AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 18 May 2006

Disano v Regina

[2006] NSWCCA 125

Assault & violenceHomicide
CRIMINAL LAW APPEAL AGAINST CONVICTION MURDER RULE 4 OF THE CRIMINAL APPEAL RULES.

Citation: Disano v Regina [2006] NSWCCA 125
Court: NSW Court of Criminal Appeal
Date: 18 May 2006
Judge(s): McClellan CJ at CL, Hoeben J, Johnson J

Background

The appellant was convicted of murder following the death of his estranged wife's father during a physical altercation near Abbotsford Wharf on 2 January 2004. The appellant had pleaded guilty to manslaughter, but the Crown did not accept that plea. At trial, the appellant relied on several partial defences: lack of intent, self-defence, provocation, and substantial impairment by reason of abnormality of mind arising from severe depression and a paranoid personality disorder.

The factual backdrop involved a deteriorating relationship between the appellant and the deceased spanning several years following the breakdown of the appellant's marriage. On the morning in question, the two men left the wharf together and a violent confrontation ensued. The deceased sustained twelve fractured ribs, de-gloving facial injuries, and ultimately died from suffocation caused by inhaling leaf litter while unconscious. The appellant sustained a laceration above his eye requiring sutures.

The appellant did not testify at trial. His account of events came from a police interview and a statement made to his brother-in-law, both of which emphasised self-defence. He was convicted after a thirteen-day trial and sentenced to imprisonment with a non-parole period of 12 years.

  • Whether the trial judge's directions on provocation were inadequate or erroneous by failing to inform the jury, as required by s 23(3)(a) of the Crimes Act 1900, that there is no rule of law that provocation is negatived simply because the accused's response was not reasonably proportionate to the deceased's conduct.
  • Whether any such failure resulted in an unfair trial or a miscarriage of justice warranting intervention under rule 4 of the Criminal Appeal Rules.

Decision

The Court of Criminal Appeal dismissed the appeal, with all three judges in agreement. The central question was whether remarks made by Crown counsel during the trial suggested, contrary to s 23(3)(a), that provocation could be negated by a lack of reasonable proportion between the appellant's conduct and that of the deceased. Hoeben J found that the Crown's remarks, read in full context, did not carry that implication and were not inconsistent with the statutory direction.

Even accepting, for the sake of argument, that the Crown's remarks might have been misunderstood by the jury, the Court found no injustice had resulted. Senior counsel for the appellant had not objected to the remarks at trial, nor sought a corrective direction from the trial judge. Hoeben J noted that this silence could reflect a deliberate forensic choice: drawing attention to proportionality may have highlighted weaknesses in the provocation case, particularly the contested account of whether the deceased threw the first punch.

The Court also emphasised that the provocation case was, on the evidence, tenuous. Significantly, the appellant had not claimed provocation in his own statements to police or his brother-in-law, both of which focused on self-defence. The Court applied the principle that a failure to raise objections at the close of a judge's summing-up is ordinarily a reliable indicator of the fairness and adequacy of the directions given. In the circumstances, leave under rule 4 of the Criminal Appeal Rules was refused.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • Under s 23(3)(a) of the Crimes Act 1900, there is no rule of law that provocation is negatived merely because the accused's lethal act was disproportionate to the deceased's conduct. Trial judges are required to make this clear to juries when provocation is in issue.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a failure to object to a Crown address or seek a corrective direction at the close of the summing-up is ordinarily a reliable indicator that trial counsel did not regard the directions as unfair or inadequate.
  • No error in a jury direction automatically warrants appellate intervention. The Court must be satisfied that the omission resulted in an unfair trial or a miscarriage of justice before leave is granted under rule 4 of the Criminal Appeal Rules.
  • Where the case for a partial defence is tenuous on the evidence, and the appellant's own prior statements do not support that defence, a misdirection (even if established) is less likely to meet the threshold of causing actual injustice.
  • The absence of the appellant's own testimony asserting loss of self-control does not prevent provocation from being raised, but it remains relevant when the court assesses the overall strength of the defence and the practical effect of any alleged misdirection.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 23(3)(a)
- Criminal Appeal Rules (NSW), rule 4

Cases:
- R v Ita (2003) 139 A Crim R 340
- Papakosmas v The Queen (1999) 196 CLR 297
- R v Szabo [2000] NSWCCA 226
- R v Villa [2005] NSWCCA 4
- R v Wilson [2005] NSWCCA 20