High Court orders a re-trial for a man who violently stabbed and bludgeoned his wife to death in front of their children – Bill Potts comments

A man who had been sentenced to life in jail for stabbing and bludgeoning his wife to death in 2016  has been granted a re-trial by the majority of the High Court. The High Court found that the trial judge wrongly instructed the Jury about how they (the jury) could consider the defence of provocation and if it applied in this case.

Background

Section 304 of the Criminal Code (Qld), a person is only guilty of manslaughter (and not murder) if that person unlawfully kills another

(a)in the heat of passion,

(b)caused by sudden provocation, and

(c)before there is time for the person’s passion to cool (Killing on Provocation)

However section 304(3) of the Criminal Code (Qld) excludes the defence of provocation in circumstances where the accused unlawfully killed their domestic partner AND that unlawfully killing “was based on” anything done, or believed to have been done, by the deceased to end or change the relationship.

The Appellant in this case killed his wife and the court found it was open to the court to find that the appellant was angry at his wife because he believed that his wife was having an affair and that she was planning to leave him and take their four children with her.

At the time of his arrest, the appellant told police that before his wife died there had been an argument between them and that the deceased threatened him with a knife. When the appellant tried to disarm the deceased, he told police that he received a deep cut to his hand and that because of this incident with the knife, the appellant lost control.

At trial, the trial judge directed the jury that in order for the appellant to be able to rely on the defence of provocation for the killing of his wife, the appellant must prove, on the balance of probabilities, that:

1. he killed the deceased while in a state of temporary loss of self-control induced by her conduct with the knife;
2. an ordinary person in his position might have been induced to so lose self-control as to form, and act upon, an intention to kill or do grievous bodily harm; AND
3. the appellant’s loss of self-control was not “based on” anything done, or believed to have been done, by the deceased to change the relationship.

Following the trial judge’s direction, the jury found the appellant guilty of murder.

On Appeal, the majority of the High Court held that to rely on 304 of the Criminal Code (Qld) (Killing on Provocation) the accused person must be able to show that:

1. there was something done (or believed to have been done) by the deceased; and
2. the killing was done in a state of loss of self control; and
3. and the loss of control was induced by the conduct/thing done (or believed to have been done) by the deceased.

With regards to the exclusion of provocation under section 304(3) of the Criminal Code (Qld), the High Court stated that to determine whether this exclusion applies exists, this is ultimately a question of law. The High Court found that the trial judge was wrong when he told the jury that the appellant was required to prove that his conduct  was not “based on” anything done, or believed to have been done, by the deceased to change the relationship and that the conduct with the knife was in itself sufficient for the jury to consider whether the defence of Killing on provocation existed.

The appeal was allowed, and a new trial ordered.

In a recent interview with the Courier mail, our Director Mr Bill Potts said that

“provocation as a partial defence exists because the courts and the public recognise that sometimes people lose the power of self-control because they are offered some form of insult or injury, however the defence should not be available to enable jealous and enraged spouses from killing their spouses simply to assuage their pride”.

“I think there is a clear need for there to be community debate and for the law reform commission and for domestic violence experts to weigh in to ensure that our laws keep pace with our knowledge  and the increasing public revulsion at behaviour like this”.