Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Ziha v R [2013] NSWCCA 27 Hearing dates: 23 November 2012 Decision date: 21 February 2013 Before: Macfarlan JA at [1] Fullerton J at [93] Campbell J at [94] Decision: (1) The time for the appellant to appeal against his conviction is extended to enable his purported appeal to be brought. (2) The appeal against conviction is dismissed. (3) Leave to appeal against sentence is refused. Catchwords: CRIMINAL LAW - murder charge - defence of substantial impairment of capacity by abnormality of mind - s 23A Crimes Act 1900 - no issue of principle CRIMINAL LAW - murder charge - accused admitted to killing of estranged wife's lover - whether issue of provocation should have been left to jury - issue of provocation not raised by accused at trial - s 23 Crimes Act 1900 - whether ordinary person in position of appellant might have so far lost self-control as to have formed an intent to kill CRIMINAL LAW - sentence appeal - murder - 18 year non-parole period with 6 year balance of term - leave to appeal refused Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Green v R [1997] HCA 50; 191 CLR 334 Johnson v R [1976] HCA 44; 136 CLR 619 Pollock v R [2010] HCA 35; 242 CLR 233 R v Whitworth [1989] 1 Qd R 437; 31 A Crim R 453 SKA v R [2011] HCA 13; 243 CLR 400 Stingel v R [1990] HCA 61; 171 CLR 312 at 332 Van Den Hoek v R [1986] HCA 76; 161 CLR 158 Category: Principal judgment Parties: Gabor Ziha (Appellant) Regina (Respondent) Representation: Counsel: In person (Appellant) R Herps (Respondent) Solicitors: In person (Appellant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2007/1954 Decision under appeal Jurisdiction: 9111 Citation: R v Gabor Ziha [2008] NSWSC 145 Date of Decision: 2008-02-29 00:00:00 Before: Barr J File Number(s): 2007/1954 Judgment 1MACFARLAN JA: After a trial in the Supreme Court in February 2008 before a judge and jury, the appellant was convicted of murdering Mr Barry Corbett on 1 August 2006 (contrary to s 18(1)(a) of the Crimes Act 1900), and of maliciously wounding Mrs Marija Ziha, his wife, on the same date (contrary to s 35(1)(a) of the Crimes Act). The appellant had pleaded not guilty to the murder of Mr Corbett but guilty of his manslaughter. He was represented at the trial by counsel and conducted a defence to the murder charge of "substantial impairment by abnormality of mind" (s 23A of the Crimes Act). He had pleaded not guilty to the charge of malicious wounding of his wife, stating that it "was accidental, and there was no intention or malice". 2The appellant was unrepresented on his appeal against his convictions. In support of the appeal he lodged closely-typed written submissions exceeding 100 pages in length and addressed the Court orally. Whilst some aspects of his submissions do not have sufficient merit to warrant discussion in this judgment, all have been considered. 3The appeal is out of time but I would grant the appellant leave to appeal as he has given some explanation for his delay and has raised some points that warrant consideration. He professes not to be seeking to appeal against his sentences but some of his submissions raise issues concerning the sentences and I have taken the view that it is appropriate to deal with them on their merits. 4Before dealing with the appellant's grounds of appeal, it is necessary to refer briefly to the factual circumstances giving rise to his convictions. Those to which I refer under the next heading were not in dispute at the trial. FACTUAL CIRCUMSTANCES 5The appellant and Mrs Corbett (the name by which Mrs Ziha came to be known) were born in Yugoslavia. They married there in 1975. After having two children, they migrated to Australia in 1989. By 2005 their relationship had been strained for a number of years. 6In December 2005, the appellant attempted to commit suicide and, after Christmas that year, Mrs Corbett, following a number of prior threats to do so, moved out of the family home at Baulkham Hills. She moved to a flat in Parramatta but visited the family home from time to time to maintain contact with her children. At or prior to this time Mrs Corbett commenced a relationship with Mr Corbett, which continued until his death. The appellant did not meet Mr Corbett but knew and disapproved of the relationship. At some stage he secretly copied a set of keys that his son had to the Parramatta flat where Mrs Corbett lived. He used the keys to visit the flat uninvited, whilst Mrs Corbett was away. In the main bedroom he noticed a Cosmopolitan magazine and disapproved of its contents, regarding it as pornographic. 7On 1 August 2006, the eve of the appellant and Mrs Corbett's wedding anniversary, Mr Corbett visited Mrs Corbett at the Parramatta flat. They went to bed early, turning the lights off by 9.30 pm. During the evening, the appellant left his Baulkham Hills home, telling his children that he was going to buy petrol and dog food. After buying petrol, he drove to the Parramatta flat where he observed that Mrs Corbett's car was parked in the street whilst Mr Corbett's was parked in Mrs Corbett's designated parking spot. 8Seeing that the flat was in darkness, he returned to his car and took out a kitchen knife, gloves, a torch and the keys to the flat. Putting on the gloves, he entered the front door of the building using the keys, turned on the torch and ultimately entered the main bedroom of the flat. 9On his entry, Mr Corbett awoke. The appellant attacked him with the knife, inflicting more than 30 injuries, resulting in Mr Corbett's death. Mrs Corbett awoke during the attack and tried to push the appellant away and, in the course of doing so, received a knife wound to the thigh. She ran out of the building to summon help. The appellant cut off Mr Corbett's penis and placed it in the bedside drawer on top of the Cosmopolitan magazine. Leaving the house, he drove to the Parramatta River and threw the knife and keys into it. Returning home, he washed his clothes and waited for the police. He was arrested early on 2 August 2006. RELEVANT STATUTORY PROVISIONS 10Although the issue of provocation was not raised at the trial, it is relevant to the appeal as the appellant contends that the trial judge should have left it to the jury for its consideration. 11Sections 23 and 23A of the Crimes Act, dealing with provocation and the defence of "substantial impairment by abnormality of mind", are relevantly in the following terms: "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. 23A Substantial impairment by abnormality of mind (1) A person who would otherwise be guilty of murder is not to be convicted of murder if: (a) at the time of the acts or omissions causing the death concerned, the person's capacity to understand events, or to judge whether the person's actions were right or wrong, or to control himself or herself, was substantially impaired by an abnormality of mind arising from an underlying condition, and (b) the impairment was so substantial as to warrant liability for murder being reduced to manslaughter. (2) For the purposes of subsection (1) (b), evidence of an opinion that an impairment was so substantial as to warrant liability for murder being reduced to manslaughter is not admissible. ... (4) The onus is on the person accused to prove that he or she is not liable to be convicted of murder by virtue of this section. (5) A person who but for this section would be liable, whether as principal or accessory, to be convicted of murder is to be convicted of manslaughter instead. ... (8) In this section: underlying condition means a pre-existing mental or physiological condition, other than a condition of a transitory kind." THE CROWN CASE AT THE TRIAL 12Having referred above to various factual circumstances not in contention, it is necessary for the purposes of the appeal to refer only to the following limited aspects of the evidence called by the Crown. Mrs Corbett's evidence 13Mrs Corbett described the appellant as a very angry man but identified only two occasions (in 1993 and 1995) since their arrival in Australia on which he had been physically violent. She said that he was obsessed with the origins of the Hungarian language and this was an all-consuming passion, leading him to reject social activities. She said that he was a loner, with only one friend. 14She said that Mr Corbett was spoken of a number of times in conversations between herself and the appellant. In one, the appellant told her, "I know what car your guy is driving ... and I can tell you the registration number". On a couple of occasions when Mr Corbett was staying with Mrs Corbett at the Parramatta flat, the appellant sent Mrs Corbett SMS messages, one being to the effect: "why are you doing this to me, do you hate me so much, I know somebody is with you". 15She said that in March 2006, the appellant told her: "I have plans and many people will be sad, it was all your fault ...". At Easter, he yelled at her: "Oh you are such a hypocrite, you have desecrated Easter because you are ringing me from your lover's house ... you are such a sinner and you don't know yet what you've done, you will see". On a number of occasions the appellant said to her: "Oh, you are having hot sex right in front of my eyes". 16She also said that on an occasion in March 2006, the appellant said to her: "Oh, people are such hypocrites. You steal a loaf of bread and you go to gaol for it and you steal another man's wife and nothing happens to you". The appellant's son's evidence 17The appellant's son gave evidence that his father said to him that "she is leaving me because he is rich" and "because he has a large dick", and that his father said he had seen Mr Corbett's car parked in front of Mrs Corbett's flat. The son said that on one occasion he asked his father whether he was "staking out" his mother's flat, to which the appellant said that "Yes, he has been seeing what they are doing" and they are "making hot sex in front of his very eyes". On another occasion the appellant said to him that he planned to spend the rest of his life in gaol and that it was "a good retirement plan" for him. The son also said that, whilst at the beach one day, the appellant asked whether he knew where he could get a gun. THE APPELLANT'S ACCOUNTS OF EVENTS First account given to Dr Bruce Westmore 18At the request of the appellant's lawyers, Dr Bruce Westmore, a forensic psychiatrist, interviewed the appellant on 4 April 2007. Dr Westmore was called to give evidence at the trial by the Crown. 19Dr Westmore's evidence of what the appellant said to him included the following: "Q. You asked him what happened leading up to the incident and he responded by saying 'why did I kill him?'? A. Yes. Q. And you said 'yes'. And he then went on to say, 'I went to see the house of my wife, it is a dead-end street, I turned my car off, I noticed my wife's car was on the street and another car was in the driveway. I did recognise that car, a metallic yellow.' He continued, 'I wasn't surprised, because I knew that this was Maria's boyfriend's car. I saw that the lights were off. That puzzled me. I went to the back to check the sitting room. All the lights were off at 9.30.' He then said in his history that he gave to you, 'that triggered me off, that is what I could not take'. You asked Mr Ziha what he did and he said to you, 'at that moment, I was flowed with emotions. I decided to do whatever I had to do'. He then told you, Dr Westmore, that he returned to his vehicle and, in his words, 'found what was necessary. I retrieved the knife from my bag which I normally go to work with'. He told you that he also took a glove and a torch from his car. He told you, 'I had a set of keys, that was also in my bag'. He then told you, Dr Westmore, 'I headed to the entrance. I said to myself, 'if I go forward there is no way back'. I couldn't stop it, I knew what I was doing, I was conscious of what I was doing. I just couldn't listen to myself. I wanted to take off the old man's tool'. Is that correct? A. Yes. Q. You asked him, Dr Westmore, was he referring to the deceased's penis, and the accused said 'yes'. You asked him to confirm that he had in fact done that, and the accused said 'yes I did that. That was the reason to enter the house'. Is that correct? A. Yes, he said this was the reason. Q. I beg your pardon, 'this was the reason to enter the house'. You asked him if he had been angry at the time and the accused told you, 'I just know I could not control myself. It is easy to call it anger. I cannot describe it. I just know I was uncontrollable and I was frightened'" (Transcript p 280). The appellant's second account to Dr Westmore 20After receiving a copy of a report of Dr Olav Nielssen, forensic psychiatrist, and other documents, Dr Westmore interviewed the appellant again on 15 January 2008. Dr Westmore's evidence of what the appellant told him at this interview included the following: "Q. ... You asked Mr Ziha how his mood had been in the weeks leading up to the homicide. He said to you, 'I can tell you in months, really miserable. I was on the bottom ...'? A. Yes. ... Q. You actually asked what did he feel when he saw another car parked at his wife's house. He said 'initially, I wasn't really surprised, because I knew Marija had another boyfriend and I was tolerating that in the past'. You asked him what was different on this particular night, and he said, 'the light was off, and I knew it was not just a friendly visit, and that was the difference'. You asked him directly was he jealous, and he said, 'no, because I knew that connection, and I hoped I would overcome this'. He then went on to say that his mother-in-law had told him that Marija would come back to him, and he said 'that is what I deeply believed. And I wouldn't do this stupid thing, because I would lose Marija forever. Not even to meet the man or punch his nose because that would work against me. I tried to be diplomatic with Marija'. He said that to you? A. Yes" (Transcript pp 290, 291). The appellant's evidence at trial 21The appellant's evidence concerning the evening of 1 August 2006 included the following: "Q. What did you do then? A. Then I parked my car in front of the building and I walked down the pathway just to check if I'm right or not, you know, is that Barry or not? So it was that; that was gold Mercedes, it was Barry's car. Q, What did you do then? A. Then I looked back to the - to the house and I - I saw there are no lights anywhere, not in the bedroom, not in the kitchen, so I said okay. ... Q. What happened? A. Then I thought that maybe they are watching TV so I'll go back onto the back of the building. So I checked that window, that was in darkness, but I was standing there for a while to see if I can see these flashes from the television, you know, from the TV set but they having no flashes so I concluded that they are not watching TV. Q. How did you feel? A. Oh, that I think I - I saw the building like it was built from a glass, not from bricks but from glass. I saw everything through the walls and I saw what my imagination dictated to see. I saw them together. Q. Doing what? A. Well, doing fun. Q. How did you feel? A. I was really upset with that, I was really upset and I thought that this is - this smacking my face, you know slapping my face, my face all the time. Q. Had you ever felt that way before? A. No, no, I was - I was - I lost my control then, you know. I really - I can't remember being in that mood ever ever before and not after. Q. What did you do? A. Then I walked back to the car and opened the passenger side door and then I grabbed the torch which was in the car, I grabbed the gloves I grabbed from the car and I grabbed my bag. I opened my bag, I strode [sic] out the contents. I picked up the keys, and I picked up the knife, it was the right one there, I picked up that knife. ... Q. When you got the gloves and the knife and the torch what did you do? A. I undone the lock of the entrance to the building first and then unlocked - undone the lock of the - Marija's flat and then I put my hands on to the handle and that was when I went, I really tried not to go any further, and I told myself you don't want to do that, if you go now in there's no way back, there is no return. I clearly remember I tried seriously not to enter there. Q. How were you feeling? A. How I did feel that - I feel empty. I was really empty at that time. I felt like - like I am not myself, that there are two people fighting over me and I tried to depict that one in the prison later on in the art classes. I tried to depict that emotion, how I felt that night" (Transcript pp 291, 342, 343, 346, 347). The appellant's recorded interview 22There is nothing in the record of the appellant's ERISP to which reference need be made. THE PSYCHIATRIC EVIDENCE 23Ultimately, both Dr Westmore, who was called by the Crown, and Dr Nielssen, who was called by the appellant, agreed that the appellant suffered from depression which constituted "an abnormality of mind arising from an underlying condition" (see s 23A(1)(b)). Their views on the further question, relevant to s 23A(1)(a), of whether that abnormality of mind substantially impaired the appellant's capacity "to judge whether [his] actions were right or wrong, or to control himself" were to the following effect. Dr Westmore's first assessment 24Dr Westmore referred to the view that he held after the first interview with the appellant as follows: "Q. At the time you examined him he was depressed, and you believed that while it was likely he was suffering some depression at the time of the incident, his principal emotional drives were those of anger arising from jealousy. Whilst he did refer to losing control, you believe that that occurred again in the context of anger, his decision to kill the deceased was made some time before he entered the house and the genital mutilation is also consistent with his feelings of jealousy and rage. Is that correct? A. That's correct" (Transcript pp 287 - 8). Dr Nielssen's opinion 25Dr Nielssen expressed the view that the appellant's relevant capacity was substantially impaired by his abnormality of mind. Dr Westmore's further assessment 26Dr Westmore gave the following evidence concerning his 2008 interview of the appellant: "Q. You asked him whether he had been seeing a general practitioner or psychiatrist at the time of the homicide and he told you that he had been in hospital in December 2005, and sent to a psychiatric ward, but he did not want to be there. Taking that history, did you develop any opinion based on what we have just gone through? A. Well, the importance of that from my perspective was we have no objective medical assessment of his mental state or mood state during that period leading up to the incident. It is not uncommon for people not to want to see psychiatrists, or to take psychotropic medication. Putting that aside, but we have lost the objective assessment of his mood, the quality and severity of his depression during those two months, which make us more reliant on the history of other people, and his own history. ... Q. Now when [the appellant] was discussing with you the issues that he raised with your April 2007 report, he went on to say 'there was no premeditation' he also told you that he wanted to plead guilty to manslaughter and he told you that he could not accept that he was willing. He then went on to say: 'I was willing for 30 seconds but then went away but it was too late'. Now, doctor did you explore that with the accused? A. Not any further than that. Q. What did you make of that? A. If you note there is a significant difference between the two histories. If you give me the history that I got on the second occasion on the first occasion my conclusions about him might have been different. The first history is more consistent with an angry, jealous revengeful man. The second history is more consistent with a man who is hopelessly lost and depressed. You can see there is a different history there. ... Q. Now based on your re-examination of him on 15 January 2008, you formed a view. Can you tell the court what that is? A. Following the second assessment? Q. Yes? A. Yes. In summary the case is quite difficult from a psychiatric perspective. The man was, in my mind, no doubt depressed at the time this incident occurred and he had had a past history of depression. There is some history to indicate that he was probably significantly depressed leading up to the incident even though he had not seen doctors or psychiatrists. The two competing issues are whether he is an angry over-controlled man who acted because of jealousy and rage or whether he was a very depressed man who lost control because on the night before his anniversary, he went round to his wife's residence and found her in a house with a man with the lights off which to him implied there was sexual activity on the night before his anniversary. If there isn't compelling evidence that he was a man who was habitually violent, pathologically jealous, then my view has moved from his action being driven by anger primarily and jealousy primarily, although they were present because I think that was present in the genital mutilation but the emphasis in my mind has moved to this being a man who, in the context of his obsessive preoccupation personality and his observation of the relationship and with the depression, that he did lose control because of the significance of the moment for him being the anniversary and in the context of his depression. ... Q. Now doctor if I could just read you some evidence that has been led before the Court here. Generally speaking one area of the evidence is that a discussion of his son [sic] ... that Mr Barry Corbett was rich and when he was told that that wasn't the case. Does that have any bearing on what you have been talking about? A. That is a factor that might be put onto the jealousy and rage side of the equation I mentioned earlier. Q. Does it tip more over on the jealousy and rage rather than the depression being the overriding factor? A. Not absolutely but I think it is important. You see I think this behaviour was generated by jealousy and rage as well as depression. That is why this case is so complicated. It is not simply a homicide that occurred in the context of depression. The genital mutilation is not something that occurs when people are simply depressed. To cut off people's genitals you have to have other emotions present and that statement reinforces it. Powerful feelings of anger and jealousy must be underlying those behaviours. ... Q. Is it possible that this is just the action of a man who is consumed by his rage more than anything else? ... A. It is possible. That was my conclusion after the first assessment of him because of his presentation, not so much because of his history. My view shifted, I have to say, after the second examination. It is possible that anger and jealousy were the driving force but I think on balance had it not been the anniversary, had the deceased not been there and had he not been depressed, it is unlikely the homicide would have occurred" (Transcript pp 291, 293, 296, 297, 298, 299). GROUND OF APPEAL 1.1: SUBSTANTIAL IMPAIRMENT OF CAPACITY DEFENCE 27This ground of appeal is expressed in six sub-grounds appearing under the heading "Substantial Impairment". The 27 pages of submissions in support of this ground conclude with the following: "The Crown's argument of 'premeditated murder' was based on the apparent awareness of the appellant at the time of the fatal incident therefore can not negate [sic] the defence case of substantially impaired capacity to understand, or to control the event. In the present case the evidence raised doubt whether it is safe to rely on inferences which would be drawn about the volition and intention of a reasonable man based on fact what he did, and a properly directed jury would have no difficulty entertaining a reasonable doubt about matters which the Crown had to prove". 28Notwithstanding this reference to the defence of substantial impairment of capacity, all but one of the sub-grounds of appeal concern whether the appellant had an intent to kill Mr Corbett, which is an element of the offence of murder, but not of the defence of substantial impairment. If by this ground of appeal and supporting submissions the appellant seeks to assert that the Crown did not establish beyond reasonable doubt the elements of murder, it is difficult to see why the submissions appear under the heading "Substantial Impairment" and the submissions generally conclude with a contention that a verdict of manslaughter should be substituted for the verdict of murder, not that the Court should acquit the appellant. A claim for an acquittal would be baseless because (subject to the defences of substantial impairment of capacity and provocation) it is clear, on any view of the evidence, that the prosecution proved the elements of murder beyond reasonable doubt. As well, the appellant pleaded guilty to the manslaughter charge. 29In his Summing-Up, the trial judge told the jury that it was common ground that the accused did the act that caused the death of the deceased with the state of mind necessary for murder (Summing-Up p 13). Consistently with this, the appellant's counsel had commenced his final address to the jury as follows: "Ladies and gentlemen, it's now my opportunity to address you in relation to aspects of the case and make submissions in relation to what I will, in shorthand, describe as the defence of substantial impairment. The reason I say it in that way is that it is patently self-obvious that no dispute has been made in this court as to those elements which the Crown needs to establish in their case". 30In these circumstances, it seems that the better view is that the appellant's submissions on this ground are directed to the question of whether his actions were premeditated in a way that was inconsistent with incapacity to judge whether his actions were right or wrong and to control himself, and therefore inconsistent with his substantial impairment defence. This view is supported by the following appearing early in the appellant's submissions on this ground: "It is obvious that the trial judge directed the jury to use the 'direct evidence' of the appellant's account to Dr Westmore in considering whether the appellant did have a guilty mind necessary for murder, and in this way forced the jury to use the 'ordinary person' test (objective test applicable in cases where the state of mind is not impaired by abnormality arising from underlying condition). Whether this approach in directing the jury was correct or contrary to established legal principles for cases of this kind, is of crucial importance and will be discussed later in this appeal in Ground Two. In the following paragraphs the discussion will be limited to the Crown's assertion that the evidence points towards premeditated murder" ([27]). 31Seen in this way, and subject to what follows, the submissions on this ground are concerned with matters that may have been relevant to put to the jury, as the tribunal of fact. However, they do not in my view identify any basis upon which the jury verdicts could be challenged. 32The first point that needs to be added is that the appellant's submissions erroneously assert, apparently in relation to s 23A(1)(a) of the Crimes Act, that the Crown contended that the relevant test was objective rather than subjective. That was not the case. 33Secondly, the appellant erroneously asserts that the Crown must prove beyond reasonable doubt that the defence of substantial impairment of capacity has not been established. This is contrary to s 23A(4) which states that the onus is on the accused. 34Thirdly, the appellant refers to "the unanimous medical evidence". For the reasons given below at [65], this is not a fair description of that evidence. 35Fourthly, the submissions on this ground embody an assertion that the verdicts are unsafe or unsatisfactory and that the appellant's conviction should be quashed (see s 6 of the Criminal Appeal Act 1912; SKA v R [2011] HCA 13; 243 CLR 400). For the reasons given in this judgment, both earlier and below, I do not consider that the appellant has raised any matter that casts doubt upon the jury's verdicts. Having conducted an independent assessment of the evidence, my view is that the verdicts were well open to the jury, that the Crown proved its case against the appellant beyond reasonable doubt and that the appellant failing to establish his defence of substantial impairment of capacity on the balance of probabilities. GROUND OF APPEAL [1.2]: PROVOCATION 36If a person charged with murder acted under provocation as defined in s 23 of the Crimes Act, he or she is entitled to be acquitted of murder but, if the elements of a murder charge are otherwise established, is guilty of manslaughter (s 23(1)). Where there is evidence of provocation, the onus is on the Crown to prove beyond reasonable doubt that the act or omission causing death was not an act done or omitted under provocation (s 23(4); Stingel v R [1990] HCA 61; 171 CLR 312 at 332 - 333). 37Provocation was not raised at the trial by the appellant's counsel but if there was evidence of provocation fit to be left to the jury, it was the duty of the judge to instruct the jury that it was open, on that basis, to it to bring in a verdict of manslaughter (Van Den Hoek v R [1986] HCA 76; 161 CLR 158 at 161 - 162; Stingel at 334). The question for the trial judge to consider in this context is: "Whether, on the version of events most favourable to the accused which is suggested by material in the evidence, a jury acting reasonably might fail to be satisfied beyond reasonable doubt that the killing was unprovoked in the relevant sense" (ibid). 38In these circumstances, this Court must consider whether there was sufficient evidence of provocation, as defined in s 23 of the Crimes Act, to require the judge to have left the issue to the jury. 39The starting point is to consider the nature and gravity of "any conduct of the deceased (including grossly insulting words or gestures) towards or affecting the accused" (s 23(2)). 40The appellant's written submissions describe the alleged provocative conduct as follows: "The victim, although not even aware of himself being involved in a provocative conduct, offered the provocation to the appellant by being involved in an extramarital relationship with the appellant's estranged (but still legally married) wife, and at common law this is a sufficient 'implication' for the provocative conduct. The provocation although not directed at the appellant, it took place in the presence of him in a sufficiently unmistakeable way, by having the victim's car parked at the wife's parking place and by having the lights turned off in the early hours of the night" ([191]). 41In Stingel, the High Court said in relation to s 160 of the Criminal Code (Tas): "While personal characteristics or attributes of the particular accused may be taken into account for the purpose of understanding the implications and assessing the gravity of the wrongful act or insult, the ultimate question posed by the threshold objective test of s 160(2) relates to the possible effect of the wrongful act or insult, so understood and assessed, upon the power of self-control of a truly hypothetical 'ordinary person'. Subject to a qualification in relation to age (see below), the extent of the power of self-control of that hypothetical ordinary person is unaffected by the personal characteristics or attributes of the particular accused" (at 327). 42This approach is applicable to s 23 of the Crimes Act (Green v R [1997] HCA 50; 191 CLR 334). Accordingly, the appellant's attributes and characteristics are to be considered in assessing the gravity of the provocation which he alleges he faced, but not in considering under s 23(2)(b) whether that provocation might have caused an ordinary person to so far lose his or her self-control as to have formed an intent to kill. 43As it is sufficient under s 23(2)(a) that the loss of self-control was induced by conduct of the deceased "affecting" the accused, it is unnecessary for the conduct to have been directed at or in the presence of the accused (although that it was not may well be relevant to an assessment of how an ordinary person might have reacted to the provocation). As a result, Mr Corbett's conduct was capable of being regarded as conduct of the type to which s 23(2)(a) referred. Further, on the evidence as I have described it, it would have been open to the jury to take the view that the appellant did lose control and was induced to do so by Mr Corbett's conduct. No question of reasonableness of the appellant's response arises at this point. The issue posed by s 23(2)(a) is purely subjective. 44The more relevant inquiry for the purposes of this appeal is whether the conduct of Mr Corbett could have induced an ordinary person in the position of the appellant "to have so far lost self-control as to have informed an intent to kill" (s 23(2)(b)). 45As noted above, the gravity of the alleged provocation is to be assessed having regard to the appellant's personal characteristics. These included an obviously strict morality requiring faithfulness on the part of his wife even after a lengthy separation. For such a person, Mrs Corbett's conduct would have been significant. Of significance also would have been the conduct of Mr Corbett even though he did no more than have a relationship with a woman who was long-separated from her husband. He had no contact at all with her husband (if indeed he knew he existed). 46I do not consider that an ordinary person (who, in accordance with Stingel, is not assumed to have the characteristics of the appellant) might have been induced by Mr Corbett's conduct to lose self-control to such an extent as to have formed an intent to kill Mr Corbett. In my view the formation of a serious intent to kill Mr Corbett is quite beyond the range of possible conduct of an ordinary person in such circumstances. The fact that the appellant had known of the relationship for over seven months is significant in showing that the ordinary person in the position of the appellant would have had, as the appellant did, much time for reflection (see Pollock v R [2010] HCA 35; 242 CLR 233 at [62]). Although the accused's actions need not have occurred "suddenly" after the provocation (see s 23(3)(b)), the passage of time between the provocation commencing and the killing may support the view, as I consider it does in the present case, that an ordinary person in the position of the accused would not have killed the victim. 47As indicated by Barwick CJ in Johnson v R [1976] HCA 44; 136 CLR 619 at 634, "[t]he importance of the fatal act having been taken in the heat of passion may ... be related ... to whether the provocative act or situation is such as would lead an ordinary man to lose self-control so as to do an act of the kind of the fatal act done by the accused". Having known of the relationship for many months, an ordinary person in the position of the appellant would not have regarded observation of Mr Corbett's car at the Parramatta flat and the lights being out by 9.30 pm as adding anything significant to his knowledge. The present is a far-cry from a case where an accused has suddenly encountered a spouse in compromising circumstances or has been taunted by a spouse's lover. 48The present evidence is far closer to that in Stingel where the court found that the trial judge had correctly declined to leave provocation to the jury. In that case a 19 year old man, who remained infatuated with a woman after termination of their relationship, discovered the woman and a man engaged in sexual activities in the man's parked car. After being told by the man to "piss off", the accused obtained a knife and stabbed the man to death. 49For these reasons, my view is that a jury, acting reasonably, could not have failed to have been satisfied beyond reasonable doubt that an ordinary person in the position of the appellant would not have been induced by Mr Corbett's conduct to kill him. A verdict to the contrary would have been unreasonable and quashed on appeal. As a result, the trial judge acted correctly in not leaving an issue of provocation to the jury. GROUND OF APPEAL 2.1: MRS CORBETT'S EVIDENCE OF THE MARITAL RELATIONSHIP 50The appellant complains that Mrs Corbett's evidence of incidents of domestic violence on the part of the appellant should have been excluded, or limited in the use that could be made of it. As the appellant accepted that he had killed Mr Corbett, there could be no objection to the evidence on the ground that it showed a propensity of the appellant to violence and thus rendered the conclusion that he had killed Mr Corbett more likely. 51Evidence of the marital relationship, including the occurrence of any acts of domestic violence, was relevant to the determination of the issues arising under s 23A(1)(a) and was, understandably, treated by the expert forensic psychiatrists as relevant to their opinions. There was no basis for it to be excluded, limited in use or the subject of a warning to the jury. Overall, the evidence was in fact favourable to the appellant as it showed that he was not an habitually violent man, there having been only two isolated incidents of violence in Australia, both more than a decade earlier. That the appellant was not "a man who was habitually violent" was a factor leading to Dr Westmore's view, expressed after his second interview of the appellant and favourable to the appellant, that the appellant lost control "because of the significance of the moment for him being the anniversary and in the context of his depression", rather than as a result of anger and jealousy (Transcript p 296 - 7). Also favourably to the accused, the trial judge stated in his Summing-Up that "there's no real convincing evidence that the accused is an habitually violent man" and, later, that "plainly he is not a violent man" (Summing-Up pp 39 - 40). GROUND OF APPEAL 2.2: THE TRIAL JUDGE'S DIRECTIONS CONCERNING S 23A 52The appellant complains that written directions that the trial judge provided to the jury would have been confusing to the jury in that, in part, they omitted reference to the words "or to control himself" in s 23A(1)(a). However, the omission was corrected and, in my view, any confusion was avoided. GROUND OF APPEAL 2.3: THE RELEVANCE OF INTENTION TO KILL 53The appellant complains that the trial judge's directions failed to focus on the defence of substantial impairment of capacity but "tended to direct back ... towards the intention to kill, which is subject to a verdict of murder". In fact, appropriately, the trial judge focussed solely on the defence of substantial impairment of capacity, indicating that it was common ground that the elements of the offence of murder were established. GROUND OF APPEAL 2.4: DIRECTIONS CONCERNING S 23A 54Under this ground of appeal, the appellant appears again to complain that the trial judge did not confine his focus to the defence of substantial impairment of capacity. As already stated, I do not accept this to be the case. I reject the submission that the appellant also appears to make that the trial judge did not make clear to the jury that the consequence of it finding that the defence had been established was that it was to return a verdict of manslaughter, rather than murder. GROUND OF APPEAL 2.5: ABSENCE OF A WHITWORTH DIRECTION 55R v Whitworth [1989] 1 Qd R 437; 31 A Crim R 453 was concerned with legislation analogous to s 23A of the Crimes Act (NSW) in the terms in which it previously stood. That legislation required a relevant abnormality of mind to arise from one of a number of specified causes. That is not so under the present s 23A and in any event the expert psychiatrists agreed in the present case that a relevant abnormality of mind had been established. Accordingly, no occasion arose for a Whitworth direction. GROUND OF APPEAL 2.6: THE ELEMENTS OF MURDER 56The appellant complains of the trial judge's statement to the jury that it was common ground that the elements of murder had been established and says: "The third element of the murder however, namely, (c) that the offender committed the acts with the fault elements necessary for murder, was contested by raising the partial defence of manslaughter based on 'substantial impairment' and therefore it can not be said that it was 'common ground in this trial'" (Written Submissions [236]). 57As pointed out in [28] above, the trial judge's reference to the establishment of the elements of murder being common ground was correct and appropriate. The appellant's reliance upon a defence under s 23A, which required different elements to be established than those that comprised the offence of murder, did not indicate that it was not common ground. 58Furthermore, contrary to the appellant's submission, the trial judge's identification to the jury of the issues for its consideration did not amount to an inappropriate expression by the trial judge of views concerning facts of the case. 59Under this ground of appeal the appellant also asserts that the trial judge usurped the role of the jury "by rejecting the medical evidence". For the reasons that are given below in relation to Ground of Appeal 2.8, the trial judge did not do this. GROUND OF APPEAL 2.7: THE ELEMENTS OF MURDER 60The submissions in relation to this ground of appeal again assume that the appellant's raising of a defence of substantial impairment of capacity involved a challenge to the Crown's case that the elements of murder had been established. This was not so as the elements are different, and for reasons already given, the trial judge correctly treated it as common ground that the elements of murder had been established. GROUND OF APPEAL 2.8: THE PSYCHIATRIC EVIDENCE 61The appellant first submits that in his Summing-Up the trial judge treated the test applicable to the defence under s 23A as objective rather than subjective. This is not correct as the trial judge clearly directed the jury that the question arising under s 23A(1)(a) was whether the appellant's abnormality of mind affected his capacity in the manner described in that subsection (a question raising a subjective rather than an objective issue). The judge appropriately distinguished the different (and objective) question for the jury's consideration arising under s 23A(1)(b). 62The appellant next submits that the trial judge erred "in rejecting Dr Westmore's final opinion", consistent with his submission elsewhere that the trial judge failed to acknowledge that the expert psychiatrists were in full agreement. 63As noted in [24] above, Dr Westmore's opinion after his first interview of the appellant, was that the requirements of s 23A(1)(a) were not satisfied. After the second interview he reached a different view but stated that the issue was a difficult one involving two competing issues. Moreover he expressed his opinion in a tentative manner saying that, "the emphasis in my mind has moved [to a view according with that of Dr Nielssen]" (see [26] above). 64Importantly also, Dr Westmore made it clear that he considered there to have been a significant difference between the histories that the appellant gave him in the two interviews and that the history he was given on the first occasion was "more consistent with an angry, jealous revengeful man" (see [26] above), that is, suggesting that s 23A(1)(a) had not been satisfied. 65In these circumstances, the jury would not have been entitled to regard Dr Westmore's second view as significant in the absence of it concluding that what the appellant told Dr Westmore at the second interview correctly reflected his state of mind at the time of the killing. As a result, it would have been inappropriate for the trial judge to inform the jury, as the appellant submits he should have, that the views of the two psychiatrists as to the issues arising under s 23A(1)(a) were the same and that it should regard their evidence as determinative of those issues. Dr Westmore's evidence raised an issue for the jury of which description by the appellant of his state of mind was most accurate. 66The appellant further complains that in his Summing-Up the trial judge did not give a fair description of the psychiatric evidence. I do accept this submission. Whilst the trial judge did not in his Summing-Up refer to Dr Westmore's second opinion as to whether the appellant's capacity was substantially impaired by his abnormality of mind, he did not refer to the earlier different opinion either. The psychiatrists' opinions were dealt with at length in the addresses of the Crown Prosecutor and appellant's counsel and it was in my view unnecessary for the trial judge to descend to any greater detail in his Summing-Up than he did. GROUND OF APPEAL 2.9: THE APPELLANT'S ELECTRONICALLY RECORDED INTERVIEW 67The appellant complains that the trial judge did not refer in his Summing-Up to the appellant's ERISP interview, the record of which was tendered by the Crown. However, there was no need for the judge to refer to all of the evidence in the case and the appellant's counsel did not submit at the trial that the judge should have referred to the interview. Indeed, the appellant's submissions on appeal do not clearly indicate any reason why the recording was of significance. GROUND OF APPEAL 2.10: DISPARAGEMENT OF DEFENCE CASE 68The appellant complains that in his Summing-Up the trial judge disparaged the appellant's case. The references given by the appellant do not raise any arguable case that that was so. 69The appellant also submits under this heading that the trial judge failed to instruct the jury that it was for the Crown to prove beyond reasonable doubt that an impairment of the type described in s 23A did not exist. Such a direction would have been erroneous as the accused bears the onus of establishing the defence of substantial impairment of capacity (see s 23A(4)). GROUND OF APPEAL 2.11: CIRCUMSTANTIAL EVIDENCE 70The appellant complains that the "trial judge's direction[s] to the jury about the circumstantial evidence and the dangers of drawing inferences from them were insufficient and inadequate". 71This was not a case in which the Crown attempted to prove by circumstantial evidence that the accused did the act in question, as there was here no dispute that he did it. Rather, there was evidence, for example from the appellant's family, of facts and circumstances relevant to the establishment of his s 23A defence. The trial judge gave an appropriate caution about the jury too readily drawing inferences. No further direction was required. GROUND OF APPEAL 2.12: BIAS OF THE TRIAL JUDGE 72The appellant complains that in his Summing-Up the trial judge referred to evidence concerning the appellant's conduct and attitudes, and expressed the view that "[h]e was a man apparently with very strong morals, especially as regards sex, and rigid about it" (Summing-Up pp 40 - 41). This was not an inappropriate comment, and the evidence made its correctness obvious. In any event the jury was told that matters of fact were for its decision. 73The appellant's submissions in relation to this ground of appeal do not, in this respect or otherwise, raise any arguable case that there was any apparent bias on the part of the trial judge in relation to any particular aspect of the trial, or generally. GROUND OF APPEAL 2.13: SENTENCING 74The submissions in relation to this ground of appeal relate to the sentences imposed upon the appellant. They are dealt with separately below. GROUND OF APPEAL 3.1: THE LIMBS OF S 23A(1) 75The appellant submits that the trial judge erred in treating s 23A(1)(a) and (b) as involving separate issues for consideration by the jury. The trial judge was correct in doing so. Paragraph (a) relates to the existence of a relevant substantial impairment. Paragraph (b) imposes a further requirement to be satisfied for the defence to succeed, that "the impairment was so substantial as to warrant liability for murder being reduced to manslaughter". GROUND OF APPEAL 3.2: S 23A(1)(b) 76The appellant complains that the trial judge's direction to the jury to apply "the community standard" when considering whether the impairment was so substantial as to warrant liability for murder being reduced to manslaughter (s 23A(1)(b)) was erroneous. I do not agree. In directing attention to how an "ordinary person" would act, that paragraph clearly requires consideration of community standards. GROUND OF APPEAL 3.3: TIMING OF SUBSTANTIAL IMPAIRMENT DIRECTIONS 77The appellant complains that the trial judge should have explained the relevance of the psychiatric evidence to the jury when it was being admitted. However this was unnecessary as the evidence was referred to, and its relevance explained, in the Crown Prosecutor's opening address. GROUND OF APPEAL 3.4: THE "ORDINARY PERSON" REFERRED TO IN S 23(2)(b) 78The appellant submits that his mental condition of depression should be imputed to the "ordinary person" in considering whether the requirement of s 23(2)(b) has been satisfied. This would be contrary to the binding authority of Stingel which, as noted in [41] above, holds that subject only to a qualification in relation to age, "the extent of the power of self-control of [the] hypothetical ordinary person is unaffected by the personal characteristics or attributes of the particular accused" (at 327). The position is otherwise in the assessment of the gravity of the particular provocation (see 326). GROUND OF APPEAL 4: MALICIOUS WOUNDING 79The appellant submits that if he succeeds in relation to the murder charge, on provocation or his defence under s 23A, the mental element required to convict him on the charge of malicious wounding of Mrs Corbett is negated. For the reasons I have given, this condition is not satisfied as I do not consider that he is entitled to succeed either in relation to s 23 or s 23A. As a result, his challenge to his conviction for malicious wounding fails. GROUND OF APPEAL 5: INCOMPETENCE OF COUNSEL 80The appellant alleges that his counsel at trial was incompetent because he failed to address "crucial issues". 81The first mistake alleged by the appellant is that his counsel did not challenge "the Crown's hypothesis of the preparations, planning and intention to kill". There were clearly issues at the trial as to the appellant's preparations and alleged planning for the killing, relevant to when he formed an intention to kill. These bore on the substantial impairment of capacity defence under s 23A. In this context, the appellant gave evidence that sought to meet the Crown's contention that the killing was premeditated. In these circumstances, I reject the appellant's submission. 82Secondly, the appellant submits that his counsel erred in "not challenging the issue of malicious wounding on the ground of involuntariness". This submission is misconceived as it was irrelevant that the appellant did not intend to stab Mrs Corbett if he did so in the course of intentionally stabbing Mr Corbett. That was clearly the case. 83Thirdly, the appellant submits that his counsel erred in not requesting the trial judge to give adequate directions to the jury on the issue of substantial impairment. As adequate directions were in fact given, this submission fails. SENTENCE APPEAL (GROUND OF APPEAL 2.13) 84Following the jury's verdicts, the trial judge sentenced the appellant, for his murder conviction, to imprisonment for a non-parole period of 18 years commencing on 2 August 2006, with a balance of term of 6 years. For the offence of malicious wounding, the trial judge sentenced the appellant to a fixed term of 4 years commencing on 2 August 2006. That sentence was accordingly wholly concurrent with the other sentence. 85The appellant first submits that in his Remarks on Sentence dated 29 February 2008 the trial judge wrongly concluded, and took into account, that: - The attack was planned and carried out in "a cool, stealthy way". - "The persons should have been in the privacy of their own home". - The "savage and sustained nature of the attack". 86These findings of fact were ones that were well open to his Honour and were consistent with the jury's verdicts. The appellant does not identify any arguable basis for challenging the findings made by his Honour as follows: "I think that on 1 August 2006 the offender carried out an act he had been thinking about for some time. It had its beginnings, perhaps, in his remarks that people who stole other people's wives went unpunished and that in other countries people who committed adultery were stoned to death. Although I do not accept that he went to [Parramatta] to gain inspiration for an anniversary card I do think that the fact of the anniversary motivated him. I do not accept that he just happened to have with him the keys, the torch and the knife. I think that he left home with the intention of entering the flat and attacking Mr Corbett. His intent was to punish him by killing him for stealing another man's wife. His disposal of the severed penis was intended to teach Mrs Corbett a lesson for her adultery (Remarks on Sentence p 11). ... The features that tend to require a longer sentence are the cool, stealthy way the offender planned his attack and carried out by surprise on persons who should have been safe in the privacy of their own home, the savage and sustained nature of the attack, the disgusting mutilation of Mr Corbett's body after death and histrionic use of the magazine in the drawer" (Remarks on Sentence p 13). 87The matters referred to in [85] above were aggravating features that the trial judge was entitled to take into account under s 21A of the Crimes (Sentencing Procedure) Act 1999. Contrary to the appellant's submissions, the sentencing judge was not precluded from taking into account any of these matters on the basis that they formed part of the elements of the offence of murder. 88The appellant next submits that the sentencing judge failed to take into account his "pre-trial disclosure" and mental condition. The judge did however take account of the appellant's limiting of his challenges to the Crown's case and his economical conduct of his case (Remarks on Sentence, p 13). As well, the judge took into account the appellant's depression (ibid). 89The appellant's challenge to his sentence erroneously refers to "the unanimous evidence of both psychiatrists". For the reasons I have given in [65] above this is not a fair statement of the state of the evidence. 90The appellant also asserts that the judge "did not consider the mitigating factors with the standard of proof on the balance of probability required by law in cases which rely on defence of diminished responsibility pursuant to s 23A" (Written Submissions [373]). There is however nothing to suggest that the judge applied a higher standard than the balance of probabilities in making findings about mitigating factors. 91I reject the appellant's further submission that his sentence for the offence of murder was manifestly excessive. In my view the matters referred to in [86] and in the remainder of the judge's Remarks on Sentence well justified the sentence he imposed, bearing in mind particularly the prima facie applicable sentence for murder of imprisonment for life (see s 19A of the Crimes Act and s 21 of the Crimes (Sentencing Procedure) Act), the relevant standard non-parole period of 20 years (Division 1A Table, Crimes (Sentencing Procedure) Act) and the savage and (according to the standards of ordinary people) unprovoked nature of the appellant's attack on Mr Corbett. ORDERS 92For the reasons that I have given, I propose the following orders: (1) The time for the appellant to appeal against his conviction is extended to enable his purported appeal to be brought. (2) The appeal against conviction is dismissed. (3) Leave to appeal against sentence is refused. 93FULLERTON J: I agree with Macfarlan JA. 94CAMPBELL J: I have had the great benefit of reading the judgment of Macfarlan JA in draft. I agree with his Honour's reasons and with the orders he proposes. In particular, I wish to express my agreement with what his Honour has written about Ground 1.1. I agree that an independent assessment of the evidence demonstrates that its verdicts were well open to the jury. As his Honour has demonstrated the psychiatric evidence was not all one way. That evidence left it open for the jury to convict if it was satisfied beyond reasonable doubt that the facts assumed by Dr. Westmore at the time of his initial assessment represented what happened and why on the night Mr. Corbett was killed. In resolving that question the jury having seen and heard the witnesses, including the appellant, enjoyed an advantage that cannot be recreated in a court of criminal appeal. In my view, that advantage would have been crucial to the jury in resolving the psychiatric question which Dr. Westmore's evidence in particular left open for their determination. ********** 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. Decision last updated: 22 February 2013