Lindsay v The Queen

• Jurisdiction: Australia Federal only
• Judge: French CJ,Kiefel,Bell,Keane JJ.,Nettle J.
• Judgment Date: 06 May 2015
• Neutral Citation: [2015] HCA 16
• Docket Number: A24/2014
• Date: 06 May 2015
• Court: High Court

[2015] HCA 16

HIGH COURT OF AUSTRALIA

French CJ, Kiefel, Bell, Keane and Nettle JJ

A24/2014

Michael Joseph Lindsay

Appellant

and

The Queen

Respondent

Representation

M E Shaw QC with B J Doyle for the appellant (instructed by North East Lawyers)

M G Hinton QC, Solicitor-General for the State of South Australia with F J McDonald for the respondent (instructed by Director of Public Prosecutions (SA))

Criminal Law Consolidation Act 1935 (SA), s 353(1).

Lindsay v The Queen

Criminal law — Murder — Defences — Provocation — Where male Caucasian deceased made sexual advances towards male Aboriginal appellant at appellant's home in presence of appellant's de facto wife and family — Where open to jury to find that appellant killed deceased having lost self-control following advances — Where provocation left to jury at trial and appellant convicted of murder — Where Court of Criminal Appeal (‘CCA’) dismissed appeal against conviction because it concluded provocation should not have been left to jury as evidence, taken at highest, could not satisfy objective limb of provocation — Whether CCA erred in so concluding — Relevance of contemporary attitudes to sexual relations.

Criminal law — Appeal — Appeal against conviction — Application of proviso — CCA dismissed appeal by applying proviso to s 353(1) of Criminal Law Consolidation Act 1935 (SA) — Where CCA not invited to apply proviso by prosecution — Whether CCA erred in invoking and applying proviso of its own motion.

Words and phrases — ’minimum powers of self-control’, ‘ordinary person’, ‘partial defence’.

ORDER

• 1. Appeal allowed.

• 2. Set aside the order of the Court of Criminal Appeal of the Supreme Court of South Australia made on 3 June 2014 and, in its place, order that:

  • (a) the appeal be allowed;

  • (b) the appellant's conviction be quashed; and

  • (c) a new trial be had.

1 French CJ, Kiefel, Bell AND Keane JJ. Michael Joseph Lindsay was tried before the Supreme Court of South Australia (Sulan J) on an information that charged him with the murder on 1 April 2011 of Andrew Roger Negre. The jury were directed that it was incumbent on the prosecution to prove that the killing of the deceased was unprovoked. Lindsay was convicted of murder.

2 Lindsay appealed against his conviction to the Court of Criminal Appeal of the Supreme Court of South Australia (Kourakis CJ, Gray and Peek JJ) on grounds which challenged the accuracy and sufficiency of the directions given to the jury on the issue of provocation. The majority (Peek J, with whom Kourakis CJ agreed) found that the directions were flawed in a number of respects and that the cumulative effect of these flaws constituted a miscarriage of justice 1. However, their Honours were of the ‘firm view’ that in 21st century Australia the evidence taken at its highest in favour of Lindsay was such that no reasonable jury could fail to find that an ordinary person could not have so far lost his self-control as to attack the deceased in the manner that Lindsay did 2. It followed that the trial judge had been wrong to direct the jury on the alternative verdict of manslaughter based on provocation. The Court of Criminal Appeal majority concluded that, in the circumstances, the erroneous directions had not occasioned a substantial miscarriage of justice and the appeal was dismissed under the proviso to s 353(1) of the Criminal Law Consolidation Act 1935 (SA) (‘the CLC Act’) 3.

3 On 14 November 2014, French CJ and Gageler J granted Lindsay special leave to appeal from the order of the Court of Criminal Appeal. The appeal is brought on three grounds: first, that the trial judge was correct to leave provocation to the jury; secondly, that the Court of Criminal Appeal's reasons for concluding the contrary wrongly took into account unidentified academic literature; and thirdly, that in the absence of an application by the prosecution it was wrong to apply the proviso.

4 For the reasons to be given, the trial judge did not err in leaving provocation for the jury's consideration. In this Court, the prosecution does not

maintain that the directions on provocation given to the jury were sufficient. It cannot be concluded that, if the jury had been correctly instructed on the issue of provocation, the appellant would inevitably have been convicted of murder. It follows that the appeal must be allowed 4. Neither party submitted that, in this event, this Court should substitute a verdict of manslaughter. The appropriate consequential order is to direct that a new trial be had.

The evidence at trial

5 The appellant, an Aboriginal man, was aged 28 years or thereabouts at the date of the offence. On the evening of 31 March 2011, he, his de facto wife, Melissa, and a friend, Nicholas Hayes, visited the Hallett Cove Tavern. There they encountered the deceased, a Caucasian male who was previously unknown to them. The deceased had been drinking at the Tavern with his partner, Fiona Ninos. The two had quarrelled and she had gone home without him. The appellant and his party and the deceased all drank together and, in the early hours of 1 April 2011, they went to the appellant's Hallett Cove home to continue drinking.

6 The appellant and Melissa had been living together since before the birth of their son, Ethan, who was then nine years old. They shared their home with two boarders: Luke Hutchings and Brigette Mildwaters. When the group arrived at the Hallett Cove home on the morning of 1 April 2011, Luke and Brigette were there, as were the appellant's two younger sisters, Ashleigh and Tahlia, and his cousin, Michael. The group, with the exception of Michael, who was asleep, commenced drinking together.

7 At around 2:00am, Fiona Ninos rang the deceased's mobile telephone. The appellant spoke to her and invited her to join them. Fiona took up the invitation. After her arrival, the appellant showed her around the home. The deceased was seated at the kitchen bench where he was socialising with the group. Fiona stayed for around 45 minutes to an hour. During this time she did not see any aggressive behaviour. The mood of the group was good, they were drinking pre-mixed cans of bourbon and appeared happy and relaxed. Nonetheless, Fiona was annoyed with the deceased's decision to stay at the Tavern and to go out drinking with strangers and she told him so in heated terms.

The appellant suggested that the deceased could stay the night and he offered to bring him home in the morning. Fiona caught a taxi home.

8 Following Fiona's departure, there were two incidents, which together gave rise to the trial judge's decision to leave provocation for the jury's consideration. The first incident took place when the group was outside on the patio. The appellant was seated and the deceased straddled him, moving his hips backwards and forwards in a sexually suggestive manner. The appellant told the deceased that he was not gay and not to do ‘stuff like that’ or he would hit him. Melissa also remonstrated with the deceased. The deceased apologised and the appellant told him ‘That's okay, just don't go doing stuff like that’.

9 Peek J summarised the evidence of the patio incident, observing that, whether the deceased had intended it or not, there was substantial evidence that the incident had caused upset not only to the appellant but, importantly, also to his de facto wife in his presence 5. His Honour emphasised that the deceased had been told very firmly not to do it again 6.

10 The second incident occurred in the family room. The deceased was tired and the appellant told him that he could sleep in the spare room. The deceased said that he did not want to sleep up there by himself; he wanted the appellant in there with him. He said that he would pay the appellant for sex. The appellant replied ‘What did you say cunt?’. The deceased repeated his proposition, offering to pay the appellant several hundred dollars 7. The appellant punched the deceased, who fell to the floor. The appellant kicked and punched the deceased as he lay on the floor. At some stage, the appellant took hold of a knife with which he repeatedly stabbed the deceased.

11 The deceased sustained multiple penetrating stab wounds. One group of wounds was in the right arm and chest. A second group of wounds was located over the abdomen. The stab wounds were associated with two significant injuries to the aorta. One completely severed the aorta; another caused a half

thickness cut to it. These two wounds caused massive blood loss, leading to unconsciousness within 20 to 30 seconds and death within two to three minutes 8.

12 The appellant did not give evidence at the trial. It was his case that he had not been present at the time of the fatal assault.

13 It is common ground that there was evidence upon which a reasonable jury might consider it possible that the appellant was provoked by the deceased's conduct and that he lost his self-control and carried out the fatal assault before regaining his composure. In light of the issues raised by the appeal, it is unnecessary to refer to other parts of the evidence that may have placed the events surrounding the killing in a different light.

14 Before closing addresses, the trial judge invited counsel's submissions on whether provocation should be left for the jury's consideration. Trial counsel submitted that provocation was ‘fairly and squarely there and it really should be left to the jury’. The prosecutor acknowledged that there was evidence of loss of self-control and, in light of the decision of this Court in Green v The Queen9, the prosecutor accepted that provocation was raised and that it was incumbent upon the prosecution to negative it. The addresses of each counsel were directed in substantial measure to the issue of provocation.

Provocation

15 Provocation at common law operates to...