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Court of Criminal Appeal 11 July 2000

R v Szabo

[2000] NSWCCA 226

Homicide
CRIMINAL LAW CONVICTION CONTROL ON THE PART OF THE ACCUSED

Citation: R v Szabo [2000] NSWCCA 226
Court: Court of Criminal Appeal, New South Wales
Date: 11 July 2000
Judge(s): Heydon JA; James J; Bell J

Background

The appellant, a man of Hungarian origin aged nearly 70, was convicted by jury of the murder of his wife following a trial before Wood CJ at CL in the Supreme Court. The deceased was 52 and from the former Czechoslovakia. The couple had been married for approximately eight years, and evidence at trial indicated the marriage had been troubled by arguments over money, verbal abuse, and some physical abuse in the period leading up to the death.

On the morning of 16 September 1996, neighbours heard screaming and thumping from the couple's home. Police found the deceased in the backyard with extensive head injuries caused by repeated blows with a brick. The appellant admitted to police that he had struck his wife with the brick. At trial, the killing itself was not in dispute. The defences raised were automatism, self-defence, provocation, and diminished responsibility. The jury rejected all of them and returned a verdict of murder.

The appellant appealed against his conviction on two grounds: first, that the trial judge had failed to adequately direct the jury on the defence of provocation under s 23 of the Crimes Act 1900 (NSW); and second, that irregularities in the conduct of the trial had resulted in the jury being misled, amounting to a miscarriage of justice.

Legal Issues

  • Whether the trial judge's directions on the subjective limb of provocation under s 23(2)(a) adequately drew the jury's attention to the appellant's personal characteristics, including his ethnicity, past history, and dependence on the deceased
  • Whether the trial judge's directions on the objective limb under s 23(2)(b) adequately conveyed that the gravity of the provoking conduct must be assessed by reference to the accused's personal characteristics before applying the ordinary person standard
  • Whether the trial judge was required to direct the jury under s 23(3)(a) and (c) that provocation is not negatived by lack of proportionality or by an intent to kill
  • Whether it was reasonably open to the jury to reject the defence of provocation beyond reasonable doubt
  • Whether it was reasonably open to the jury to reject the defence of diminished responsibility
  • Whether additional irregularities, including the absence of a good character direction and the leaving of "reckless indifference" to the jury, caused a miscarriage of justice

Decision

Ground 1(a): s 23(2)(a) directions on the accused's personal characteristics

The Court rejected the appellant's submission that the trial judge failed to impress upon the jury the relevance of his ethnicity, past history, and personal relationships when directing on the subjective limb of provocation. Heydon JA, with whom James J and Bell J agreed, found that the trial judge had repeatedly directed the jury to consider the accused as he actually was, with his temperament, age, and personal features. The trial judge also reviewed the relationship evidence, referenced the police interviews extensively, and summarised defence counsel's submissions on provocation in considerable detail. The fact that these references did not appear at the precise moment the law was being expounded did not render the summing-up defective.

Ground 1(b): s 23(2)(b) directions and the relationship between the two limbs

The Court also rejected the second criticism. The trial judge had on multiple occasions directed the jury to consider whether an ordinary person "in the position of the accused" would have so far lost self-control as to form an intent to kill or inflict grievous bodily harm. Heydon JA held that the phrase "in the position of the accused," used consistently throughout the oral directions and the written Summary left with the jury, necessarily imported the gravity of the provoking conduct as it affected the accused in light of his personal characteristics. The structured Summary, which guided the jury through questions building from the specific impact on the accused to the ordinary person standard, reinforced that connection. The Court also noted that experienced trial counsel had not sought any redirection on this point, supporting the conclusion that no problem was reasonably perceived at the time.

Ground 1(c): Failure to direct under s 23(3)(a) and (c)

This criticism was dismissed. The Crown had not argued that provocation was negatived by any lack of proportionality, and the trial judge's directions on s 23(2)(b) had not suggested it would matter. Since neither party raised the issue, the trial judge had no obligation to direct the jury on what was not the law in the circumstances of this case. No oral argument was directed to s 23(3)(c) either, and no such direction was required.

Miscarriage of justice: Was it open to the jury to reject provocation?

The Court held that it was well open to the jury to find the Crown had excluded provocation beyond reasonable doubt. Aspects of the evidence were inconsistent with the appellant's account of being the victim of aggression: he was taller and heavier than the deceased; the disparity between the severity of the deceased's injuries and the appellant's minor injuries was striking; neighbours heard female screaming suggesting the deceased was on the defensive; and elements of the appellant's own statements to police suggested the deceased may have been pleading for her life when the final blow was struck. The jury were entitled to reject the appellant's account of events and conclude that provocation had not been established.

Miscarriage of justice: Was it open to the jury to reject diminished responsibility?

The Court found that the jury's rejection of diminished responsibility was also open on the evidence. The two defence psychiatrists contradicted each other on key points, including automatism and dementia. The Crown's expert, Dr Skinner, found no abnormality of mind, no dementia, no thought disorder, and no brain damage, relying on her own observations and objective testing rather than on the appellant's self-reported history. The jury were entitled to prefer her evidence.

Miscarriage of justice: Irregularities in the conduct of the trial

Three separate irregularities were alleged. First, the provocation directions were said to be incomplete and misleading, but this was rejected for the same reasons as Ground 1. Second, the absence of a good character direction was raised; however, defence counsel had expressly declined to request one, and the Court held there was no obligation on the trial judge to give such a direction in circumstances where the accused had not testified and where the trial judge had already directed the jury not to use relationship evidence as propensity evidence. Third, the submission that leaving "reckless indifference" to the jury created a complication was dismissed: the relevant factual matters bearing on provocation were the same regardless of which limb of murder was being considered.

Orders Made

  • Appeal dismissed

Key Takeaways

  • A trial judge directing on provocation under s 23 of the Crimes Act 1900 (NSW) need not incorporate all relevant personal characteristics of the accused at the precise moment the law is being expounded, provided the summing-up as a whole brings those characteristics to the jury's attention through references to evidence and counsel's addresses.
  • The phrase "in the position of the accused" in a provocation direction, considered in context, is capable of conveying the requirement that the gravity of provoking conduct must be assessed by reference to the accused's personal characteristics before applying the ordinary person standard under s 23(2)(b).
  • A trial judge is not obliged to direct the jury on what the law does not require, such as directions under s 23(3)(a) and (c), unless the circumstances of the case make it necessary. Where neither party has raised proportionality as an issue, no such direction is called for.
  • Experienced trial counsel's failure to seek a redirection on an alleged deficiency in the provocation summing-up is a factor that supports the conclusion that no deficiency existed, even though it does not operate as a formal preclusion from raising the point on appeal.
  • In assessing whether a verdict is reasonably open, the Court of Criminal Appeal will examine the whole of the evidence, including internal inconsistencies in the defence case and the physical circumstances of the offence, rather than focusing solely on evidence favourable to the appellant.

Legislation and Cases Referenced

Legislation
- Not stated

Cases
- Not stated