Citation: Lees v R [1999] NSWCCA 301
Court: New South Wales Court of Criminal Appeal
Date: 29 September 1999
Judge(s): Wood CJ at CL; Newman J; Foster AJ
Background
The appellant was convicted of murder following a trial before Badgery-Parker J in the Supreme Court. He was sentenced to a minimum term of thirteen years and six months penal servitude, with an additional term of four years and six months. The victim, who suffered from schizophrenia, hepatitis, and drug and alcohol addiction, had allowed the appellant to move into his unit about a month before his death.
On the night of the killing, neighbours heard sounds of a violent struggle. Police arrived to find the appellant standing over the victim, who was pronounced dead at the scene. The victim suffered severe injuries including skull haemorrhages, nasal fractures, facial lacerations, and bruising consistent with blows from a rod or piece of wood. The appellant had injuries to the knuckles of both hands.
The appellant gave evidence that the fight began after the victim struck him following a dispute about unpaid rent. He also said the victim had made reference to his father, who had died by suicide and whose body the appellant had found. The appellant admitted losing control and using extreme force. The primary issue at trial was whether the appellant had acted under provocation, which would reduce the verdict from murder to manslaughter.
Legal Issues
- Whether the trial judge's direction that "words alone which do not amount to a gross insult are not capable of giving rise to provocation" correctly stated the law under s 23(2)(a) of the Crimes Act 1900 (NSW)
- Whether the trial judge's directions on the standard of proof and the Crown's burden with respect to provocation were correct
- Whether further directions given by the trial judge during deliberations offended the principle in Black (concerning the risk of placing inappropriate pressure on a jury)
- Whether special circumstances existed to justify a variation of the ratio between the minimum and additional terms of the sentence, specifically whether a longer additional term was warranted
Decision
Provocation and the "words alone" direction: The Court of Criminal Appeal examined the trial judge's direction in the context of the summing up as a whole. His Honour had correctly directed that provocation may arise from acts alone, acts combined with words, or words alone, but that words alone must amount to a gross insult. The Court found this accurately reflected s 23(2)(a) of the Crimes Act 1900 (NSW). Importantly, the direction also made clear that where words were combined with actions, no such gross insult requirement applied, and the entire course of conduct was to be considered. No error was established on this ground.
Standard of proof directions: The Court considered whether the trial judge's directions on the Crown's burden to exclude provocation were accurate. The directions, which set out that the Crown could disprove provocation by negating any one of the three required elements, were found to be correct statements of law. No misdirection was identified.
Further directions and the principle in Black: The Court examined whether supplementary directions given by the trial judge during jury deliberations placed inappropriate pressure on the jury, contrary to the principle in Black. The Court found no such error on the facts.
Sentencing and special circumstances: The appellant argued that special circumstances existed justifying a longer additional term, effectively compressing the minimum term. The Court confirmed that the reason to find special circumstances is the need for a longer additional term, not a shorter minimum term, citing Phelan (1993) 66 A Crim R 446. Even where special circumstances are found, a readjustment of the proportions is not automatically required, as confirmed in Bloomfield. The trial judge had already given the appellant considerable benefit for subjective circumstances, including the significant trauma associated with discovering his father's death, limited intellectual capacity, and disadvantaged background. The Court was not persuaded the overall sentence was manifestly excessive or that any further adjustment was warranted.
Orders Made
- Appeal against conviction dismissed
- Application to appeal against sentence granted, but appeal dismissed
- Conviction and sentence below confirmed
Key Takeaways
- Under s 23(2)(a) of the Crimes Act 1900 (NSW), words alone can only constitute provocation if they amount to a gross insult; however, where words and acts are considered together, no such threshold applies and the entirety of the deceased's conduct must be assessed.
- The Crown may disprove provocation by negating any one of the three elements of the defence; it is not required to disprove all three.
- In dismissing the sentence appeal, the Court of Criminal Appeal reaffirmed that the purpose of finding special circumstances is to justify a longer additional term, not to reduce the minimum term below the statutory ratio.
- No error arises in sentencing merely because a trial judge weighs substantial subjective mitigating factors against an objectively serious offence and declines to vary the minimum-to-additional-term ratio.
- Jury directions must be assessed in the context of the summing up as a whole, not by isolating individual passages that may appear incomplete when read in isolation.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 23 (specifically s 23(2)(a)) (provocation)
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Sentencing Act 1989 (NSW), s 5(2)
Cases:
- Black (principle regarding further jury directions and avoiding inappropriate pressure on juries)
- Phelan (1993) 66 A Crim R 446 (special circumstances and the ratio between minimum and additional terms)
- Bloomfield (Court of Criminal Appeal, New South Wales, 15 July 1998) (fallacy in automatically reducing minimum term upon finding special circumstances)