Citation: R v Robert Theo Sievers [2004] NSWCCA 463
Court: NSW Court of Criminal Appeal
Date: 17 December 2004
Judge(s): Levine J, Simpson J, Barr J
Background
The appellant was charged with the murder of Michelle Josephine Campbell, a woman with whom he had been in a relationship for several months. He admitted to stabbing her at a Lakemba address on 4 July 2000, transporting her body to a remote location near Bellbrook, and withdrawing money from her bank account in the weeks following her death. The sole live issue at trial was whether he was guilty of murder or manslaughter on the basis of provocation.
The appellant's account at trial was that the deceased had subjected him to sustained physical and verbal abuse over several days immediately before the killing, including being struck with a hammer, stabbed with syringes, and bitten. He said he lost all self-control when she approached him with a knife on the day she died. Medical and witness evidence supported aspects of his account of prior violence.
The jury convicted him of murder. He was sentenced to life imprisonment. The appellant was, notably, a second-time convicted murderer of a spouse. He appealed both conviction and sentence.
Legal Issues
- Whether the trial judge's directions on provocation misstated the objective test under s 23(2)(b) of the Crimes Act 1900 by substituting "could an ordinary person be expected to respond" for "could an ordinary person respond," thereby raising the standard to the Crown's advantage and the accused's disadvantage.
- Whether the trial judge's directions on consciousness of guilt were appropriate and sufficient, particularly given that manslaughter remained an available verdict.
- Whether the life sentence was reviewable on appeal.
Decision
Ground 1: Provocation directions
The central complaint was that the trial judge, after correctly directing the jury in terms closely tracking s 23(2)(b), later varied his language to ask whether an ordinary person "could be expected to" lose self-control and form the relevant intent, rather than simply whether they "could" do so. The appellant argued this reformulation shifted the test from one of possibility to one of probability, to his detriment.
The Court of Criminal Appeal, by majority, rejected this argument. The majority held that asking whether an ordinary person "could be expected to respond" in a particular way was not materially different from asking whether they "could respond" in that way. The added words emphasised the hypothetical nature of the inquiry without altering the meaning of "could." The majority observed that to convert the test into one of probability, the language would need to have been something like "would be expected to." Leave to appeal on this ground was refused.
Ground 2: Consciousness of guilt directions
The appellant contended the directions on consciousness of guilt were inadequate. Specifically, he argued the jury needed to be told that the inference of guilt from the appellant's post-offence conduct (concealing the body, withdrawing money from the deceased's account) could only support a finding of murder rather than manslaughter if the only rational inference was that the appellant was acknowledging guilt of murder specifically, not just some criminal act. A draft direction to that effect was tendered and rejected by the trial judge.
The Court found that the directions actually given conformed with the law as stated in Edwards v The Queen (1993) 178 CLR 193. They adequately conveyed to the jury that consciousness of guilt evidence could only be used if the sole rational inference was that the appellant was acknowledging he had committed murder. In the circumstances of the trial, the post-offence conduct was relevantly directed to the question of whether the appellant had the intent for murder or had instead acted under provocation. This ground was also dismissed.
Sentence appeal
Leave to appeal against sentence was granted, but the appeal was dismissed. The life sentence was upheld.
Orders Made
- Appeal against conviction dismissed (by majority).
- Leave to appeal against sentence granted.
- Sentence appeal dismissed.
Key Takeaways
- Under s 23(2)(b) of the Crimes Act 1900, the objective test for provocation asks whether the provocative conduct "could have induced" an ordinary person to lose self-control to the requisite degree; the Court of Criminal Appeal confirmed that phrasing this as whether an ordinary person "could be expected to" respond in that way does not elevate the test from possibility to probability.
- A direction on consciousness of guilt is legally sufficient where it instructs the jury that such evidence can only be used if the sole rational inference from the accused's post-offence conduct is an acknowledgment of guilt for murder specifically, not merely some lesser offence.
- Where manslaughter is an available verdict and post-offence conduct is in evidence, consciousness of guilt directions must be tailored to address whether the inference points to murder rather than manslaughter, though the Court found no error in the directions given in this case.
- In dismissing the sentence appeal, the Court upheld a life sentence imposed on a second conviction for the murder of a spouse, with leave having been granted but the appeal ultimately failing.
- No error was established in either the provocation directions or the consciousness of guilt directions, notwithstanding that the trial judge did not adopt the defence's proposed draft direction on the latter issue.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 19A, 23(1), 23(2)(a), 23(2)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 61
Cases:
- Edwards v The Queen (1993) 178 CLR 193
- Green v The Queen [1997] HCA 50; (1997) 191 CLR 334
- Heron v The Queen [2003] HCA 17; (2003) 197 ALR 81
- Masciantonio v The Queen (1995) 183 CLR 58
- Regina v Baker (unreported, NSWCCA, 20 September 1995)
- Regina v Harris (2000) 50 NSWLR 409
- Regina v Hodge [2002] NSWCCA 10
- Regina v Noelene Anderson [2002] NSWCCA 194
- Regina v Toki [2003] NSWCCA 125
- Regina v Twala (unreported, NSWCCA, 4 November 1994)