Citation: Regina v Bowhay [2000] NSWCCA 54
Court: New South Wales Court of Criminal Appeal
Date: 14 March 2000
Judges: Stein JA; Hulme J; Greg James J
Background
The appellant was convicted of murdering a man at Casino on 9 March 1997. He was tried in the Supreme Court before Dunford J and a jury of twelve, found guilty on 4 December 1998, and sentenced to a minimum term of 16 years with an additional term of 7 years.
The appellant appealed against both his conviction and his sentence. By the time the appeal was heard, only one ground of conviction appeal remained live: that the trial judge had given erroneous directions to the jury on the issue of provocation, a partial defence that, if accepted, reduces a verdict from murder to manslaughter.
The jury had, during deliberations, sent a note requesting written directions on what constituted provocation. The trial judge provided those directions, and it was those written directions, along with aspects of the oral summing-up, that the appellant challenged on appeal.
Legal Issues
- Whether there was sufficient evidence of provocation to justify leaving that issue to the jury at all
- Whether the trial judge's written and oral directions on provocation were contrary to the approach required by the High Court in Green v The Queen (1997) 191 CLR 334
- Whether the trial judge misdirected the jury under s 23(2)(b) of the Crimes Act 1900 by framing the ordinary person test around the accused's specific intention (to kill, versus to inflict grievous bodily harm), rather than as a composite test
- If a misdirection was established, whether the proviso to s 6 of the Criminal Appeal Act 1912 should nevertheless be applied to dismiss the appeal because no substantial miscarriage of justice resulted
- Whether the sentence of 23 years total (16 minimum, 7 additional) was manifestly excessive
Decision
On whether provocation should have been left to the jury: Stein JA (with Greg James J agreeing) held that, while the evidentiary case for provocation was thin and even far-fetched, there was just enough evidence capable of constituting provocation to make it a question for the jury. Hulme J dissented on this point, finding that the evidence was insufficient to satisfy the minimum requirements of loss of self-control under s 23(2)(b) of the Crimes Act 1900 and the issue should not have been left to the jury at all.
On the Green v The Queen complaint: All three judges agreed that the trial judge had not misdirected the jury by failing to comply with the approach laid down in Green v The Queen. This ground failed entirely.
On the misdirection under s 23(2)(b): The majority (Stein JA and Greg James J) found that the written direction did contain a misdirection. The direction asked the jury to compare the accused's actual intention with what an ordinary person could have formed, treating the two possible intentions (to kill, versus to inflict grievous bodily harm) as alternatives that could yield a murder verdict if the accused's intention was more extreme. Section 23(2)(b) sets a composite test, and the direction did not reflect that properly. Hulme J also found a misdirection on this basis, but characterised its effect more seriously: in his view, the error effectively removed the provocation defence from the jury's consideration altogether.
On the proviso: Despite finding the misdirection, Stein JA (with Greg James J agreeing) applied the proviso to s 6 of the Criminal Appeal Act 1912 and dismissed the conviction appeal. There was no fundamental error in the conduct of the trial, no real possibility of a substantial miscarriage of justice, and any jury acting reasonably would inevitably have convicted the appellant of murder. Hulme J disagreed: had it been proper to leave provocation to the jury at all, the misdirection was so significant that the proviso could not apply, and its effect was to make it impossible to conclude there had been no substantial miscarriage of justice. On sentence, all three judges agreed the total sentence was not excessive in all the circumstances.
Orders Made
- Appeal on conviction dismissed.
- Leave to appeal against sentence granted.
- Appeal against sentence dismissed.
Key Takeaways
- A thin or even far-fetched evidentiary basis for provocation may still be sufficient to require the issue to be left to the jury, but the Court of Criminal Appeal was divided on where that threshold lies on the facts of this case.
- Under s 23(2)(b) of the Crimes Act 1900, the ordinary person test for provocation is a composite test: the jury must consider whether the deceased's conduct could have induced an ordinary person to lose self-control to the point of forming an intent to kill or inflict grievous bodily harm. Directions that treat those two intentions as discrete alternatives capable of yielding different verdicts misstate the test.
- In dismissing the conviction appeal, the majority applied the proviso to s 6 of the Criminal Appeal Act 1912, holding that a misdirection does not require a new trial where no substantial miscarriage of justice could realistically have resulted and any reasonable jury would inevitably have convicted.
- The dissent of Hulme J illustrates the importance of the threshold question: if provocation should not have been left to the jury at all, the analysis of misdirection and the proviso takes on a different character, but if it should have been, a direction that effectively removes the defence from consideration cannot be cured by the proviso.
- Sentencing for murder involving anti-social personality disorder may appropriately weight additional term over minimum term to ensure extended supervision on release, particularly where the offender is young.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 23(1), 23(2)(a), 23(2)(b)
- Criminal Appeal Act 1912 (NSW), s 6
Cases:
- Green v The Queen (1997) 191 CLR 334
- Stingel v The Queen (1990) 171 CLR 312
- Masciantonio v R (1995) 69 ALJR 598
- Krakouer v R (1998) 72 ALJR 1229
- Glennon v Regina (1994) 179 CLR 1
- Wilde v Regina (1988) 164 CLR 365
- Regina v Storey (1978) 140 CLR 364
- Quartermaine v Regina (1980) 143 CLR 595
- Mraz v Regina (1955) 93 CLR 493
- Woolmington v DPP [1935] AC 462