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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: NSW Court of Criminal Appeal
Date: 11 July 2000
Judge(s): Heydon JA; James J; Bell J

Background

The appellant was convicted of murder by a jury following a trial before Wood CJ at CL in the Supreme Court. The charge arose from the death of the appellant's wife, who died from repeated blows to the head with a brick at the couple's home in September 1996. The appellant, then nearly 70 years old, admitted to police at the scene that he had killed her.

At trial, the killing itself was not in dispute. The case turned on the defences raised on the appellant's behalf: automatism, self-defence, provocation, and diminished responsibility. The appellant did not give evidence himself but called psychiatric and personal witnesses to support those defences.

The jury convicted the appellant of murder, rejecting all four defences. He then appealed to the Court of Criminal Appeal on two grounds, each targeting the conduct of the trial below.

  • Whether the trial judge failed to adequately direct the jury on the defence of provocation under s 23 of the Crimes Act 1900 (NSW), including the correct application of the subjective limb in s 23(2)(a) and the objective limb in s 23(2)(b).
  • Whether irregularities in the conduct of the trial, including the directions given and the leaving of reckless indifference to the jury, had the potential to mislead the jury, resulting in a miscarriage of justice.

Decision

The Court of Criminal Appeal upheld the provocation directions given by the trial judge. The trial judge had correctly directed the jury that s 23(2)(a) is a subjective test, requiring an actual loss of self-control by the accused induced by the deceased's conduct, and that s 23(2)(b) is an objective test, asking whether the deceased's conduct could have induced an ordinary person in the position of the accused to lose self-control to the point of forming an intent to kill or inflict grievous bodily harm. The Court found no error in how these two limbs were presented to the jury.

The Court also found it was reasonably open to the jury to conclude that provocation had not been established. The appellant's two specific criticisms of the provocation directions, which drew on the High Court's reasoning in Masciantonio v R and Green v R, did not reveal any misdirection in the summing up.

On the broader miscarriage of justice ground, the Court rejected the argument that the trial judge had erred in leaving reckless indifference to the jury as a basis for murder. The Court reasoned that the factual matters relevant to provocation would have been the same regardless of whether reckless indifference was left as an alternative basis. That aspect of the summing up did not create any additional complication in relation to the s 23(2)(b) objective test and did not have the potential to mislead the jury.

The Court also rejected a complaint about the absence of a good character direction, finding that such a direction was not warranted in the circumstances. The trial judge had already directed the jury against using relationship evidence to infer a propensity to kill, and the appellant's failure to give evidence meant a good character direction going to credibility was irrelevant.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that s 23(2)(a) of the Crimes Act 1900 (NSW) is a subjective test requiring actual loss of self-control by the accused, while s 23(2)(b) is an objective test asking what could have induced an ordinary person in the accused's position to lose self-control.
  • No error arose from the trial judge's summing up where the jury was correctly instructed on both limbs of s 23, even where the accused drew on High Court authority in Masciantonio v R and Green v R to challenge the directions.
  • Leaving reckless indifference to the jury as an alternative basis for murder does not automatically create a miscarriage of justice; the Court looked to whether it generated any additional complication for the provocation analysis, and found it did not in this case.
  • A good character direction is not invariably required simply because an accused's background or relationship history is in evidence; where the trial judge has already limited the use of that evidence and the accused did not testify, such a direction may be inappropriate.
  • In dismissing the appeal, the Court emphasised that a verdict is not set aside on the provocation ground unless the jury's finding that provocation was disproved was not reasonably open on the evidence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 18(1)(a), 23

Cases:
- Gipp v R (1998) 194 CLR 106
- Green v R (1997) 191 CLR 334
- Jones v R (1997) 191 CLR 440
- M v R (1994) 181 CLR 487
- Masciantonio v R (1995) 183 CLR 58
- Melbourne v R (1999) 164 ALR 465
- R v BRS (1991) 148 ALR 101
- R v D (1996) 86 A Crim R 41
- Simic v R (1980) 144 CLR 319
- Stingel v R (1990) 171 CLR 312