relation to the concept of "have formed an intent". The issue was discussed with defence counsel and His Honour gave further directions to the jury in the following terms: "HIS HONOUR: Members of the jury, I have a request from you. It is in the following terms: 'The jury requests that the words 'intent' and the phrase 'to have formed an intention', as mentioned under the heading 2(b) in the provocation hand-out are more clearly defined for use during our deliberations.' In response to that question I direct you that an intention to kill or to inflict really serious bodily injury arises in two ways for the purposes of this trial. It arises, firstly, as one of the states of mind of the accused which the Crown must prove if it is to establish a case of murder. In that context, I have already directed you that an intention is, indeed, a state of mind. It refers to the consequences of the accused's conduct, in this case acts of stabbing the deceased, which inflicted injuries on her which, in turn, led to her death. The Crown may prove that the accused either intended that ultimate consequence of the acts, namely the death of the deceased. If it does so, it will have proved that he had an intention to kill, or the Crown may prove that the accused, even if he may not have intended the death of the deceased, nevertheless intended that as a consequence of his conduct in stabbing the deceased that she would suffer really serious bodily injury. The law regards the words 'intent', 'intention' and the phrase, 'forming an intention,' as being ordinary English words in common use in our community and which need not, nor should not, be given any further definition or explanation. As I endeavoured to explain to you in this context in summing-up the case, the Crown may prove one or other of these two states of mind or intentions by asking you to infer, or conclude, what was the accused's intention from what he actually did. You look, for example, at the number of stab wounds. Was there a weapon used? What was the nature of the weapon? How much force was used to inflict the wounds? Were they delivered to parts of the deceased's body under which were vital organs, such as arteries under the throat, or blood vessels in any event under the throat, or in the chest overlaying the heart? When you come, however, to consider paragraph 2(b) of this document, which is described as the provocation hand-out, you are not concerned with what the accused's intention was, or whether the accused formed an intention. You are concerned with a different question, namely, whether the Crown has proved beyond reasonable doubt that the deceased's conduct could not have induced or caused an ordinary person in the position of the accused to have so far lost his self control as to have formed an intention to kill or to inflict really serious bodily injury on the deceased. As I have already told you, you are concerned here in this context of paragraph 2(b), not with what the ordinary person could have been induced to do, but what intention the ordinary person could have formed. You focus not on what the accused did or what the ordinary person could or might have done, but on what intention the ordinary person could or might have formed. If the Crown does not prove beyond reasonable doubt that the ordinary person in the position of the accused could not have formed an intention either to kill or to do really serious bodily injury to the deceased, then your verdict should be not guilty of murder but guilty of manslaughter. If it does, then your verdict should be guilty of murder. Members of the jury, that is the response which I give to the question you asked. I would like you now to continue to deliberate. 26 No further direction was sought. 27 I have carefully perused his Honour's summing up. I am satisfied that his Honour provided the jury with appropriate assistance both in relation to the issue of provocation generally and specifically of intent. 28 In relation to the second limb of ground 1, evidence was given at the trial by Dr Little and Professor Hilton with respect to injuries occasioned to the appellant's hand at the time the deceased was stabbed. Each of the witnesses was accepted to be an expert. They had different opinions as to the mechanism by which the appellant sustained the cuts. 29 Dr Little, who was called by the Crown, was of the opinion that the injuries were consistent with having been caused by slippage or blade retraction whilst the appellant stabbed the deceased. Although she accepted that it was possible they were defensive wounds she did not favour this view. 30 Professor Hilton gave evidence that the injuries were consistent with the appellant's account of having attempted to disarm the deceased who was holding the knife. However, he did not exclude the possibility that the injuries had been caused whilst the appellant was using the knife. 31 The trial judge gave detailed directions in relation to the evidence of each of these witnesses. The view of each of them was clearly placed before the jury. 32 Later in the summing up the trial judge gave the jury general directions in relation to expert witnesses. (There were other experts who gave evidence in the course of the trial). He referred to the conflict between the experts as to the manner by which the appellant's injuries were occasioned. He reminded the jury that despite each party calling a witness, the onus of proof remained upon the Crown and they could not resolve the difference of opinion simply by preferring one expert as opposed to the other. His Honour directed the jury that if there was a reasonable possibility that taken with any other relevant evidence in their view Professor Hilton was correct, they should act upon that opinion. When referring to the other evidence his Honour had in contemplation the evidence of the appellant and his account of how the deceased came upon her injuries. 33 I can discern no error in his Honour's directions. The evidence of Dr Little and Professor Hilton was of relevance only to the injuries occasioned to the appellant, but obviously had to be understood in the context of the appellant's account of the relevant events. In my view there is no merit in this limb of the ground of appeal. 34 The appellant complains that the evidence of Constable Forrester, who spoke with the appellant on the telephone for which there was no written note, was in his terms a "verbal". The constable gave evidence of the appellant telling him at one point "I have just killed my wife" or "I killed my wife" when at the relevant time she was still alive. It was submitted that accordingly the appellant could not have said that he had killed her. 35 In my judgment this submission is without any substance. There is no reason for Constable Forrester to have invented the appellant's statement, and given that the appellant had stabbed the deceased 37 times, it would be quite likely that he would speak in terms of having killed her although she did not die until some little time later. In any event the true position was that he did kill her, as was conceded at the trial, and accordingly this evidence is of no significance to the jury's verdict. 36 During the course of his summing up the trial judge said to the jury when speaking of the issue of provocation: "I have put it that way because it is for the Crown to prove beyond reasonable doubt that the accused was not acting under provocation. If it does eliminate provocation, in a way in which I will indicate in a moment then the appropriate verdict is not guilty of murder but guilty of manslaughter." 37 Although no complaint was made by trial counsel and the appellant accepts that the direction "may have been technically and intellectually correct", complaint is now made that the direction was confusing. 38 I do not accept that the jury would have been confused. As I have indicated, the trial judge explained on a number of occasions the concept of provocation and provided the jury with written directions. 39 It is true as the appellant emphasised that during the course of discussions with counsel his Honour remarked that the jury may have been confused with respect to the concept of an ordinary person. His Honour said: "It is always a difficult question." However, these remarks were made in the course of a discussion in an endeavour to ensure that the jury were provided with adequate instruction in relation to a note which they sent to the judge in which they sought further guidance in relation to part 2(b) of the written directions. It was agreed with counsel that appropriate portions of the transcript of his Honour's summing up should be given to the jury and this was subsequently done. Thereafter there was no suggestion by counsel that the jury would not have understood the principles which they were required to apply. 40 I reject this limb of the ground of appeal. 41 It follows that in my view there is no merit in either ground 1 or 2 of the appeal. Ground 3 42 The appellant submitted that the evidence of CM, RM, Dr Westmore and himself was of particular significance when considering whether or not the jury's verdict was reasonable. As I have already indicated RM and CM were in RM's bedroom when the appellant and the deceased came home. Each gave evidence of their recollection of what they saw and heard. It is true that there were discrepancies in their account. None of those discrepancies in my opinion are of any significance. 43 CM gave evidence that RM had told her she saw the appellant stabbing her mother. RM denied this although there was another witness who said that RM had given him the same account. Because there was no issue at the trial regarding the fact that the appellant stabbed the deceased and was responsible for her death this conflict in the evidence is of no consequence. 44 In the course of the summing up the trial judge dealt in detail with the evidence of RM and CM. His Honour made plain that there were differences in their account, reminding the jury of the emphasis which defence counsel had placed upon these matters. His Honour said: "[RM] said that she was at home in the bedroom of the house with [CM], CM planning to stay overnight because she was going to help with the moving on the following day. [RM's] evidence was that she heard the voices of the deceased and the accused, obviously at a time after they had arrived home from the hotel. She said that while she could hear their voices, she could not hear what the voices said at that time at least, but she said that the deceased was not, to her perception, shouting in a loud way nor did she sound angry. [RM] described her voice as just normal, indeed she said as was the accused's. She said that there was a radio on in the kitchen and she did hear the accused say words to the effect, 'Go to bed and we will pack in the morning,' the deceased responding with words to the effect that she was not ready to go to bed. She said that was said by the accused a number of times, she estimated some 10 to 12 times, and that he seemed to be getting upset. The deceased, she said, she heard saying that and repeating that she was not ready to go to bed. She said after a while the deceased had sounded a bit more annoyed than at the beginning but not, she said, loud and angry. She said that the accused's voice was getting louder. She said she heard the deceased say words to the effect, 'Let go of my hair,' and the accused saying, 'Let's go to bed, we will pack in the morning.' She heard the deceased say 'no' and the noise of what she took to be a drawer opening and what sounded to her like some jingling of knifes and forks. She said she also heard the accused say, 'I'll make your life a living misery.' This, she said, was said before she heard the sound of what she took to be a drawer opening and the words were coming from the direction of the kitchen. She also heard she said the deceased say, 'What have you got in your pocket?' and the accused responding again with words to the effect, 'Let's go to bed, get up and pack in the morning.' She said she had got up and had stood at the closed door when she heard a scream and ran out. She said she went into what she described as a rumpus room, which is described in the sketch plan as a lounge room, and she saw the accused standing and the deceased face down. The accused had some long trousers on, but she said he was not wearing a top and he had some what appeared to be blood on his abdomen. In his right hand he had something which she then took to be a screwdriver. She said she had yelled, 'Stop, John, she's got four kids.' The deceased then looked at her, lifted herself up, and said words to the effect, 'And I love them all; run,' and that is what she did; she ran. She said she ran across to a neighbour, Mr Igor Darotka. She was cross-examined as to what she had said to Mr Darotka and his evidence was read onto the record of the trial and it is material, although he was not called personally into this courtroom, which you may regard to as evidence along with the other evidence adduced. He said, according to that statement, that it was at about 12.30 am when [RM] had come to his house and said words to the effect that her mother had been stabbed and asked him to call the police. He rang the Triple-O number. He said that she also said that her mother was stabbed in front of her, 'I saw him do it.' Of course, you have heard Mr Hogan of counsel asking you to compare that, if you accept the evidence of Mr Darotka, with the sworn evidence of the witness, [RM], which did not include any suggestion that she saw the accused stab the deceased. [CM] said in evidence that she had gone to bed some time after midnight and she heard the deceased and the accused come home. She heard the car door, she said, out the front of the house. She said that a radio was turned on, just loud enough, she said, for her to hear and she could hear some of what the accused and the deceased said. She too, however, agreed that she did not hear all of what was said. She did hear, however, the accused say words to the effect, 'turn the radio off and go to bed and make good fun.' She too said she also heard the accused use words to the effect, 'I'll make your life a living misery.' [CM] said that when that was said, when those words were said, she heard the deceased say to the accused, 'Fuck off.' Again, you will remember the submissions made to you by Mr Hogan of counsel asking you to compare that with the evidence of [RM], who gave no evidence of the deceased having used any language of that kind. [CM] said that it was when the accused, according to what she heard, had told her to go to bed and to turn the music off, that she heard that phrase being used by the deceased. She said that when he had asked the deceased to turn the music off and come to bed, or words to that effect, he had a raised voice and when she said, 'fuck off,' in response, she also had a raised voice. She said the music stayed on. [CM] said that the next thing she heard was the deceased screaming. But, before that, she had heard the deceased ask interrogatively, 'What's in your pocket?' She said she heard that two or three times and the scream to which she referred came shortly after. It was also after she had used that expression, 'fuck off,' and he had said, according to this witness, 'I'm going to make your life a living misery.' [CM] said that she had got under the bed and when she came out from under the bed she heard the shower running and the accused saying words to the effect, 'Come on, [CM], I'll give you a shower,' although she said she was under the bed when she had heard that. She said that [RM] had told her, and this was after the ambulance had arrived at the house, words to the effect, 'I saw John stab Mum with a screwdriver. She was on her knees and she told me to run.' Once again, you will recall that was a subject matter of submissions made by counsel for the accused to the effect that you would treat [RM's] evidence as unreliable because that was not consistent with the evidence which she gave in this courtroom." 45 Given the trauma of the situation it is not surprising that the account of the girls will differ. However, as this extract from the summing up confirms, those differences were made plain to the jury. They did not in my view weaken the Crown case. 46 In the course of his written submissions in relation to ground 3 the appellant again referred to the evidence of Professor Hilton and Dr Little in the context of the final address by his trial counsel. As I have already indicated in his evidence the appellant said that the deceased had a knife which he grabbed and he felt it cutting into his hand. He said that he then used the knife to stab the deceased. The appellant's case at trial was that the injuries he sustained were defensive injuries. The Crown case was that the appellant had the knife and was injured when he was stabbing the deceased. The Crown case was supported by the evidence of Dr Little. 47 The trial judge addressed this issue in the course of his summing up and there can be no suggestion that the jury were not aware of the dispute between the experts and the approach which it should take to the resolution of this issue. As I have indicated and should emphasise, defence counsel did not raise the issue of self-defence and rested the appellant's case on the issue of provocation. It was the trial judge who, having regard to the appellant's evidence, decided that self-defence should be left to the jury. 48 During the course of his evidence the appellant told the jury of the relationship he had with the deceased. It obviously had some difficulties. The appellant said that the deceased had difficulties with alcohol and there were problems arising from one of her daughter's drug habit. He also told of difficulties in the relationship which manifested themselves in the deceased's verbal abuse of the appellant. The appellant emphasised that this evidence was consistent with his allegation that it was the deceased who was the aggressor and had attacked him with the knife, provoking him to lose his self-control and kill her. 49 There is no doubt that the evidence which could support the appellant's case was before the jury and was adequately summarised by the trial judge as well as discussed by counsel. The jury had to consider whether or not it should reject the appellant's account. The verdict makes plain that it did so. 50 The appellant's reference to the evidence of Dr Westmore, a psychiatrist, was concerned with the appellant's evidence that he could not remember stabbing the deceased. Although he said he remembered the events up to taking the knife off her he could not give a coherent account of the events which immediately followed. Dr Westmore said that this was consistent with a state of disassociative amnesia which can occur at times of high stress. The only substantial significance of his evidence was to support the appellant's credit. 51 I have carefully reviewed the entirety of the evidence including the complete transcript of the trial. I am not persuaded that there is any substance in the appellant's submission that the verdict was unreasonable. To my mind this was a compelling Crown case. Both the deceased and the appellant had been drinking on the relevant evening and, having arrived home, disagreed about whether they should retire to bed. The appellant was aware that the deceased was about to leave their home. I am satisfied that it was he, rather than the deceased, who had the knife. His account that the deceased attacked him and he then took possession of the knife and repeatedly stabbed her is not credible. The jury was entitled to accept the evidence of RM that she heard the deceased say to the appellant "let go of my hair" and when the appellant said "let's go to bed, we'll pack in the morning" the deceased responded by saying "no." They were also entitled to accept that the appellant had said to the deceased "I'll make your life a living misery." 52 The evidence of RM to the effect that she heard the deceased say "What have you got in your pocket?" is of particular significance. The jury were entitled to accept that this was a reference to the appellant having a knife. 53 Although CM's evidence was not entirely consistent with RM, she does remember the appellant saying to the deceased "I'll make your life a living misery." She also recalls the deceased saying to the appellant "fuck off." This was apparently said in a raised voice. Again of particular significance is the fact that CM recalls the deceased asking the appellant "what's in your pocket?" She said she heard that question asked two or three times which was shortly followed by a scream. 54 Faced with this evidence the appellant's account that the deceased was the aggressor is not credible and to my mind the jury rightly rejected it. I would dismiss ground 3 of the appeal. Ground 4 55 The appellant identified two issues under this ground. The first related to statements allegedly made by the deceased in relation to her relationship with the appellant. The second relates to comments made by the appellant to the police after the incident. 56 During the trial evidence was called by both the Crown and the defence relating to observations made by witnesses of the relationship between the deceased and the appellant. The witnesses were variously work colleagues, family and friends. 57 The issue was discussed by the trial judge with counsel before the evidence was called. Being accounts of the relevant events given by the deceased or appellant to others of the relationship the evidence was hearsay and the trial judge considered with counsel the appropriate direction to be given to the jury. 58 In the course of the trial the trial judge gave the jury the directions in relation to this evidence in terms consistent with the discussion with counsel. Before giving the direction defence counsel indicated that he was "quite happy" with the proposed direction. 59 The direction was in conventional terms and was repeated by his Honour during the course of his summing up. The jury were told why the evidence may be unreliable and that they should approach it with caution. No further direction was sought. To my mind his Honour dealt with this issue in an appropriate manner. 60 The appellant raised particular concerns with respect to the evidence from the police officers. The Crown called three officers who gave evidence of conversations with the appellant after he had stabbed the deceased. As I have already indicated the appellant called Camden police station and spoke with Constable Forrester on two occasions. It was in these conversations that the appellant stated that the deceased was dead but later stated that she was alive. Constable Croft attended the premises and gave evidence of a conversation with the appellant in which he said: "He couldn't take it any more." This evidence was confirmed by Constable McCrudden. 61 The only issue raised by the appellant at his trial was that of provocation. He did not suggest that he had not killed the deceased. The evidence of Constable Croft as to the comments made at the scene by the appellant was capable of supporting his defence. 62 At the conclusion of the evidence the trial judge discussed the evidence of Constable Croft with counsel. The Crown prosecutor indicated that it had been led because he was of the view that defence counsel perceived it to assist the defence case. Defence counsel raised the question of a hearsay warning pursuant to s 165 of the Evidence Act and the issue was discussed. 63 During the course of his summing up his Honour referred to the evidence of the police officers and said "at this stage so far as the evidence of Constable Forrester and Croft are concerned I want to give you a number of cautionary directions of law." His Honour told the jury that the evidence "may be unreliable" as it relies upon the recollection of the witnesses and that the appellant had been involved in a "highly emotive incident" and had consumed alcohol. The jury were warned that they should exercise caution before accepting the evidence and in determining the weight to be given to it. The trial judge did remind the jury that the evidence was not disputed and was largely confirmed by other evidence. 64 I perceive no difficulty with the course which his Honour took. In any event, as the Crown submitted, the evidence was capable of assisting the appellant's case although it was likely to have been considered to be neutral by the jury. Other matters 65 Apart from the grounds of appeal the appellant in his written submissions referred to further matters under the heading "disadvantages to the accused during trial." His written submission referred to complaints made by defence counsel in relation to the availability of subpoena material, some exhibits and requests by counsel to be able to seek instructions from the appellant. He also expressed a concern that Dr Westmore gave his evidence without interviewing the appellant. 66 I have perused the transcript. None of the matters referred to by the appellant would suggest that the trial occasioned a miscarriage of justice. It is true that there were some problems in the course of the trial but none of these were unusual in a trial of this nature. All of the difficulties were resolved and trial counsel did not complain that his client had for that reason not received a fair trial. Resolution of the appeal 67 In my judgment none of the grounds of appeal are made out and the appeal should be dismissed. 68 HOWIE J: I agree with McClellan CJ at CL. 69 HARRISON 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.