Citation: Clarke v Regina [2008] NSWCCA 36
Court: New South Wales Court of Criminal Appeal
Date: 27 February 2008
Judge(s): Grove J, Hulme J, Simpson J
Background
The appellant was tried in the Supreme Court in October 2004 on a charge of murder. A jury acquitted him of murder but returned a verdict of guilty of manslaughter. The sentencing judge, Barr J, imposed a term of imprisonment with a non-parole period of six years commencing 12 April 2003, with a balance term of two years.
The underlying facts involved the appellant arming himself with a hunting knife after his daughter reported a heated confrontation with the deceased, who lived nearby. The appellant sought out the deceased and killed him with a single knife thrust to the chest. At trial, issues of accident, self-defence, excessive self-defence, unlawful and dangerous act, and provocation were all canvassed.
Barr J found, for sentencing purposes, that the appellant had acted under provocation arising from what his daughter had reported to him about the deceased's conduct, that he had intended to stab the deceased when he picked up the knife, and that the deceased had used his belt only in response to the threat posed by the knife, not as an attack on the appellant.
Legal Issues
- Whether Barr J erred in finding that "hearsay provocation" (provocation based on what the daughter reported rather than conduct the appellant witnessed directly) could properly form the basis of a manslaughter conviction by provocation, under the principle in R v Quartly (1986) 11 NSWLR 332.
- Whether, if hearsay provocation was unavailable, the sentence should be reduced on the basis that the conviction rested on a lesser form of criminality, namely unlawful and dangerous act manslaughter rather than provocation manslaughter.
- Whether the sentence was manifestly excessive in any event.
Decision
On hearsay provocation: The Court examined whether provocation in law can be founded on conduct reported to the defendant by a third party, rather than conduct the defendant personally witnessed. The principle in R v Quartly had been taken to support the availability of such "hearsay provocation." The Court declined to resolve definitively whether Quartly was correctly decided, reserving that question for a more suitable appeal. However, the Court noted serious doubt about whether the hearsay provocation direction given at trial was appropriate in the circumstances of this case.
On the sentencing basis: Even accepting that the provocation finding was built on hearsay, the Court concluded this did not require any reduction in the sentence actually imposed. Barr J's detailed findings at sentencing established that the appellant had armed himself with the intention of stabbing the deceased, had sought out the confrontation, and that the deceased's use of his belt arose only as a response to the knife. Those findings were inconsistent with the requirements of operative provocation in law, meaning there was no basis to find that provocation should have reduced the sentence further or altered the sentencing calculus.
On the alternative basis: The Court considered whether, if the appellant's criminality was properly characterised as no more than an unlawful and dangerous act causing death, a lesser sentence would have been warranted. It concluded it would not. The appellant had deliberately sought out the deceased and taken a knife to whatever confrontation would follow, conduct the Court characterised as seriously aggravating. The court reiterated that every case of manslaughter involves the felonious taking of a human life, and that is the starting point for assessing the gravity of the offending.
All three judges agreed that the appeal should be dismissed.
Orders Made
- Extension of time to appeal against sentence granted.
- Leave to appeal against sentence granted.
- Appeal dismissed.
Key Takeaways
- The Court of Criminal Appeal left open the question of whether R v Quartly (1986) 11 NSWLR 332, which supports the availability of "hearsay provocation," was correctly decided, expressly reserving it for determination in a suitable future appeal.
- A sentencing court is not bound by the pathway the jury may have taken to reach a manslaughter verdict; rather, the sentencing judge must make independent findings of fact, consistent with the verdict, to the required standard.
- Where the sentencing judge's findings are incompatible with the legal requirements of provocation (loss of self-control induced by the deceased's conduct), no reduction in sentence flows from the fact that provocation was left to the jury.
- Even where an offender's criminality might be characterised solely as an unlawful and dangerous act causing death, a lesser sentence does not automatically follow; the gravity of the particular conduct remains determinative.
- In dismissing the appeal, the Court confirmed that deliberately arming oneself and seeking out a confrontation are significant aggravating features that can sustain a substantial sentence for manslaughter.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 23
Cases:
- R v Quartly (1986) 11 NSWLR 332
- Savvas v The Queen (1995) 183 CLR 1
- Davis v The Queen (1998) 73 ALJR 139
- R v Davis [1998] 100 A Crim R 573
- R v Mohamad Ali [2005] NSWSC 334
- R v Blacklidge (Unreported, NSWCCA, 12 December 1995)
- R v Dodd [1991] 57 A Crim R 349
- R v Hill [1981] 3 A Crim R 397