The cumulative effect of words and conduct — including boasts of promiscuity, abuse, contemptuous behaviour, and minor physical acts — may be sufficient to raise provocation for the jury even where no single element alone would suffice, and the trial judge must clearly direct the jury that the onus of disproving provocation lies on the Crown.
Later decisions that cite Moffa v R
Decisions cited by Moffa v R
MOFFA v. THE QUEEN [1977] HCA 14; (1977) 138 CLR 601
Criminal Law
High Court of Australia
BARWICK (1) C.J. Gibbs(2), Stephen(3), Mason(4) and Murphy(5) JJ.
CATCHWORDS
Criminal Law - Murder - Alternative verdict of manslaughter - Provocation - Husband charged with murder of wife - Evidence of taunts and abuse and assertions of sexual promiscuousness - Whether issue of provocation open to jury - Onus of proof - Sufficiency of summing up.
HEARING
Melbourne, 1976, May 14.DECISION
1977, March 4.
2. I feel bound to agree with my brother Gibbs' conclusion that if nothing
more had been established by the applicant by way of
provocation than mere
words and if those words were not, to use the language of Viscount Simon in
Holmes v. Director of Public
Prosecutions (1946) AC 588 of a violently
provocative character, the onus upon the Crown of establishing beyond any
reasonable
doubt that the killing of the deceased's wife was unprovoked did
not specifically arise. In that situation, the trial judge would
have been in
error in leaving to the jury a case of provocation and, consequently, errors
made in the summing up in relation to
that issue, had there been occasion to
place a case of provocation before the jury, would not have required the
quashing of the
applicant's conviction. Accordingly, on that footing, special
leave should be refused. (at p605)
3. But I am unable to agree that the statement of the applicant at his trial
disclosed no more than a case of mere words by way
of provocation or, if there
were no provocation but by mere words, that those words could not be said to
be of a violently provocative
character. Whilst I agree that it has long been
accepted that a confession of adultery, even if unexpected and suddenly made,
can
never afford ground for the conclusion that an ordinary man would thereby
be led to lose his self-control to the point of forming
an intent to murder or
to do grievous bodily harm, I must say that circumstances do alter cases and
that such an unqualified rule
is hardly consonant with the "benignity of the
law" in its concession to "human infirmity": Foster, Discourse on Homicide,
2nd
ed. (1776), p. 255. (at p605)
4. Before setting out my reasons for thinking that the situation described by
the applicant to the jury - an account which they
would be entitled to accept
- provided a basis for placing on the Crown the onus of establishing beyond
reasonable doubt that the
killing of the deceased was unprovoked, I ought to
observe that it was not suggested by the Crown that that killing was
premeditated.
The intent to kill or to do grievous bodily harm to the deceased
was formed on the morning of her death. Indeed, it could well be
concluded
that it was formed after and consequential upon the exchanges between the
deceased and the applicant on that morning.
There was therefore material upon
which it could be concluded that the applicant had lost his self-control at
the time he formed
the intent to kill or grievously wound the deceased: and
that that was due to what the deceased had said and done immediately before
that loss occurred. There is nothing suggested about the applicant, his
disposition or mental balance, which could be called in
human terms
extraordinary. That he was emotionally disturbed by his wife's disclosed
attitude to him did not make him, in my view,
other than an ordinary man: and,
in particular, other than an ordinary man of his ethnic derivation. If the use
of the word "reasonable",
in the statement of what is called the objective
test in relation to provocation, would exclude from consideration such
emotional
reactions, I have even greater reason for preferring the description
"ordinary man" in the formulation of that test. (at p606)
5. The applicant's account of the critical events of the morning of 21st
August, the day of the death of the deceased, is set
out in the reasons for
judgment to which I have referred. The totality of the deceased's conduct on
that occasion, according to
that account, was that there was vituperative and
scornful rejection of the applicant's connubial advances, a contemptuous
denial
of any continuing affection, a proclamation of finality in the
termination of their relationship coupled with an expression of pleasure
in
having had intercourse promiscuously with neighbouring men. This statement of
enjoyment in that course of conduct might reasonably
be thought, particularly
if coupled with the manner of her rejection of the applicant, to contain an
assertion, contemptuously
expressed by the deceased, of sexual inadequacy on
the part of the applicant. Whilst in themselves small matters, the threat of
physical violence to reinforce her rejection of him, the throwing of the
telephone as an expression of contempt and the use made
of the nude
photographs, form part of the whole situation. To describe that situation as
consisting merely of words is not, in
my opinion, to reflect the reality of
the total scene. I am of opinion that a jury would be entitled to view the
situation in its
entirety as I have briefly described it, including the
implied taunt of the applicant's incapacity sexually to satisfy the deceased
as she had found other men could. If they took that view, it was open to them
to conclude that an ordinary man, placed as was the
applicant, would so far
lose his self-control as to form an intention at least to do grievous bodily
harm to his wife. Whether
they would or would not take such a view of the
situation would essentially be a matter for them. They are credited with a
knowledge
of how the ordinary man would react in such a situation. Many might
think that they should not draw any such conclusion. But there
are limits to
the control of such a factual situation which the court can exercise. If, as I
think, the situation was not composed
of mere words of a not violently
provocative character, the court cannot refuse to allow the tribunal of fact
to decide the matter
unless it is quite clear that no reasonable person could
possibly conclude that, in the situation most favourably viewed from the
standpoint of the accused, an ordinary man could have so far lost his
self-control as to form an intent at least to do grievous
bodily harm to his
wife. With every respect to those of a different opinion, I cannot think that
the trial judge would have been
justified in this case in refusing to leave to
the jury the question of provocation. In particular and with due respect to
the
views expressed in the Supreme Court of South Australia, I do not think
that it can properly be said that it was not reasonably
possible to conclude
that, in the total situation described by the applicant, an ordinary man might
so far lose his self-control
as to form at least an intent to do his wife
grievous bodily harm. As I have said, whether it should be concluded that an
ordinary
man would do so is a question exclusively for the jury, however much
a court may be inclined to think that a jury should not do
so. Accordingly, it
was not an error to place that matter before them. (at p607)
6. It therefore becomes necessary for me to consider the submissions made on
behalf of the applicant as to the propriety and sufficiency
of the summing up
on relation to provocation. These submissions are recounted in the reasons of
my brother Gibbs; I have no need
to repeat them. I shall deal, first, with the
submission that the learned trial judge did not tell the jury that, if they
thought
the accused's account of the events of the fatal morning was
reasonably possible and further thought that it was reasonably possible
that
such a situation would cause an ordinary man to lose his self-control so far
as to form an intent to kill or do grievous bodily
harm, the onus lay on the
Crown to establish beyond reasonable doubt that the killing was unprovoked. I
have expressed the submission
in this expanded form in order to bring out the
essential elements. As I have said, the State of South Australia has not by
statute
varied the relevant common law. The question of onus is therefore
governed by Woolmington v. Director of Public Prosecutions [1935]
UKHL 1; (1935)
AC 462 . The
difficulties which that decision places in the path of the Crown in its
endeavour to establish an
unlawful
killing
are obvious: and the difficulty a
jury must have in applying the onus in a case where the provocation may be
marginal
in
some or
all of its necessary ingredients is equally obvious. Thus
extreme care is called for in the instruction of a jury where
provocation
is
open to them if a proper balance is to be maintained between Crown and
accused. In my reasons for judgment in Johnson
v. The
Queen [1976] HCA 44; (1976) 136 CLR 619
I indicated that a claim to the reduction of murder to manslaughter by reason
of
provocation is not really
a matter of defence which the Crown should be
required to negative beyond reasonable doubt: and that it
would not be unjust
or
unfair to place upon the accused the satisfaction of the jury on a balance
of probabilities of all the elements
necessary to warrant
a refusal to find
murder and a finding of manslaughter. The administration of criminal justice
would, in my
opinion, be aided and
not impaired by the production by statute
of such a position. (at p608)
7. But, as the law stands in South Australia, if there is room for a finding
of provocation, it is for the Crown to establish
beyond reasonable doubt that
the killing was unprovoked. It is essential that the jury be so instructed in
plain and direct terms.
There is no doubt the trial judge did not do so in
this case. Indeed, the impression I get from reading and rereading the summing
up is that the jury would, by its terms, be led to believe that the onus was
on the accused. I take the following extracts from
the summing up, which,
though extracted, do present a fair picture of the summing up as a whole. (at
p608)
8. Though the judge correctly instructed the jury that it was for the Crown
"to prove beyond reasonable doubt . . . that the killing
was unlawful, without
lawful excuse", it is plain from the illustration immediately given by the
judge, an illustration related
to self-defence, that this direction was not in
any way related to the matter of provocation. (at p608)
9. After dealing with the necessity in murder of an intent to kill or do
grievous bodily harm, the judge said:
"There is another form of act - and probably what the
defence suggests in this case may bring it nearer to this type
of act - which would reduce murder to manslaughter. That
is where there is an intention to cause at least bodily harm -
grievous bodily harm - but the conduct, or some act or series
of acts on the part of the deceased person has been such as is
likely to cause a reasonable person to be so rendered subject
to passion or loss of control as to be led to use the violence
which results in the death and does in fact lead the accused
to use such violence. Now, if that happens, then the crime is
reduced from murder to manslaughter; and that may
happen even where there is an actual intention to kill if the
intention arose from a loss of self control in the accused by
reason of provocation in the way in which I have defined
provocation. Such provocation must have been such that it
might have caused a reasonable person to use the violence
which the accused used and it did in fact cause the accused to
use that violence. You have to discriminate between an act
done in the heat of passion which is provoked by such
conduct and an act which is done in retaliation for such
conduct. That is why the law talks of a cooling off time and
that is why it talks of the reasonable man. Some conduct
may cause even a reasonable person to get into a fury; but
if there is time for him to think about it, he will not do the act
which causes the death; and anyone who does do that act is
doing it in retaliation, not in the heat of provocation. That
is where the cooling off time is important.
But, in the case of this accused, if you find it reasonably
possible that he was acting under provocation such as would
have caused a reasonable man to act as he acted and such as
did cause him to act as he did act, then he is to be convicted
of manslaughter and not murder, even though you may find
not only that he killed his wife, but that he intended to kill
her. You may find that he killed his wife, he didn't intend to
kill her, he intended to do her some harm, he intended to do
her grievous bodily harm, but if you think it reasonably
possible that he was acting under provocation in the sense
which I have described, that is sufficient to find him guilty of
manslaughter and not murder. In considering whether a
reasonable man would have been so provoked as to commit
an act of violence which led to this death, you will consider
the whole of the acts or conduct alleged to constitute
provocation in deciding whether this accused had time to cool
off after the provocation - if you decide there was any
provocation - or whether the whole conduct of the victim was
such - as has been said before - as might heat the blood to a
proportionable degree of resentment and keep it boiling until
the moment of the act. So that one of the factors that you
have to take into account in evaluating the actions of the
accused is what you believe was the provocation, if you find
there was any provocation, and what was the act - what was
the degree of violence of the act; because you will have to
decide if you think that there was provocation whether the act
was one of revenge - which would amount to murder - or an
act done in the heat of the moment, which reduces the crime
to manslaughter. To take a silly example - if someone steps
on the toe of another deliberately, and the other person hits
him across the face, you may say, 'Well, he was provoked into
doing it'. But if, when his toe is stepped on, he draws his
revolver and shoots the person who steps on his toe, I doubt
whether you would think that that was sufficient provocation
to reduce the crime of murder to manslaughter. That is why
you have got to look at the acts which you may think amount
to provocation and look at what was done in order to decide
whether what was done was retaliation - which is murder - or
whether it was done under such stress as to amount to
manslaughter." (at p609)
10. The judge devoted a considerable part of the summing up to indicating
available criticisms of the applicant's evidence, with
constant emphasis upon
the need for the jury to believe what he had said in his statement in the
Court and on several occasions
counselling them to look for corroboration of
parts of that statement. The judge said:
"...and you then come back once again to the question -At another point, the judge said:
'Did she so provoke him as to reduce this from murder to
manslaughter?'
Well, one of the things of course that you will do is that
you will consider what he said when he first spoke to other
people and what he has said to you, because you have to
decide whether what he has said to you could reasonably
possibly be true. If you believe that he is not telling you the
truth, then you may find it difficult to find anything other
than that he intended to kill her and that he was not
sufficiently provoked for it to amount to manslaughter."
"If, of course, you don't believe she said what he said sheAfter discussing the applicant's evidence as to the events of the morning of the killing, the judge said:
said on the last day about screwing everyone in the street, if
you don't believe that provoked him into killing her, do you
believe that in fact it was because she wanted a divorce,
because he says she wanted more money than he was able to
give her?"
"You will doubtless find that such things would not
provoke a reasonable man to inflict the injuries which this
man inflicted upon his wife and is not enough provocation
sufficient to reduce murder to manslaughter." (at p610)
11. Of course, if a jury does not believe the account of the accused of the
matters which are suggested to constitute provocation,
it may be said that the
Crown has satisfied the onus of establishing that the killing was unprovoked.
But their function is not
merely to weigh the accused's credit. If the
accused's account is a reasonably possible account - and that is the first
step they
must take - they must in substance be satisfied beyond reasonable
doubt that those events did not happen. Disbelief of the accused
may not in
all circumstances compel that satisfaction to the requisite degree. Thus, the
continual emphasis in this summing up
upon criticism of the accused's
statement and the need to believe it, at least tended to give the impression
that the accused bore
an onus of in fact establishing those events. (at p610)
12. In making these observations upon the summing up, I am not unmindful of
the considerable difficulty faced by a trial judge
in ensuring, on the one
hand, that the onus is properly expressed and, on the other, that the jury are
assisted in their difficult
task of examining the facts in relation to each
necessary ingredient of operative provocation. But, allowing for the
difficulty,
I am clearly of opinion that this summing up failed properly to
instruct the jury as to the onus of proof, if the possibility of
provocation
reasonably appeared. For this reason, being of the view that provocation was
open upon the facts of the case, the conviction
for murder cannot stand. (at
p611)
13. Having reached that conclusion, it is unnecessary for me to deal with the
other submissions. No doubt for the future, having
regard to this Court's
decision in Johnson v. The Queen [1976] HCA 44; (1976) 136 CLR 619 , the place of
proportionality in provocation
will be
clearly left to a jury. It might not be
out of place,
however, for me to remark that the antithesis of "provocation"
and
"retaliation"
does not seem apt in explaining the legal situation
to a
jury. It may be correct on an occasion when there is a long
interval of
time
between the acts said to be provocative and the
killing that the latter wears
the aspect of cold-blooded retaliation
rather
than hot-blooded response. But
in a case such as the
present the antithesis - and, indeed, the emphasis on a
cooling off
period
- would seem to me more to confuse than to enlighten.
(at
p611)
14. There remains the question whether there should be a new trial or whether
we should adopt the course taken in Johnson v. The
Queen. The Crown was asked
to indicate whether, in the event that the Court was of opinion that the
conviction for murder could
not stand, it would insist upon a new trial. We
have been informed that, in the circumstances of the case, the Crown does not
do
so. Accordingly, in my opinion, the conviction for murder should be set
aside and a conviction for manslaughter substituted, there
being no basis on
which the accused could be acquitted. (at p611)
GIBBS J. The applicant was convicted of the murder of his wife. He now seeks
special leave to appeal from the judgment of the
Court of Criminal Appeal of
South Australia which dismissed an appeal from his conviction (1976) 13 SASR
284 . (at p611)
2. At the trial the applicant did not dispute that he had killed his wife.
She died as a result of injuries received when, using
considerable force, he
struck her a number of blows to the head and neck with a piece of iron piping.
His case was that the killing
was provoked and that the proper verdict was
guilty of manslaughter. On the application before us it was conceded that on
the evidence
it was open to the jury to find the applicant guilty of murder.
It was, however, submitted that the learned trial judge (Mitchell
J.) had
misdirected the jury, and that for that reason there had been a miscarriage of
justice. (at p612)
3. The summing up was said to be defective in three respects. First, it was
submitted that the law as to provocation was not adequately
explained to the
jury. It was contended that the effect of the summing up was to tell the jury
that it is a separate and distinct
element of provocation that the acts of the
accused ("the retaliation") should have been proportionate to the provocation
offered
by the deceased. If the learned trial judge did instruct the jury to
that effect, her direction would have been erroneous. The law
on that question
is now established by the decision of this Court in Johnson v. The Queen
[1976] HCA 44; (1976) 136 CLR 619 .
Alternatively it
was submitted that the learned trial
judge suggested to the jury that they should consider
whether the retaliation
was proportionate
to the provocation only for the limited purpose of deciding
whether there was time for
the applicant's passion
to cool. Again it
would
have been erroneous to tell the jury that the relationship of the retaliation
to
the provocation should
be considered for
so limited a purpose. The law on
this matter generally is sufficiently discussed in Johnson
v. The Queen.
Secondly,
it was submitted
that the learned trial judge instructed the jury
inadequately as to the onus of proof.
There is of course no doubt
that in
South
Australia, where the rules of the common law on this matter remain
unaffected by statute,
the burden of proving beyond
reasonable
doubt that the
act which caused the death was unprovoked lies on the Crown. The submission
made on behalf of the applicant
was
that this was not made clear to the jury.
Finally, it was argued that the summing up was unbalanced
and unfair and did
not
adequately
present the case for the defence of the applicant. No objection
was taken to the summing up at
the trial on these, or
indeed on
any, grounds,
but for reasons which I am about to give I do not find it necessary to analyse
the
summing up for the purpose
of
deciding whether it contained any of the
defects which counsel for the applicant submits will be found
in it. (at
p612)
4. It is now well settled that at common law homicide will not be extenuated
to manslaughter by reason of the fact that the act
which caused death was done
in the heat of passion, involving loss of self-control, caused by provocation,
unless the provocation
was sufficient to make a reasonable person do what the
accused did. In considering a question of provocation, it is necessary to
apply both a subjective and an objective test - did the provocation in fact
cause the accused to lose his power of self-control,
and could a reasonable
person so provoked have lost his self-control and acted as the accused did? I
have throughout this judgment
referred to a "reasonable person", in conformity
with the usage of many of the authorities, but in this context a "reasonable
person"
obviously does not mean one who acts reasonably, but one who has
reasonable powers of self-control, and the expression "ordinary
person" may be
preferable. Although the onus of establishing that the killing was not
provoked lies on the Crown, it is a question
for the decision of the judge
whether there is evidence upon which a jury could reasonably return a verdict
of manslaughter on
the ground of provocation, and it is established that a
trial judge should withdraw an issue of provocation from the jury if the
evidence could not reasonably support the conclusion that the provocation was
of such a character as could have deprived a reasonable
person of the power of
self-control to such an extent as to lead him to do what the accused did. In
Holmes v. Director of Public
Prosecutions (1946) AC 588, at p 597 , Viscount
Simon said:
"In dealing with provocation as justifying the view that theThat passage has been cited with approval again and again, in England and in Australia, and is supported by the views expressed recently in this Court in Johnson v. The Queen. In applying the test there is, however, a practical difference between the approach of a trial judge and that of an appellate court. "A judge is naturally very reluctant to withdraw from a jury any issue that should properly be left to them and he is therefore likely to tilt the balance in favour of the defence. An appellate court must apply the test with as much exactitude as the circumstances permit": Lee Chun-Chuen v. The Queen (1963) AC 220, at p 230 . (at p614)
crime may be manslaughter and not murder, a distinction
must be made between what the judge lays down as matter of
law, and what the jury decides as matter of fact. If there is
no sufficient material, even on a view of the evidence most
favourable to the accused, for a jury (which means a
reasonable jury) to form the view that a reasonable person so
provoked could be driven, through transport of passion and
loss of self-control, to the degree and method and continuance
of violence which produces the death it is the duty of the
judge as matter of law to direct the jury that the evidence
does not support a verdict of manslaughter. If, on the other
hand, the case is one in which the view might fairly be taken
(a) that a reasonable person, in consequence of the
provocation received, might be so rendered subject to passion or loss
of control as to be led to use the violence with fatal results,
and (b) that the accused was in fact acting under the stress of
such provocation, then it is for the jury to determine whether
on its view of the facts manslaughter or murder is the
appropriate verdict."
5. The question then arises in the present case whether a jury would have
been justified in forming the view that the provocation
offered to the
applicant could have led a reasonable person to the sort of violence which the
applicant in fact used. The version
of facts most favourable to the applicant
was that which he himself gave in his unsworn statement from the dock. The
statement
is a long one and it is unnecessary to attempt to repeat the effect
of all that the applicant said about his relationship with his
wife before
21st August 1975, the day that she was killed. The applicant was born in Italy
in 1926 and has lived in Australia since
1952. He married the deceased in
1957. She was about fifteen years younger than he. They had three children. In
1975 the applicant
visited Italy for a month. On his return he found his wife
indifferent to him. During a period of more than a month before 21st
August
she refused sexual intercourse, although she gave the state of her health as
the reason for that. She also frequently told
him that she had ceased to love
him and planned to leave him. This upset him greatly and during this period he
frequently pleaded
and expostulated with her. On the night of 20th August he
talked with her throughout most of the night praying and begging her not
to
leave. On the following morning he resumed this conversation in the bedroom of
their home. At this point it is desirable to
give in his own words his account
of what occurred:
"She said 'Mick, don't you understand? I don't want toIt should be explained that it appears from one of the photographs exhibited in evidence that the telephone was attached to a cord which plugged into a socket and that the plug had been pulled out. The photographs that the deceased produced and threw at her husband were photographs of the deceased herself; most of them showed her naked, and in some of them she was posed in a way that was apparently intended to be provocative, in a different sense of that word. At the trial the applicant admitted that he himself had taken some of those photographs, but he denied that he had taken them all. (at p615)
look at you any more. I'm not going to stop with you.'
I said 'Kay, this is no bloody good to do these sort of
things. All the people around here will make a very bad
name.'
She said 'I don't care about these other people around here.'
I then went to caress her.
As I went near her she said 'Don't come near me - I'll
scratch your eyes out.'
She grabbed at me and I pushed her away.
She said 'Don't you understand. I don't love you any
more, I don't want to look at your face any more. Don't you
understand I've been enjoying myself screwing with
everybody on the street. You fucking bastard. You
understand that all right?'
At this point she took the photographs from her drawer
and she said 'If you want to look at me, look at the pictures'
and threw them at me.
She was very angry.
When she said these things I became very mad.
I said 'Why have you done this? You promised you would
never do it.'
I said 'Kay, why have you done this to me?' and I started
to cry.
When I was crying she was laughing at me and she said
'Get out you black bastard.'
She then threw the telephone at me.
I then lost control and I remember going out to the back of
the house.
I went outside on the back porch.
I picked up a piece of pipe.
It was bent.
I went back inside the house.
I went back into the room.
I had the pipe in my hand.
She was seated on the bed.
I came in and I said 'Is this what you want? You force me
to do it.'
When she saw me she said 'I'm not scared of you, you
fucking bastard.'
I then hit her.
I lost control and hit her again.
I didn't grab her by the neck or anything.
I can't remember grabbing her chain.
I can't remember how many times I hit her.
It was more than once.
I picked up the photographs from the floor.
I pulled the door shut but I don't remember locking it.
I got into the car and went to Lenzi's place.
Somewhere between leaving the house and arriving at
Lenzi's I threw the pipe away.
I went to Lenzi's first because I wanted him to look after
the children.
After I spoke to Lenzi I went to the police."
6. The statement made by the applicant suggests that it was the fact that the
deceased threw the telephone at him that finally
caused him to lose control.
There is no evidence that the telephone hit the applicant or that the deceased
offered him any other
violence. However, it is no doubt right to infer that
the throwing of the telephone was only the last straw that caused the
applicant's
control to collapse. In any case, in deciding whether there is
sufficient evidence of provocation, it is necessary to have regard
to the
whole of the deceased person's conduct at the relevant time, for acts and
words which considered separately could not amount
to provocation may in
combination, or cumulatively, be enough to cause a reasonable person to lose
his self-control and resort
to the kind of violence that caused the death.
Everything that the deceased said and did on 21st August must therefore be
considered
in deciding whether there was provocation. (at p616)
7. In Holmes v. Director of Public Prosecutions (1946) AC 588 the House of
Lords authoritatively expounded the rules of the common
law on the question
whether provocation can be constituted by "mere words". At the time when that
case was decided it was already
settled that insulting or abusive language
(not being menace of immediate bodily harm) could not reduce murder to
manslaughter
(1946) AC, at p 599 . The law was not so clear as to whether
words used as a means of conveying information might constitute provocation.
As to this, their Lordships held that a confession of adultery - even a sudden
confession - without more is never sufficient to
reduce to manslaughter an
offence which would otherwise be murder (1946) AC, esp at p 600 . This rule
has been affected by statute
in some places but it is still the rule of the
common law: see Phillips v. The Queen (1969) 2 AC 130, at p 137 and Reg. v.
Tsigos,
per Walsh J. (1964-65) NSWR 1607, at p 1610 . Their Lordships added
that "in no case could words alone, save in circumstances of
a most extreme
and exceptional character, so reduce the crime. When words alone are relied
upon in extenuation, the duty rests
on the judge to consider whether they are
of this violently provocative character, and if he is satisfied that they
cannot reasonably
be so regarded, to direct the jury accordingly." (at p616)
8. In the light of this authority, I find it impossible to hold that the
evidence in the present case raised an issue of provocation
fit to be
considered by a jury. It was not open to a jury to find that a reasonable man
could have been provoked by the words and
actions of the deceased to such an
extent as to use the violence to which the applicant resorted. The question
has to be decided
in the light of contemporary conditions and attitudes, for
what might be provocative in one age might be regarded with comparative
equanimity in another, and a greater measure of self-control is expected as
society develops. The words of the deceased on 21st
August, although
calculated to disturb or enrage, were not of that "violently provocative"
character which might lead a reasonable
man to lose his self-control and
resort to violence causing death - a character which words alone would possess
only in an extreme
and exceptional case. According to the applicant's
statement (which it must be assumed would be accepted), the deceased repeated,
what she had previously been saying, that she did not love her husband and
intended to leave him; she admitted that she had promiscuously
committed
adultery, and she uttered some vulgar abuse. The confession of adultery may
have been the more disturbing because of
the production of the photographs,
but the jury could not have disregarded the fact that the applicant himself
had taken some of
those photographs. The only act of violence committed by the
deceased was the throwing of the telephone, which was not likely to
cause
serious harm or apprehension to the applicant, and so far as the evidence
discloses did not do so. Accepting the view of
the facts most favourable to
the applicant, the words and acts of the deceased were not such as could have
caused a reasonable
man to act as the applicant did. (at p617)
9. Since the issue of provocation should not have been left to the jury, any
misdirection on that issue could not have caused
a miscarriage of justice: see
Lee Chun-Chuen v. The Queen (1963) AC, at p 235 . The applicant was rightly
convicted of murder.
Special leave to appeal should in my opinion be refused.
(at p617)
STEPHEN J. The grounds for this application for special leave to appeal
disclose little that is debatable in point of law. The
applicant's killing of
his wife was not in issue; in his unsworn statement made to the jury he
described how he came to kill her.
That the killing was felonious is also not
in issue, but it is said that her words and conduct amounted to provocation
such as
would serve to reduce the killing from murder to manslaughter. (at
p617)
2. Were the issue of provocation one proper to be left to the jury I would
agree with all that is said by the Chief Justice concerning
the learned trial
judge's charge to the jury; it was such as would call for the grant of special
leave and, in the light of the
attitude of the Crown, the substitution of a
conviction for manslaughter for that of murder. If, on the contrary, no such
issue
should have been left to the jury no ground would then exist for
disturbing the jury's verdict, despite the defects in the charge.
(at p618)
3. I can confine myself to the applicant's unsworn statement, which is the
version of the facts most favourable to his case and
which, for present
purposes, I assume that a jury would have accepted. (I do not stay to consider
whether the jury could in fact
accept that part of the applicant's statement
which related to the production by his wife of photographs of herself; it
plays,
after all, a relatively minor role in this question of provocation).
After describing in detail the rather troubled course of his
married life, in
which he featured as the industrious, generous and forgiving spouse and his
wife as his inconstant, ungrateful
and spendthrift partner, the applicant
comes to the events of the morning on which he killed her and of the preceding
night. She
having, for some considerable time before that, refused him
intercourse and having told him she was leaving him, he spent, he says,
much
of the night before seeking a reconciliation, begging her not to leave, but
all to no end. He did not sleep at all and had
been humiliated by her cold
rejection of him. It may be inferred that he was in a strained and highly
emotional state next morning,
exhausted by his sleepless night and frantic at
the imminent prospect of his wife's departure. (at p618)
4. In those circumstances, when he renewed his plea to her to stay and sought
to approach her to caress her, she threatened to
scratch his eyes out if he
did and told him in the coarsest, and no doubt the most provocative, of
language that she had been having
intercourse "with everyone on the street";
she threw at him photographs of herself which the jury might have understood
to have
been taken, unknown to the applicant, by another man, and to be
obscene, inviting him to look at them if he wanted to look at her.
He "became
very mad", asked her why despite past promises she had done "this" and wept,
but she merely laughed, called him a "black
bastard" and threw a telephone at
him. He then "lost control", went outside, returned with a length of pipe and,
after exchanging
a few words, when she swore at him again, hit her a number of
times. As a result she died. (at p618)
5. It is essentially upon what the deceased was thus described as saying and
doing that the case of provocation is founded. Minds
may well differ, as they
have in this case, upon what is sufficient to constitute provocation when what
is in question is a combination
of words describing past conduct, words of
abuse and some physical violence. Here the element of physical violence was
relatively
slight, there is in fact no suggestion that the applicant was
struck by the telephone. The element of abuse I can only regard as
of little
weight; in part it was common, meaningless obscenity, only the reference to
colour possibly having a sting when spoken
by this Australian wife to her
Italian husband. There remains the admission, or rather the boast, about
having had intercourse
with everyone on the street. This is to be judged in
the context of and cumulatively upon both the other two matters and the events
leading generally up to the killing. The question to be asked is whether it
would have been open to a jury to conclude on this
material that a reasonable,
or ordinary, man might, in such circumstances suffer such a loss of
self-control as to act as the applicant
did. It is clear, as the applicant
said, if believed, that this in fact happened to him; it is the objective
test, what effect
it might have upon an ordinary man, that is in question. (at
p619)
6. In answering this question one bears in mind that no mere confession of
adultery, however sudden, suffices (Holmes v. Director
of Public Prosecutions
(1946) AC 588, at p 600 ). Words alone, whether in themselves insulting or
obscene or which recount a necessarily
provocative event or fact, would, as
Viscount Simon there said, have to involve "circumstances of a most extreme
and exceptional
character" if they were to reduce murder to manslaughter. (at
p619)
7. The deceased in this case, the jury might believe, did not simply admit to
an adulterous relationship, she boasted of wholesale
promiscuity with the men
in the suburban street where she and her husband lived and had brought up
their family; she showed no
contrition although, according to the applicant,
she was a much loved and well treated wife and the mother of his children; she
combined her boast with abuse and with some show of violence; all this despite
night-long and abject avowals of devotion by the
applicant. If the jury were
to accept this version of the matter I cannot for myself say that they might
not properly conclude
that an ordinary man might be so provoked as to lose
self-control and act as the applicant said he did. (at p619)
8. It follows from this conclusion that provocation was an issue properly
left to the jury. In these circumstances, as I have
already said, I can only
regard the charge to the jury as defective and this for the reasons expressed
in the judgment of the Chief
Justice. (at p619)
9. In view of the attitude of the Crown no new trial need be ordered; instead
the appeal may be allowed, a conviction of manslaughter
being substituted for
that of murder. (at p619)
MASON J. In his summing up to the jury in Reg. v. Rothwell Blackburn J. said
(1871) 12 Cox CC 145, at p 147 :
"As a general rule of law, no provocation of words will
reduce the crime of murder to that of manslaughter, but
under special circumstances there may be such a provocation
of words as will have that effect; for instance, if a husband
suddenly hearing from his wife that she had committed
adultery, and he having had no idea of such a thing before,
were thereupon to kill his wife, it might be manslaughter." (at p620)
2. Subsequently in Holmes v. Director of Public Prosecutions (1946) AC 588 ,
the House of Lords decided that a sudden confession
of adultery by a wife
could not amount to provocation. Viscount Simon (with whom the other members
of the House of Lords agreed)
said (1946) AC 588 at p600 :
"... the duty of the judge ... is to tell the jury that a
confession of adultery without more is never sufficient to
reduce an offence which would otherwise be murder to
manslaughter, and that in no case could words alone, save in
circumstances of a most extreme and exceptional character,
so reduce the crime. When words alone are relied upon in
extenuation, the duty rests on the judge to consider whether
they are of this violently provocative character, and if he is
satisfied that they cannot reasonably be so regarded, to direct
the jury accordingly." (at p620)
3. The precise point on which the House of Lords disagreed with Blackburn J.,
that is, whether a sudden confession of adultery
is enough in itself to
constitute provocation, we may put to one side because what the wife said to
the applicant in the present
case went far beyond that. What is important for
present purposes is the acknowledgment by Blackburn J. that "in special
circumstances"
and by Viscount Simon that "in circumstances of a most extreme
and exceptional character" words may amount to provocation reducing
the crime
from murder to manslaughter. (at p620)
4. There is no absolute rule against words founding a case of provocation.
The existence of such an absolute rule would draw an
arbitrary distinction
between words and conduct which is insupportable in logic. No doubt
provocative acts justifying the reduction
of murder to manslaughter are more
readily imagined and more frequently encountered than provocative words which
justify the same
result. Violent acts, rather than violent words, are more
likely to induce an ordinary person to lose his self-control. And a case
of
provocation by words may be more easily invented than a case of provocation by
conduct, particularly when the victim was the
wife of the accused. There is,
therefore, an element of public policy as well as common sense in requiring
the close scrutiny of
claims of provocation founded in words, rather than
conduct. (at p621)
5. The observations of Blackburn J. and Viscount Simon to which I have
referred are salutary warnings against a too ready acceptance
of claims of
provocation based on words alone. They emphasize the necessity for compliance
with the demanding requirements which
underlie the concept of provocation. (at
p621)
6. In Parker v. The Queen Dixon C.J. said [1963] HCA 14; (1963) 111 CLR 610, at p 630 : "I
do not think that the criteria of
'provocation' should
nowadays be expressed
in terms directed
to duels and personal quarrels among men who ordinarily bear
arms
or to violence produced
by violence." On appeal [1964] UKPCHCA 1; (1964) 111 CLR 665;
(1964) AC 1369 the Judicial Committee held that
the existence of an intention
to kill
does not necessarily
negative a case of provocation reducing murder to
manslaughter, although
their Lordships acknowledged that
existence of a
premeditated
intention so to do before the provocation occurred would have
that
effect. It was decided that in the
circumstances of the case
the interval
of time between the provocation and the act causing death
was not fatal to the
case of provocation.
(at p621)
7. Their Lordships went on to say (1964) 111 CLR, at p 679; (1964) AC, at p
1389 :
"It was for the jury to determine what was the 'act causing
death': it was for them to determine whether it was done
suddenly in the heat of passion caused by provocation and
without intent to take life. It was for them to consider the
nature and duration of the provocation and whether it was
reasonably calculated to deprive an ordinary person of the
power of self-control and whether the appellant was so
deprived and whether he continued to be so deprived at the
time that he committed the act causing the death of the
deceased. The jury might well have taken the view that the
appellant was tormented beyond endurance. His wife,
whom he loved, was being lured away from him and from
their children despite protests, appeals and remonstrances.
In open defiance of his grief and his anguish his wife
was being taken by one who had jeered at his (the
appellant's lesser strength and who had spoken with unashamed
relish of his lascivious intents. Though there was an
interval of time between the moment when the appellant's wife
and the deceased went away and the moment when the
appellant overtook them and then caused the death of the
deceased a jury might well consider, and would be entitled
to consider, that the deceased's whole conduct was such
as might 'heat the blood to a proportionable degree of
resentment, and keep it boiling to the moment of the fact'
(see East's Pleas of the Crown. vol. 1, p. 238)." (at p621)
8. The questions for the jury here, then, were whether the acts relied upon
by the applicant were reasonably calculated to deprive
an ordinary man of the
power of self-control, whether they in fact did so deprive the applicant and
whether he continued to be
so deprived at the time he struck the deceased with
the pipe. The question for us is whether it can be said that no reasonable man
could answer these questions favourably to the applicant in light of the
account of the relevant events given by him at the trial.
For my part, I feel
some diffidence in predicting with assurance how an ordinary man placed in the
applicant's situation might
react if he were confronted with the occurrences
on which the applicant relied. I am not prepared to say that no reasonable man
could conclude that an ordinary man would be so deprived of his power of
self-control by what occurred as to form an intention
to kill or do grievous
bodily harm to his wife. (at p622)
9. If the applicant's version of events is to be believed, and we must make
this assumption, his wife's remarks went far beyond
a confession of adultery,
even a sudden confession of adultery. What she said and did is related in the
judgment of Gibbs J. and
I see no need to examine in any detail the precise
effect of her remarks or indeed to characterize them by an adjectival
description
except to say that to my mind they amount to words which are
"violently provocative in character". What is more, they were in my
opinion so
provocative that they might well so enrage an ordinary man beyond endurance as
to goad him into impulsive action of
a most drastic kind. Beyond expressing
this conclusion I see no advantage in speculating upon the particular feelings
or emotions
which the wife's words and conduct might inspire. It is enough to
say that in my opinion a jury could reasonably take the view that
the words
and conduct were so provocative as to cause an ordinary man to lose his power
of self-control and that they had this
effect in the instant case. (at p622)
10. Accordingly, the issue of provocation was a proper one to go to the jury.
Having arrived at this conclusion I agree with the
Chief Justice in thinking
that the summing up was defective and that in other circumstances a new trial
should be ordered. However,
it is appropriate in this case that in lieu of an
order for a new trial a conviction for manslaughter should be substituted for
the conviction for murder. The Solicitor-General for South Australia has
raised no objection to our taking this course in the event
that the Court
finds the summing up to be defective. (at p622)
11. In the result, I would grant special leave to appeal, allow the appeal
and substitute a conviction of manslaughter for that
of murder. (at p623)
MURPHY J. After a jury trial before Mitchell J. in the Supreme Court of
South Australia, the applicant, Michele Moffa, was convicted
of murdering his
wife. He appealed to the Supreme Court (Criminal Appeal jurisdiction) on the
ground that the trial judge had not
directed properly on the issue that there
was provocation reducing the murder to manslaughter. His appeal was rejected
and he now
seeks special leave to appeal to this Court. (at p623)
2. The accused admitted killing his wife, but claimed he did so under
provocation. In his lengthy statement from the dock, he
outlined his history.
He was born in Italy in 1926, had an early marriage to an Italian (which ended
in divorce) and migrated to
Australia in 1952. He married the deceased (who
was born in Australia) about seventeen years ago and they had three children.
He
worked hard as a builder. His marriage was happy, then there were several
separations and reconciliations. After he spent a month
in Italy in 1975 with
his dying mother, his wife ceased to show any affection for him and, for a
month before he killed her, repeatedly
told him she intended to leave him. On
the morning of 21st August 1975, after he had pleaded with her all night to
remain, she
said she was finished with him and repulsed his attempts to caress
her. She said, "Don't come near me. I'll scratch your eyes out".
She grabbed
at him and he pushed her away. She said, "Don't you understand, I don't love
you any more. Don't you understand I've
been enjoying myself screwing with
everybody on the street. You fucking bastard. You understand that all right".
She then said,
"If you want to look at me, look at the pictures" and threw
some nude photos of herself at him. He became "very mad", remonstrated
with
her and began crying. She laughed at him, said, "Get out you black bastard",
and threw the telephone at him. He lost control,
went to the back of the
house, picked up a piece of iron pipe, came back and said to her, "Is this
what you want - you force me
to do it". She said, "I'm not scared of you, you
fucking bastard". He then hit her, lost control and hit her again. He
apparently
hit her a number of times, but could not remember how many. (at
p623)
3. The applicant's grounds are that:
(1) The trial judge did not give a clear and unequivocal direction that the
onus was on the prosecution to prove beyond reasonable
doubt that the killing
was unprovoked;
(2) The trial judge wrongly directed that the response by the accused must
be a reasonable or proportional response to the provocation.
Alternatively,
the trial judge wrongly directed that proportionality of response was to be
regarded only in relation to whether
there was time for the applicant to
regain his self-control;
(3) The trial judge was unfair in her treatment of the applicant's claim of
provocation. (at p624)
4. The prosecution contended that there was no evidence of provocation and
any error by the trial judge was immaterial because,
firstly, the substantial
provocative conduct alleged here was the use of mere words which is not
sufficient and, secondly, the
alleged provocative conduct was not enough to
cause a reasonable (or ordinary) man to do as the applicant did (the
"reasonable"
or "ordinary" man test, often referred to as the objective test).
(at p624)
5. COMMON LAW PROVOCATION. In South Australia, the law of provocation is
entirely decisional. We are not bound by statutory directions
as we were in
Johnson v. The Queen [1976] HCA 44; (1976) 136 CLR 619 . Provocation is a defence to murder
(and arises when the
elements of murder
are present). The defence is that
the
accused killed because the deceased's provocative conduct caused him to
lose
self-control.
This basic formulation of the defence
is often referred to as
the subjective test (the behaviour of the accused
is considered without
reference to objective standards).
(at p624)
6. Provocative conduct has generally been regarded as involving physical
violence. The refusal to recognize provocation by words
or gestures is no
longer justifiable, although it may have been on public policy grounds when
the practice of carrying weapons
and duelling persisted. (at p624)
7. Rulings on whether certain words amount to provocation reflect the
attitudes of society, or even of particular judges. For
example, a sudden
confession of adultery was sufficient provocation in Reg. v. Rothwell (1871)
12 Cox CC 145 , but no in Holmes
v. Director of Public Prosecutions (1946) AC
588 . Such rulings are a by-product of the reasonable man test. (at p624)
8. The "reasonable" or "ordinary" man test. This test requires the accused's
behaviour to be of the standard which a reasonable
or ordinary man would
exhibit. This is used in addition to the subjective test. (at p624)
9. Provocation was originally treated as a question of law but, for some time
before the invention of the reasonable man test,
it was treated as a question
of fact for the jury (see R. v. Lynch [1832] EngR 505; (1832) 5 C & P 324 (172 ER 995) ; R. v.
Hayward [1835] EngR 229; (1833) 6
C &
P 157 (172 ER 1188) ; R. v. Thomas (1837) 7 C & P 817
[1837] EngR 242; (173 ER 356) ; Russell on Crime, 12th ed. (1964), Ch 29). The
test appeared
at
least by 1837 when Coleridge J. stated:
"Though the law condescends to human frailty, it will notIts invention, however, is usually credited to Keating J. who directed that:
indulge human ferocity. It considers man to be a rational
being and requires that he should exercise a reasonable
control over his passions." (Reg. v. Kirkham
(1837) 8 C & P 115, at p 119 [1839] EngR 273; (173 ER 422, at p 424).)
"There must exist such an amount of provocation as would338 .)
be excited by the circumstances in the mind of a reasonable
man, and so as to lead the jury to ascribe the act to the
influence of that passion." (Reg. v. Welsh (1869) 11 Cox CC 336, at p
10. OBJECTIONS TO THE TEST. The test cannot withstand critical examination.
It is not clear whether the reasonable or ordinary
man, if he were subject to
the same provocation, would (or might) lose control, or would have lost
control to the extent of killing
the deceased, or would have lost control to
the extent of killing in the manner he did. Is he a complete stranger
subjected to
the provocative conduct, or a person in the same circumstances as
the accused? To be in the same circumstances, he should be taken
to be in the
same relationship with the deceased (in this case, a marital relationship) and
must have experienced the relationship.
In a case such as this, he should have
lived the life of the accused, or it would be impractical to speak of what a
reasonable
or ordinary man would do in the circumstances. For example, it
might have been an unbearable insult to a person of the accused's
origin to be
called a "black bastard". Once the full circumstances are taken into account,
the objective test disappears because
it adds nothing to the subjective test.
For this reason, those who adhere to the objective test have rigidly excluded
individual
peculiarities of the accused (e.g. low intelligence, impotence,
pugnacity). (at p625)
11. The objective test is not suitable even for a superficially homogeneous
society, and the more heterogeneous our society becomes,
the more
inappropriate the test is. Behaviour is influenced by age, sex, ethnic origin,
climatic and other living conditions, biorhythms,
education, occupation and,
above all, individual differences. It is impossible to construct a model of a
reasonable or ordinary
South Australian for the purpose of assessing emotional
flashpoint, loss of self-control and capacity to kill under particular
circumstances. In the Northern Territory Supreme Court, Kriewaldt J. refused
to apply the test to a tribal aborigine and used the
standard of the accused's
tribe (see Colin Howard, "What Colour is the 'Reasonable Man'?" (1961)
Criminal Law Review, p. 41). The
Judicial Committee of the Privy Council
stated in Kwaku Mensah v. The King (1946) AC 83, at p 93 that the test for
provocation
was that of "the ordinary West African villager" and that "on just
such questions...the knowledge and commonsense of a local jury
are invaluable"
(see also Rankin (1966) 60 QJPR 128 ). The same considerations apply to
cultural sub-groups such as migrants. The
objective test should not be
modified by establishing different standards for different groups in society.
This would result in
unequal treatment. (at p626)
12. The objective test should be discarded. It has no place in a rational
criminal jurisprudence. It has been subjected to widespread,
severe and, in my
opinion, valid criticism (see Russell on Crime, 12th ed. (1964), Ch.29;
Samuels, "Excusable Loss of Self Control
in Homicide", Modern Law Review, vol.
34 (1971), p. 163; Morris and Howard, Studies in Criminal Law (1970); Smith
and Hogan, Criminal
Law, 2nd ed. (1969), p. 215; Brown, "The Ordinary Man in
Provocation: Anglo-Saxon Attitudes and Unreasonable Non Englishman"
International
& Comparative Law Quarterly, vol. 13 (1964), p. 223; Glanville
Williams, "Provocation and the Reasonable Man", (1954) Criminal
Law
Review, p.
740). It received only a partial defence by Dr. Ashworth who concedes that the
accused's personal characteristics
should
be considered by the court, but not
individual peculiarities bearing on his level of self-control ("The Doctrine
of Provocation",
Cambridge Law Journal, vol. 35 (1976), p. 292). I share the
view of Lord Simonds that the distinction is too refined (Bedder v.
Director
of Public Prosecutions (1954) 1 WLR 1119; (1954) 2 All ER 801 ), but the
insistence on the rigid application of the test
leads to what Dr. Glanville
Williams observed: "It is difficult to see how this test, intelligently
understood and applied, can
ever give rise to an acquittal of murder."
("Provocation and the Reasonable Man", p. 750). In such an application of the
test,
the ordinary or reasonable man simply does not kill if he is provoked.
(at p627)
13. Much of the opposition to discarding the objective test is based on the
assumption that this will undermine the social fabric
and cheapen the value of
human life. It is easily overlooked (see Brown, loc cit., p. 230) that the
defence is only to murder,
and its success results in a conviction for
manslaughter (for which the maximum punishment is currently imprisonment for
life).
The law of provocation is concerned with unreasonable behaviour,
killing committed by a person who has lost self-control and temporarily
deserted the standards of civilized conduct. It degrades our standards of
civilization to construct a model of a reasonable or
ordinary man and then to
impute to him the characteristic that, under provocation (which does not call
for defence of himself or
others), he would kill the person responsible for
the provocation. (at p627)
14. TAKING THE ISSUE OF PROVOCATION FROM THE JURY. It has been said of the
reasonable man test that:
"The most disagreeable consequence of its application over
the forty year period prior to the Homicide Act has been its part
in the substantial restoration of the early position where
provocation was entirely a matter of law for the judge. For a
feature of the modern common law doctrine has been the
Bench's readiness to exclude from the jury evidence of
provocation which it regards as insufficient to reduce the crime
to manslaughter." (Brown, loc. cit., p. 206). (at p627)
15. The Full Court of the Supreme Court of South Australia rejected the
appeal on the basis that, even if the directions on provocation
were wrong,
the trial judge should have directed the jury that in law there was no
evidence of provocation fit for the jury's consideration.
This was an
application of the objective test which, as I have said, has no place in
provocation. (at p627)
16. The trial judge was correct to leave the question of provocation with the
jury. Even if the objective test were applied, the
accused's statement could
be regarded by the jury as amounting to: "I am an ordinary reasonable man. I
killed my wife only because
she provoked me so much that I lost self-control."
This is evidentiary material that, if accepted, satisfies the objective test.
If the judge decided that no ordinary or reasonable man could (or would) have
so acted, she would be in effect forming an opinion
that the accused is not an
ordinary or reasonable man, and treating this opinion as conclusive. To take
away the issue of provocation
in these circumstances would be to usurp the
function of the jury. (at p627)
17. REASONABLE RETALIATION. It is not essential to the defence that there be
proportionate retaliation (a reasonable proportion)
between the killing or the
manner of killing and the provocative conduct (Johnson v. The Queen (1976) 136
CLR 619 ). Viscount Simon's
statement in Mancini v. Director of Public
Prosecutions (1942) AC, at p 9 that 'the mode of resentment must bear a
reasonable relationship
to the provocation" is not the law in South Australia.
It expresses in a different way one version of the same objective test (that
a
reasonable or ordinary man would, in the circumstances, have lost his control
to the extent of killing in the way he did). Proportionality
in the sense of
the nature or degree of the response is of course relevant to whether the
killing occurred while the accused was
out of control because of the
provocation (see Johnson v. The Queen [1976] HCA 44; (1976) 136 CLR 619 ). (at p628)
18. COOLING-OFF PERIOD. There is no requirement that there must not have been
time to cool off or regain self-control. The interval
between provocation and
the killing may, but need not, be short and I see no reason why intermediate
temporary regaining of control
should exclude the defence. These
considerations are no doubt relevant to the real question whether the killing
was done in the
passion or the fury (that is, because of loss of self-control)
brought about by the provocation. (at p628)
19. ONUS OF PROOF. The onus is on the prosecution to establish beyond
reasonable doubt that the killing was unprovoked (Woolmington
v. Director of
Public Prosecutions [1935] UKHL 1; (1935) AC 462 ). Although, as Lord Sankey said there, "It
is sufficient if the
accused raises
a doubt", it is not necessary for
the
accused to do this. The directions by the trial judge were defective in
failing
to make this
clear. The prosecution contended
that, even so, the
appeal should be dismissed as there was no substantial miscarriage
of justice.
This contention must be rejected:
"... every accused person is entitled to a trial in which theThere is no need to consider the other grounds. (at p628)
relevant law is correctly explained to the jury and the rules of
procedure and evidence are strictly followed. If there is any
failure in any of these respects, and the appellant may
thereby have lost a chance which was fairly open to him of
being acquitted, there is, in the eye of the law, a miscarriage
of justice. Justice has miscarried in such cases, because the
appellant has not had what the law says that he shall have,
and justice is justice according to law." Mraz v. The
Queen, per Fullagar J. [1955] HCA 59; (1955) 93 CLR 493, at p 514 ).
20. The conviction for murder cannot stand. The applicant's case is that he
was guilty of manslaughter only. Special leave to
appeal should be granted.
The appeal should be upheld and the conviction for murder set aside and
replaced by a conviction for
manslaughter. (at p629)
ORDER
Application for special leave to appeal granted.Appeal allowed.
Verdict of guilty of and conviction for murder and sentence thereon by the Supreme Court of South Australia set aside and in lieu of such verdict and conviction direct that a verdict of guilty of manslaughter be entered and order that the matter be remitted to that Court to be further dealt with according to law.