HIGH COURT OF AUSTRALIA
BRENNAN CJ, TOOHEY, McHUGH, GUMMOW AND KIRBY JJ
MALCOLM THOMAS GREEN v THE QUEEN (Matter No. s 172/96)
Criminal Law - Murder
(1997) 191 CLR 334
7 November 1997
Criminal Law - Murder
CATCHWORDS Criminal Law—Murder—Provocation—Notional ordinary person placed "in the position of the accused"—Whether knowledge of sexual abuse of siblings was so subjective and particular to the accused that it ought not to have been considered in assessing the capacity of unwanted sexual advances to provoke an ordinary person to form an intention to kill—Whether jury should have been addressed on the heightened significance of the deceased's conduct towards the accused—Relevance of the homosexual nature of the sexual advance. Crimes Act 1900 (NSW), s 23.
Orders
ORDER
1.Appeal allowed.
2. Order that the order of the Court of Criminal Appeal of New South Wales be set aside. In lieu thereof order that the appeal to that Court be allowed, that the conviction be quashed and that a new trial be had.
Decision
BRENNAN CJ.
The facts of this case, the relevant rulings at the trial and the reasons for judgment of the Court of Criminal Appeal are stated by McHugh J in terms which I gratefully adopt. In summary, the appellant's case at the trial was that he was so provoked by the conduct of the deceased that he lost control of himself and killed the deceased. The "defence" of provocation called for consideration of s 23 of the Crimes Act 1900 (NSW). The relevant provisions of that section read as follows:
" (1) Where, on the trial of a person for murder, it appears that the act or omission causing death was an act done or omitted under provocation and, but for this subsection and the provocation, the jury would have found the accused guilty of murder, the jury shall acquit the accused of murder and find the accused guilty of manslaughter.The meaning of s 23
(2) For the purposes of subsection (1), an act or omission causing death is an act done or omitted under provocation where:
(a) the act or omission is the result of a loss of self-control on the part of the accused that was induced by any conduct of the deceased (including grossly insulting words or gestures) towards or affecting the accused; and
(b) that conduct of the deceased was such as could have induced an ordinary person in the position of the accused to have so far lost self-control as to have formed an intent to kill, or to inflict grievous bodily harm upon, the deceased,
whether that conduct of the deceased occurred immediately before the act or omission causing death or at any previous time.
..."
Paragraph (a) of sub-s (2) requires a causal relationship between the act or omission of an accused which causes the death of the deceased and the conduct of the deceased towards or affecting the accused. The nexus between these two is the loss of self-control on the part of the accused. That loss must be "induced by" the deceased's conduct and it must cause the fatal act or omission. Paragraph (a) contains no test of proportionality between the conduct of the deceased and the act or omission which causes the death. All that is needed to satisfy par (a) is evidence that the conduct of the deceased, the accused's loss of self-control and the act or omission causing death are causally linked.
Paragraph (b), on the other hand, prescribes the nature of the conduct that amounts to provocation for the purposes of the section. It postulates the response of "an ordinary person" to the deceased's conduct as a standard to be employed in applying s 23. The standard of the "ordinary person" prescribed by par (b) is an objective standard by which to determine whether the conduct relied on by the accused could have induced the formation of an intent to kill or to inflict grievous bodily harm. For the purposes of applying this standard, the notional ordinary person is placed "in the position of the accused". In other words, the significance of the deceased's conduct is assessed by reference to its significance to the accused, and the ordinary person is notionally exposed to conduct having that significance in order to determine whether the ordinary person could have been induced thereby to form either of the prescribed intents. Paragraph (b) requires the jury to take full account of the sting of the provocation actually experienced by the accused, but eliminates from the jury's consideration any extra-ordinary response by the accused to the provocation actually experienced. Thus extra-ordinary aggressiveness or extra-ordinary want of self-control on the part of an accused confer no protection against conviction for murder.
The objective test prescribed by par (b) turns not on what the ordinary person would have done in response to the provocation experienced, but on what the ordinary person could have been induced to intend. Dependent on the circumstances of the trial, the jury may need a direction to draw their attention to the difference between "would" and "could" and will ordinarily need a direction to distinguish between what the ordinary person could have been induced to intend and what the ordinary person could have been induced to do. In the present case, for example, the jury might have been more ready to allow the possibility that an ordinary person could have been induced to intend to kill or to inflict grievous bodily harm on the deceased than to allow the possibility that an ordinary person could have been induced to batter and stab the deceased to the extent that the appellant battered and stabbed him.
Construing s 23 in the manner stated above, it operates in substantially the same way as the provisions of the Tasmanian Code were held to operate in Stingel v The Queen[1] and the way in which the common law was held to operate in Masciantonio v The Queen[2]. It has been said, albeit not in a considered judgment[3], that it is correct to interpret the phrase "in the position of the accused" consistently with the decision of this Court in Stingel. In Stingel, the Court said[4]:
"[T]he content and extent of the provocative conduct must be assessed from the viewpoint of the particular accused. Were it otherwise, it would be quite impossible to identify the gravity of the particular provocation. In that regard, none of the attributes or characteristics of a particular accused will be necessarily irrelevant to an assessment of the content and extent of the provocation involved in the relevant conduct. For example, any one or more of the accused's age, sex, race, physical features, personal attributes, personal relationships and past history may be relevant to an objective assessment of the gravity of a particular wrongful act or insult. ... As Wilson J commented in Hill[5], the 'objective standard and its underlying principles of equality and individual responsibility are not ... undermined when such factors are taken into account only for the purpose of putting the provocative insult into context'."The Court explained[6] that the ordinary person test is:
"to provide an objective and uniform standard of the minimum powers of self-control which must be observed before one enters the area in which provocation can reduce what would otherwise be murder to manslaughter. While personal characteristics or attributes of the particular accused may be taken into account for the purpose of understanding the implications and assessing the gravity of the wrongful act or insult, the ultimate question posed by the threshold objective test of s 160(2) relates to the possible effect of the wrongful act or insult, so understood and assessed, upon the power of self-control of a truly hypothetical 'ordinary person'. Subject to a qualification in relation to age ..., the extent of the power of self-control of that hypothetical ordinary person is unaffected by the personal characteristics or attributes of the particular accused. It will, however, be affected by contemporary conditions and attitudes: see per Gibbs J, Moffa[7]. Thus in Parker[8], Windeyer J pointed out that many reported rulings in provocation cases 'show how different in weight and character are the things that matter in one age from those which matter in another'." (Emphasis added.)The majority in Masciantonio (Brennan, Deane, Dawson and Gaudron JJ) said[9]:
"the question is whether the provocation, measured in gravity by reference to the personal situation of the accused, could have caused an ordinary person to form an intention to kill or do grievous bodily harm and to act upon that intention, as the accused did, so as to give effect to it."
The application of s 23 in the present case
The trust which the appellant had placed in the deceased before the deceased got into the appellant's bed, the consumption of a considerable quantity of alcohol on the night of the killing, the appellant's response to the deceased's first homosexual advance that "I'm not like this", the deceased's persistence in his homosexual advances, his grabbing and pulling of the appellant, his touching the appellant's groin and the appellant's knowledge or belief of and sensitivity to his father's sexual abuse of the appellant's sisters were all matters that were to be taken into account in determining the availability of the defence of provocation. The appellant's recollection of and sensitivity to his father's sexual abuse of the appellant's sisters ("the sexual abuse factor" as I shall call it) was relevant to the question whether the deceased's conduct had induced a loss of self-control on the part of the appellant (a question arising under par(a) of s 23(2)) and to the question of the significance of the provocative conduct to the appellant (a question arising under par (b) of s 23(2)). The sexual abuse factor was relevant to those questions because it tended to make it more likely that the appellant was more severely provoked by the deceased's unwanted homosexual advances than he would otherwise have been and thus more likely that he had been induced thereby to lose self-control and inflict the fatal blows and more likely that the appellant was so incensed by the deceased's conduct that, had an ordinary person been provoked to the same extent, that person could have formed an intention to kill the deceased or to inflict grievous bodily harm upon him.
The learned trial judge ruled against the reception of evidence of the sexual abuse factor when first it was sought to be tendered on the issue of provocation. That ruling was given on the second day of the trial. The trial judge understood that earlier decisions of the Court of Criminal Appeal required him to reject both evidence of sexual abuse of the appellant's sisters and evidence of the appellant's knowledge of that sexual abuse because subjective factors "particular to the appellant" were not relevant to his capacity to control his response to the deceased's conduct, even though those factors rendered that conduct exceptionally provocative[10]. In this ruling, his Honour did not distinguish between the significance of the deceased's conduct to the appellant and the capacity of conduct having that significance to induce an ordinary person to form an intention to kill or an intention to inflict grievous bodily harm. In consequence of this ruling, not only was evidence of the sexual abuse factor ruled to be irrelevant to the issue of provocation but counsel for the appellant was denied the opportunity to address the jury on the heightened significance of the deceased's conduct towards the appellant.
Subsequently, evidence relating to the appellant's knowledge of the sexual abuse of his sisters was admitted in order to explain or neutralise the effect of a comment allegedly made by the appellant to a Mr and Mrs Sirola on the night before the killing of the deceased. The comment was, in effect, that the appellant wanted to have somebody killed. Proof of the comment was tendered by the prosecution to show premeditation of the murder of the deceased. Evidence of the sexual abuse factor was then admitted in order to suggest that the appellant's hatred was directed towards his father, not to the deceased. His Honour's direction to the jury included the following:
" The evidence about the father's activities in relation to the sisters, and alleged sexual misconduct in relation to them, and also the evidence in relation to the father's assaults upon the wife has been brought forward and is relevant to whether, in fact, there was this so called claim of pre-meditation."When dealing with arguments that had been put to the jury on the issue of provocation, his Honour said:
"Whether or not the accused was or was not virtually 'a latent volcano' or an explosion about to happen is really not to the point. Whether or not he was sensitive or not, whether or not he was a 'volcano capable of being exploded' or whether he thought about his sisters or about his father's activities with them is not really to the point.In the Court of Criminal Appeal, the Crown rightly conceded that his Honour's rejection of evidence relating to the sexual abuse factor on the question of loss of self-control was erroneous. However, the Crown submitted that, on the facts, the appellant's reaction to the conduct of the deceased fell below the standards of self-control attributable to the hypothetical ordinary man in the position of the appellant. That submission was accepted by the Court of Criminal Appeal. That being so, the second requirement of par (b) of s 23(2) was not satisfied and there was no basis on which provocation could have warranted a verdict of manslaughter rather than murder. The proviso was applied to dismiss the appeal.
As I have said to you, ladies and gentlemen of the jury, the evidence of the accused in relation to his feelings about his father, his feelings in relation to offences of a sexual nature allegedly committed by the father upon the sisters is relevant (as I have earlier indicated) was admitted, to neutralise the pre-meditation claim that has been advanced through the Sirolas, to neutralise what was said by them and in relation to what they had said and also in terms of explaining why the accused would have had capacity, a desire or even a wish, to see his father killed."
On appeal to this Court, the question whether this Court should interfere with the view of a Court of Criminal Appeal was submitted by the Solicitor-General for New South Wales to be subject to the principle of review of discretionary or evaluative judgments contained in House v The King[11]. That is an entirely erroneous approach. Once there is an unqualified grant of special leave to appeal, the function of this Court is to dismiss the appeal or to make the order which the Court of Criminal Appeal ought to have made. For that purpose, this Court must step into the shoes of the Court of Criminal Appeal. Thus, in Parker v The Queen Windeyer J said[12]:
"If the case is one for special leave then, in considering whether the appeal should be allowed, we must approach the matter as if we were a court of criminal appeal. It then becomes of little importance that on the facts the verdict may seem to have been right, if the jury were not properly directed on a material issue and this misdirection might have affected their decision."Parker was a case in which provocation was wrongly withdrawn from the jury's consideration. However the observation of Dixon CJ as to an appeal court's assessment of the sufficiency of the evidence to raise provocation indicates the approach to be taken when an appellate court must determine whether the jury could have resolved an element of provocation in favour of an accused. Dixon CJ said[13]:
"But on the question of provocation there has been no decision of the jury and the question is whether they ought to have been allowed to decide it. Perhaps it may be said that the question is to be considered just as if the jury had decided it in favour of the prisoner and, by some freak of procedure, the question arose whether that decision could be sustained. The point is that the issue before the Court of Criminal Appeal was whether by any possibility the jury might not unreasonably discover in the material before them enough to enable them to find a case of provocation. The selection and evaluation of the facts and factors upon which that conclusion would be based would be for the jury and it would not matter what qualifying or opposing considerations the Court might see: they would not matter because the question was, ex hypothesi, one for the jury and not for the Court."If a reasonable jury, properly directed, could have had a reasonable doubt as to whether the appellant was provoked to such a degree that an ordinary person experiencing provocation to that degree could have formed an intention to kill or to inflict grievous bodily harm to the deceased, this appeal must be allowed. In determining that question, regard must be had to all the relevant evidence including evidence of the sexual abuse factor. If the view formed by the Court of Criminal Appeal was correct, no reasonable jury properly directed could have entertained a reasonable doubt on that question and the trial judge was in error in allowing the issue of provocation to go to the jury.
In my opinion, the trial judge was right to allow the issue of provocation to go to the jury. On the appellant's evidence and on the statements he made to the police, he was grievously incensed and insulted by the conduct of the deceased. The Court of Criminal Appeal appears to have placed some emphasis on the absence of evidence on the part of the deceased - "the touching was amorous, not forceful", Priestley JA said in speaking for the majority. That led the majority to the view that -
"the basis for the jury's decision was that they were satisfied beyond reasonable doubt that the sexual advances of Mr Gillies up to the point where the appellant lost his self-control were not such as could have induced an ordinary person in the position of the appellant to have so far lost self-control as to have formed an intent to kill or inflict grievous bodily harm upon Mr Gillies."And that view, imputed to a jury that had been directed to ignore the sexual abuse factor in considering the "ordinary person in the position of the accused" test, was confirmed by the majority having taken that factor into consideration. Priestley JA said:
"It is easy to see that many an ordinary person in the position in which the appellant was when Mr Gillies was making his amorous physical advances would have reacted indignantly, with a physical throwing off of the deceased, and perhaps with blows. I do not think however that the ordinary person could have been induced by the deceased's conduct so far to lose self-control as to have formed an intent to kill or inflict grievous bodily harm upon Mr Gillies."With respect, the conclusion arrived at by the majority was a finding of fact that might not have been arrived at by a jury. A jury would be entitled to evaluate the circumstances in a different way[14]. The real sting of the provocation could have been found not in the force used by the deceased but in his attempt to violate the sexual integrity of a man who had trusted him as a friend and father figure, in the deceased's persistent homosexual advances after the appellant had said "I'm not like this" and in the evoking of the appellant's recollection of the abuse of trust on the part of his father. These were matters for the jury to evaluate in determining the degree of provocation experienced by the appellant. Smart J in dissent described the deceased's actions, as narrated by the appellant, as revolting. He added:
"All this was bad enough but there were further factors, namely, the deceased's betrayal of the relationship of trust, dependency, friendship and his abuse of his hospitality. He was trying to co-erce the appellant into providing him (the deceased) with sexual gratification.
In the last paragraph, Smart J speaks of the reaction of "some ordinary men" to the deceased's conduct. With respect, the relevant question was the reaction of the appellant. The "ordinary person" in par (b) of s 23(2), like the ordinary person considered in Stingel[15], does not refer to a person having precisely the appellant's powers of self-control but refers "to a person with powers of self-control within the range or limits of what is 'ordinary' for a person of the relevant age".
The past history of the accused, including the family history of the father's sexual assaults, must not be overlooked.
The provocation was of a very grave kind. It must have been a terrifying experience for the appellant when the deceased persisted. The grabbing and the persistence are critical.
Some ordinary men would feel great revulsion at the homosexual advances being persisted with in the circumstances and could be induced to so far lose their self control as to form the intention to and inflict grievous bodily harm. They would regard it as a serious and gross violation of their body and their person. I am not saying that most men would so react or that such a reaction would be reasonable. However, some ordinary men could become enraged and feel that a strong physical re-action was called for. The deceased's actions had to be stopped."
A reasonable jury might have come to the conclusion that an ordinary person, who was provoked to the degree that the appellant was provoked, could have formed an intent to kill or to inflict grievous bodily harm upon the deceased. It was essentially a jury question, a question the answer to which depended on the jury's evaluation of the degree of outrage which the appellant might have experienced. It was not for the Court to determine questions of that kind, especially when reaction to sexual advances are critical to the evaluation. A juryman or woman would not be unreasonable because he or she might accept that the appellant found the deceased's conduct "revolting" rather than "amorous". The case is not like Stingel. In that case, Stingel sought out and allegedly came upon a scene of consensual sexual activity between the deceased and Stingel's erstwhile girlfriend - a scene which inflamed his jealousy. Here, the deceased was the sexual aggressor of the appellant.
As the trial judge was in error in ruling that the sexual abuse factor was irrelevant to the issue of provocation, and as it was open to the jury not to be satisfied beyond reasonable doubt that s 23(1) did not apply, the accused lost a chance of acquittal of murder. Accordingly, the proviso did not apply: Mraz v The Queen[16]. I do not regard the case as falling within Wilde v The Queen[17]. That case applies[18] only where there is "such a departure from the essential requirements of the law that it goes to the root of the proceedings" so that "the accused has not had a proper trial". It applies only to fundamental irregularities which demonstrate that no proper trial has taken place. It does not apply when there is no more than an erroneous ruling on the admissibility of evidence or a misdirection on a particular point of fact or law arising in the trial. In the latter category of cases the proviso falls for consideration.
The appeal must be allowed, the order of the Court of Criminal Appeal set aside and in lieu thereof the appeal to that Court should be allowed, the conviction quashed and a new trial ordered.
TOOHEY J
The appellant was convicted of murder following a jury trial. His appeal to the New South Wales Court of Criminal Appeal was dismissed. Although the Court found errors in rulings made by the trial judge, it applied the "proviso"[19] to dismiss the appeal on the footing that no substantial miscarriage of justice had actually occurred.
The appellant and the deceased were friends. On the night of 19 May 1993 the appellant stayed at the home of the deceased. The latter lived with his mother who was away at the time. That night the two men sat around drinking alcohol and watching television. Because of the lateness of the hour, the deceased invited the appellant to stay the night; the appellant accepted the invitation.
In outlining the Crown's case against the appellant and his defence, it must be understood that the only direct evidence was that of the appellant himself. The Crown's case was based on admissions by the appellant, in particular admissions that he had punched and stabbed the deceased, and expert reconstruction of events from the physical evidence available from the house, in particular the room in which the deceased was killed. In effect the Crown's case was that the deceased had gone to bed intoxicated, that the appellant had come into his room and assaulted him, in the course of which the deceased suffered a head injury. The appellant then stabbed the deceased with a pair of scissors ten times while he was on the floor or rolling from the bed to the floor.
As to motive, the Crown called Mr and Mrs Sirola who first met the appellant on the afternoon of 18 May 1993. He had come to their house at the invitation of Mr Sirola who said that during the evening the appellant asked him if he knew of anyone who could knock someone off. Mr Sirola asked him whom he had in mind and the appellant told him not to worry about it. He did say that in the morning he was going out for a jog with a mate, Don, a reference to the deceased. Mrs Sirola recalled the appellant saying he was going to put someone down and her husband replying that it would not be right to do that. There was reference by her to him going jogging with Don. However, none of this throws much light on the appellant's motive in killing his friend.
The appellant's account of events was quite different. He said that after he went to bed the deceased had come into his room and slid into the bed beside him. His formal record of interview continued[20]:
"Then he started touching me. I pushed him away. He asked what was wrong. I said, 'What do you think is wrong? I'm not like this.' He started grabbing me with both hands around my lower back. I pushed him away. He started grabbing me harder. I tried and forced him to the lower side of me. He still tried to grab me. I hit him again and again on top of the bed until he didn't look like Don to me. He still tried to grope and talk to me that's when I hit him again and saw the scissors on the floor on the right hand side of the bed. When I saw the scissors he touched me around the waist shoulders area and said, 'Why?' I said to him, 'Why, I didn't ask for this.' I grabbed the scissors and hit him again. He rolled off the bed as I struck him with the scissors. By the time I stopped I realised what had happened. I just stood at the foot of the bed with Don on the floor laying face down in blood. I thought to myself how other people can do something like this and enjoy what they do. I didn't get off this and like it not just because he was someone I knew even though he resembled someone I knew. I didn't know what to do, didn't know where to go."
The appellant later said in his record of interview:
"In relation to what had happened this night I tried to take it as a funny joke but in relation to what my father had done to four of my sisters it forced me to open more than I could bear. It hasn't changed the fact to what had happened to my family but I couldn't stop myself or control what went through me."Asked to explain to the jury what he meant by this answer, the following exchange ensued:
"A. Well, it's just that when I tried to push Don away and that and I started hitting him it's just - I saw the image of my father over two of my sisters, Cherie and Michelle, and they were crying and I just lost it.
Q. What do you mean you just lost it? A. I can't remember stuff after it.
Q. You can't remember after that? A. Yes.
Q. What did you mean when you said, 'It forced me to open more than I could bear.' A. I just lost control.
Q. Why did you lose control? A. Because those thoughts of me father just going through me mind.
Q. What about your father was going through your mind? A. About sexually assaulting me sisters and belting me mother.
Q. What feelings did you have at that time as a result of that? A. Upset, angry."
The appellant had earlier given evidence that he had for a long time believed that his father had forced intercourse upon two of his sisters, that he had seen his father being regularly violent towards his mother as well as to his sisters and that his father had been violent towards him.
The appeal to this Court was primarily on the ground that the Court of Criminal Appeal erred in applying the proviso. To the extent that the Court of Criminal Appeal found error in rulings of the trial judge, the appellant was able to take that as his starting point. But he also contended that the Court itself made errors of law, thereby giving support to his attack on the use of the proviso. In this regard most of the argument focused on s 23 of the Crimes Act 1900 (NSW) which deals with provocation on a trial for murder. It is necessary to set out s 23 in full:
"(1) Where, on the trial of a person for murder, it appears that the act or omission causing death was an act done or omitted under provocation and, but for this subsection and the provocation, the jury would have found the accused guilty of murder, the jury shall acquit the accused of murder and find the accused guilty of manslaughter.The trial judge allowed the defence of provocation to go to the jury but in doing so he made rulings which were challenged before the Court of Criminal Appeal. Those rulings are reflected in the grounds of appeal to that Court. The grounds are conveniently collected in the judgment of Priestley JA with which Ireland J agreed; it is helpful to set out those relevant to the issue of provocation:
(2) For the purposes of subsection (1), an act or omission causing death is an act done or omitted under provocation where:
(a) the act or omission is the result of a loss of self-control on the part of the accused that was induced by any conduct of the deceased (including grossly insulting words or gestures) towards or affecting the accused; and
(b) that conduct of the deceased was such as could have induced an ordinary person in the position of the accused to have so far lost self-control as to have formed an intent to kill, or to inflict grievous bodily harm upon, the deceased,
whether that conduct of the deceased occurred immediately before the act or omission causing death or at any previous time.
(3) For the purpose of determining whether an act or omission causing death was an act done or omitted under provocation as provided by subsection (2), there is no rule of law that provocation is negatived if:
(a) there was not a reasonable proportion between the act or omission causing death and the conduct of the deceased that induced the act or omission;
(b) the act or omission causing death was not an act done or omitted suddenly; or
(c) the act or omission causing death was an act done or omitted with any intent to take life or inflict grievous bodily harm.
(4) Where, on the trial of a person for murder, there is any evidence that the act causing death was an act done or omitted under provocation as provided by subsection (2), the onus is on the prosecution to prove beyond reasonable doubt that the act or omission causing death was not an act done or omitted under provocation.
(5) This section does not exclude or limit any defence to a charge of murder."
" 2. The trial judge erred in law in determining that evidence of the appellant's special sensitivity to sexual interference, and evidence of the appellant's family background going to explain that sensitivity, was not admissible on the issue under s 23(2)(a) of the Crimes Act as to whether the appellant had in fact been provoked.The appellant argued that s 23 of the Crimes Act is distinctive, that it is substantially different from its predecessor and that it is distinguishable from the common law and from comparable provisions in the Criminal Codes. The particular features to which the appellant drew attention and upon which he relied are as follows:
3. The trial judge erred in law in failing to direct the jury that evidence of the appellant's special sensitivity to sexual interference, and evidence of the appellant's family background going to explain that sensitivity, should be considered by them on the issue under s 23(2)(a) of the Crimes Act as to whether the appellant had in fact been provoked.
4. The trial judge erred in law in determining that what is required to satisfy s 23(2)(b) of the Crimes Act is that an ordinary person in the position of the appellant could have been provoked to the response to which the appellant resorted, rather than provoked to form an intent to kill or do grievous bodily harm; the defence was placed under a serious disadvantage in that without giving notice of having changed that determination, his Honour directed the jury towards the conclusion of his summing-up in the terms which defence counsel had originally advocated, but on which defence counsel had been precluded from addressing by his Honour's earlier ruling.
5. (Ground 5, not pressed at the hearing of the appeal in its original form was amended to read as follows.) The trial judge erred in law in directing the jury that the meaning of an ordinary person in the position of the appellant was a person with an ordinary or common range of temperament of a person of his age and maturity without further directing as to the meaning of 'in the position of the appellant'.
6. The trial judge erred in law in determining that evidence of the truth of incidents of sexual interference by the appellant's father with the appellant's sisters was not admissible on the issues:
(a) of the appellant's special sensitivity to sexual interference, going to the issue under s 23(2)(a) of the Crimes Act as to whether he was in fact provoked, and
(b) of the appellant's adverse attitude to his father and his propensity to express his strong dislike of him."
1. Section 23(2)(b) refers to conduct of the deceased that could have induced "an ordinary person in the position of the accused" to lose self-control.
2. Section 23(2)(b) also refers to such a loss of self-control "as to have formed an intent to kill, or to inflict grievous bodily harm", not to forming an intent and carrying it out.
3. Again, by reason of s 23(2)(b), the intention may be one to inflict grievous bodily harm, not to kill, in order for the defence of provocation to operate.
In Stingel v The Queen[21] the Court said of provocation that
"in this particular field of criminal law, the common law, the Codes and other statutory provisions, and judicial decisions about them, have tended to interact and to reflect a degree of unity of underlying notions".
Nevertheless the Court continued:
"While we share that perception, we have thought it preferable, in disposing of the present appeal, to keep the focus of our consideration firmly fixed upon the provisions of s 160 of the [Criminal Code (Tas)]."
These observations apply with equal force in the present appeal, substituting s 23 for s 160. The matter is of some importance in the present case because of the distinction drawn between pars (a) and (b) in s 23(2) and the ruling of the trial judge based upon that distinction. And although some such distinction exists in the common law and statutes, many of the decisions on provocation are concerned with the counterpart of par (b) rather than the counterpart of par (a). Stingel itself is an illustration as is the more recent decision of this Court in Masciantonio v The Queen[22].
The trial judge refused to take away the issue of provocation from the jury because there were, in the appellant's record of interview and in what he had told the police, statements such as "I couldn't stop myself or control what went through me" and "Yes, I killed him and I'll tell you about it. He put it on me and I just snapped."
In the course of the trial the appellant sought to adduce evidence from his sister in cross-examination and to call other evidence, the object of which was, in the words of the trial judge,
"to show a serious family history of sexual abuse involved some of his sisters by the father, and which was allegedly known to the accused as at 19 May 1993. It is said that the information became known to the accused over a period of time and had caused him serious concern as at 19 May 1993 about the fate of his sisters and created in him a particular sensitivity to matters of a sexual nature."The passage in the record of interview, which is noted earlier in these reasons, referring to his family and his explanation given orally to the jury relate to the evidence which the appellant wished to adduce.
His Honour ruled that what had occurred to the appellant's sister and to other relatives and any discussion between any of them and the appellant had no relevance to the issue of provocation. In the course of that ruling his Honour referred to a distinction "between a belief as to the evidence and the question as to whether or not the belief is or is not founded in fact". But it is clear from the direction to the jury that his Honour was treating as irrelevant to the issue of provocation both what had happened to the appellant's sister and other relatives and the appellant's belief as to what had happened. Nevertheless, the evidence sought to be adduced by the appellant was in fact led from his mother and sisters. His Honour allowed that evidence, and directed the jury to regard the evidence, as relevant to the issue of premeditation. In other words the evidence was held admissible to explain that if, as the Sirolas said, there was a discussion about killing someone, it was not in relation to the deceased. Rather, the appellant would have had his father in mind by reason of the earlier events mentioned in these reasons. The Crown Prosecutor asked the trial judge to direct the jury expressly that evidence in relation to "family dysfunction" could not be used on the question of provocation. After discussion with counsel his Honour decided that because he had directed the jury as to the relevance of the evidence to premeditation and had given "very clear and full directions on provocation, including reference to the temperament of the accused, his age", he would not give the direction sought by the Crown. There the matter stood.
Before the Court of Criminal Appeal the Crown accepted that the trial judge was in error in ruling that evidence of the appellant's special sensitivity to sexual interference and evidence of the family background to explain that sensitivity was not admissible on the issue presented by s 23(2)(a), namely, whether there was a loss of self-control on the part of the appellant. Paragraph (a) is the first step in the provocation of which s 23 speaks. If there was in fact no loss of self-control, there was no act done or omitted under provocation. In determining whether there was in fact a loss of self-control the evidence sought to be adduced was clearly admissible; the weight to be attached to it was a matter for the jury.
However, the appellant contended that the test posed by par (b), while speaking of an ordinary person also speaks of such a person "in the position of the accused" so that the attributes or characteristics of the appellant are relevant to that test. This was ground 5 of the grounds of appeal, of which Priestley JA said:
" Because ground 5 was only formulated at the beginning of the oral hearing, there were no written submissions about it. The oral submissions were short."
During the trial counsel for the appellant sought a further direction after the trial judge had responded to the jury's request that his Honour "re-explain the law on provocation, murder and manslaughter". Counsel submitted that his Honour should clarify, by reference to all the circumstances, what is meant by "in the position of the accused". His Honour replied that he had already directed the jury in terms of "an ordinary person in the context of his temperament, age and maturity". Priestley JA said that, in the light of the judgments in Stingel and in Baraghith[23], he did not "think that this was wrong, or that anything more was, in the circumstances, required". On this footing the Court of Criminal Appeal upheld the trial judge's ruling that the family circumstances could play no part in the operation of s 23(2)(b). Smart J, who would have allowed the appeal, did not find it necessary to deal with ground 5. This is because he would have allowed the appeal on grounds 2, 3, 4 and 6 and held the proviso to be inapplicable.
It is important to appreciate the significance Priestley JA attached to the trial judge's rulings on pars (a) and (b). As to the former, his Honour said that realistically the appellant could not have failed to satisfy the test or, more accurately in terms of onus of proof, that the Crown could not have negated, beyond reasonable doubt, loss of self-control by the appellant. His Honour continued:
"In my opinion, the only basis on the facts before the jury on which the Crown could succeed in negating provocation, was through s 23(2)(b), which meant the Crown's task was to persuade the jury, beyond reasonable doubt, that the conduct of the deceased was not such as could have induced an ordinary person in the position of the appellant to have so far lost self-control as to have formed an intent to kill or inflict grievous bodily harm on Mr Gillies.However, this approach does not resolve the way in which pars (a) and (b) mesh. Nor does it have sufficient regard to the fact that the jury were told in effect that any special sensitivity to sexual interference was to play no part in their consideration of par (a) or par (b) of s 23(2). It is true that it is the conduct of the deceased which must induce the loss of self-control but in considering whether there was a loss of self-control it is relevant to look at all the circumstances in which the accused finds himself or herself. It may be that in the present case the jury were not persuaded that there was a loss of self-control if they had to exclude the family circumstances from consideration. It follows that not only were grounds 2 and 3 made out but the error may have had greater significance than the majority in the Court of Criminal Appeal was prepared to attribute to it.
Thus, the misdirections relating to s 23(2)(a) issues were irrelevant for present purposes."
In all of this discussion one should not lose sight of s 23(3)(a) whereby the lack of reasonable proportionality between the act or omission causing death and the conduct of the deceased that induced the act or omission does not negative provocation. At the same time s 23 makes clear beyond argument that it is only the conduct of the deceased that can be the source of provocation. The task of explaining to the jury the operation of s 23 in the particular case is not an easy one.
One thing is clear. Section 23(2)(b) does not turn on an assessment of the accused's subjective reaction to the conduct of the deceased; that is what par (a) is about. The difficulty with par (b) is the effect to be given to "an ordinary person in the position of the accused". If the words "ordinary person" are taken in isolation, Stingel has the consequence that while "none of the attributes or characteristics of a particular accused will be necessarily irrelevant to an assessment of the content and extent of the provocation involved in the relevant conduct"[24], the ultimate question relates to the possible effect of the conduct, so understood and assessed, upon the power of self-control of a truly hypothetical "ordinary person". As the Court said in Stingel[25]:
"Subject to a qualification in relation to age ... the extent of the power of self-control of that hypothetical ordinary person is unaffected by the personal characteristics or attributes of the particular accused."
The point was further expanded in Masciantonio where Brennan, Deane, Dawson and Gaudron JJ said[26]:
" However, the gravity of the conduct said to constitute the provocation must be assessed by reference to relevant characteristics of the accused. Conduct which might not be insulting or hurtful to one person might be extremely so to another because of that person's age, sex, race, ethnicity, physical features, personal attributes, personal relationships or past history. The provocation must be put into context and it is only by having regard to the attributes or characteristics of the accused that this can be done. But having assessed the gravity of the provocation in this way, it is then necessary to ask the question whether provocation of that degree of gravity could cause an ordinary person to lose self-control and act in a manner which would encompass the accused's actions."In R v Campbell[27] the New Zealand Court of Appeal spoke of New Zealand law in this respect as "in harmony with that of ... Australia", citing Stingel and Masciantonio.
Do the additional words "in the position of the accused" require a different approach? No doubt those words must be given some work to do; they cannot be ignored. The legislative history does not afford much assistance. Section 23 of the Crimes Act was inserted by the Crimes (Homicide) Amendment Act 1982 (NSW). In the course of the second reading speech the Attorney-General said[28]:
"The test is not only whether the accused was provoked but also whether an ordinary person, in the position of the accused, would have been provoked. The formula of words used does not introduce an entirely subjective test of provocation, but it does allow the courts, developing the law through cases, to interpret what the position of the accused was."But just as the words "ordinary person" cannot be divorced from "in the position of the accused", so the words "in the position of the accused" cannot be divorced from "ordinary person". The two phrases must be read together. The reconciliation, if reconciliation is called for, lies in considering the gravity of the provocation to the person accused, keeping in mind that it is the conduct of the deceased in which provocation must be found. In determining the gravity of the provocation to the accused it is relevant to take into account the accused's own circumstances. In the light of those circumstances, one must then ask the question: was the conduct of the deceased such as could have induced a person with ordinary powers of self-control to have so far lost that control as to have formed an intention to kill or to inflict grievous bodily harm upon the deceased? With one qualification, I accept what was said by Samuels JA in Baraghith in relation to s 23(2)(b)[29]:
"[T]o paraphrase what was said in Stingel, the content and extent of the provocative conduct must be assessed from the viewpoint of the particular accused although particular characteristics relevant to that assessment must be ignored when determining whether that conduct could have induced the response to which the accused resorted. Hence, when considering the formula 'an ordinary person in the position of the accused' the words 'in the position of the accused' so far as they make relevant attributes or characteristics of a particular accused do so only in assessing the gravity of the alleged provocation and are to be ignored in deciding whether the accused's response was or was not that of an ordinary person."
The qualification relates to the words "the response to which the accused resorted" and is discussed later in these reasons.
Counsel for the appellant accepted that the approach taken in the preceding paragraph to s 23 of the Crimes Act differs little from that taken in Stingel. Indeed it is hard to find any real difference, particularly when regard is had to the following passage from Stingel[30]:
"A consideration of that question will almost inevitably involve projecting the hypothetical ordinary person ... into the position of the accused at the time of the killing."
There are of course differences between s 23 and the common law. The latter requires that the reactions of the accused to the provocation "conform with the likely reactions of an ordinary person in his position"[31]. The Criminal Code (WA) defines provocation in s 245 as "any wrongful act or insult of such a nature as to be likely, when done to an ordinary person ... to deprive him of the power of self control". Section 160 of the Criminal Code (Tas) uses comparable language. Nevertheless the Court in Stingel treated the personal characteristics or attributes of the particular accused as relevant only in assessing the gravity of the wrongful act or insult.
The Court observed in Stingel[32]:
" A projection of the 'ordinary person' of the objective test into the position of the accused at the time of the killing will, however, involve a particular difficulty in a case where the existence of some attribute or characteristic of the accused is relevant both to the identification of the content or the gravity of the wrongful act or insult and to the level of power of self-control of any person possessed of it."This is such a case in the sense that the appellant's alleged special sensitivity to sexual interference could be relevant not only to the gravity of the deceased's conduct but also to the level of self-control of any person with that characteristic. Nevertheless, the Court made clear in Stingel[33]:
"[T]he objective test will, nonetheless, require that the provocative effect of the wrongful act or insult, with its content and gravity so identified, be assessed by reference to the powers of self-control of a hypothetical 'ordinary person' who is unaffected by that extraordinary attribute or characteristic".The appellant's real complaint is that the ruling of the trial judge took from the jury the opportunity to hear evidence relevant to the gravity of the provocation offered to him. The likely result was that the jury would have applied par (b) of s 23(2) by reference only to the self-control of an ordinary person without having regard to the gravity of the provocation. Of course the jury may well have rejected the appellant's account of what happened and accepted the case presented by the Crown. But that is something we do not and cannot know. However, one cannot say that no substantial miscarriage of justice has actually occurred when an important aspect of the defence of provocation was withheld from the jury. It is for this reason that it was inappropriate to apply the proviso.
There is a further aspect to be considered, arising from ground 4. Section 23(2)(b) speaks of so far losing self-control "as to have formed an intent to kill, or to inflict grievous bodily harm upon, the deceased". In the course of ruling on the admissibility of the evidence of the appellant's sister and other members of the family, the trial judge adopted what had been said by Samuels JA in Baraghith, including the passage quoted earlier in these reasons. The trial judge rejected a submission by counsel for the appellant that the words "the response to which the accused resorted" were obiter and appears to have rejected a further submission that the words were inconsistent with the language of s 23(2)(b). The trial, including the addresses of counsel, proceeded in accordance with the trial judge's ruling. However, in the course of his charge to the jury, the trial judge on more than one occasion used the language of s 23(2)(b). That is, his Honour spoke of provocation as involving such a loss of self-control as to cause an ordinary person in the position of the accused to form an intent to kill, or to inflict grievous bodily harm upon, the deceased. The words "the response to which the accused resorted" focus unduly on the particular acts of the accused as opposed to the formation of an intention to kill or inflict grievous bodily harm. To that extent I respectfully disagree with the language chosen by Samuels JA. It must be acknowledged that in Stingel the Court spoke of a wrongful act or insult of such a nature "that it could or might cause an ordinary person ... to do what the accused did"[34]. But the point now under consideration was not at issue in Stingel; in any event the language of s 23(2)(b) puts the distinction beyond argument.
The Court of Criminal Appeal adverted to the distinction but the majority seems to have regarded the proviso as an answer to the appellant's complaint. Priestley JA said:
" It seems to me that this court should accept that the basis for the jury's decision was that they were satisfied beyond reasonable doubt that the sexual advances of [the deceased] up to the point where the appellant lost his self-control were not such as could have induced an ordinary person in the position of the appellant to have so far lost self-control as to have formed an intent to kill or inflict grievous bodily harm upon [the deceased]."
He considered that in all the circumstances the ruling by the trial judge could not realistically have led to a different result, hence there was no substantial miscarriage of justice.
On the other hand Smart J considered that the rulings of the trial judge "put counsel for the appellant in an impossible situation given the injuries inflicted by the appellant". He added:
"No counsel could sensibly suggest to a jury that the deceased's provocative conduct and its high degree of gravity was such as to cause an ordinary person in the position of the accused to have so far lost self control as to do what the appellant did. The appellant's counsel needed to be able to address the jury upon the basis of Jamieson,[35] namely, that the conduct of the deceased was such as to provoke an ordinary person to form an intention to inflict grievous bodily harm and that was sufficient and that they did not have to subject the excessive frenzied acts to the objective test."
There is force in the observations of Smart J though if that were the only error made in the trial it would be difficult to argue against the application of the proviso.
The fact remains that in relation to s 23(2)(a) and (b) the jury were not directed to have regard to the appellant's family circumstances in considering his actual reaction or the reaction of an "ordinary person in the position of the accused". The error was significant and in the circumstances it is not possible to conclude that no substantial miscarriage of justice actually occurred.
The appeal must be allowed and the conviction of the appellant quashed. Counsel for the appellant argued against a retrial, contending that a verdict of manslaughter should be entered. But a retrial is inevitable. The killing was a savage one and, as mentioned earlier, the jury which convicted the appellant may simply have accepted the Crown's case. There should be an order for a retrial.
McHUGH J. The question in this appeal is whether the New South Wales Court of Criminal Appeal (Priestley JA and Ireland J, Smart J dissenting) erred in holding that the conviction of the appellant for murder was not a substantial miscarriage of justice. The Court reached this conclusion even though all judges found that the trial judge had wrongly excluded evidence relevant to the appellant's defence of "provocation" and had also misdirected the jury in respect of that defence.
In my opinion, the Court of Criminal Appeal erred in holding that there had been no substantial miscarriage of justice. Consequently, the appeal should be allowed and a new trial ordered.
Factual background
In the early morning of 20 May 1993 the appellant, Mr Malcolm Thomas Green ("the accused"), killed Mr Donald Gillies ("the deceased") at his home in Mudgee. In March 1994, a jury convicted the accused of murdering the deceased. The trial judge, Abadee J, sentenced the accused to imprisonment for 15 years.
Because of the nature of the errors which the accused claims were made by the trial judge and the Court of Criminal Appeal, it is necessary to set out in some detail the history of the relationship between the accused and the deceased and the accused's family background.
At the time of his death, the deceased was 36 years of age. He was unmarried and lived with his mother although she had been away from the family home for some days prior to the killing. The deceased had helped the accused to obtain work, had lent him small sums of money, and had been his confidant. The accused was 22 years of age. He had known the deceased about six years and described him as one of his "best friends". In evidence, the accused said that he trusted the deceased, looked up to him, and valued his advice.
On the night of the killing, the deceased had invited the accused to dinner. They dined and watched a number of television programmes. According to the accused, each of them consumed a significant amount of alcohol during the evening. The deceased asked the accused if he would like to stay overnight. After initially refusing the offer, the accused decided to stay. The deceased said that he would sleep in his mother's bedroom and that the accused could sleep in the deceased's bedroom. In a record of interview made a few hours after the killing, the accused said:
"and he showed me to the bed I was sleeping in. After a while when I was fully unclothed Don entered the room I was in, slid in beside me in the bed and started talking to me how a great person I was. Then he started touching me. I pushed him away. He asked what was wrong. I said, 'What do you think is wrong? I'm not like this.' He started grabbing me with both hands around my lower back. I pushed him away. He started grabbing me harder I tried and forced him to the lower side of me. He still tried to grab me. I hit him again and again on top of the bed until he didn't look like Don to me. He still tried to grope and talk to me that's when I hit him again and saw the scissors on the floor on the right hand side of the bed. When I saw the scissors he touched me around the waist shoulders area and said, 'Why'? I said to him, 'Why, I didn't ask for this.' I grabbed the scissors and hit him again. He rolled off the bed as I struck him with the scissors. By the time I stopped I realised what had happened. I just stood at the foot of the bed with Don on the floor laying face down in blood. I thought to myself how other people can do something like this and enjoy what they do. I didn't get off this and like it not just because he was someone I knew even though he resembled someone I knew. I didn't know what to do, didn't know where to go."The accused was asked:
"Q.58 How was he touching you?
A. I suppose it was gently but I didn't respond.
Q.59 On what part of the body did he touch you?
A. On my side that's when I pushed him away.
Q.60 Did he touch you anywhere else after that?
A. Yes, he grabbed me by both arms and pulled me towards him till there was no room in between us. Then he moved his hand down to my backside, arse. I pushed it away then he slowly touched my groin area that's when I got aggressive and hit him."
In answer to the last question asked during the interview with the police, the accused said:
"In relation to what had happened this night I tried to take it as a funny joke but in relation to what my father had done to four of my sisters it forced me to open more than I could bear. It hasn't changed the fact to what had happened to my family but I couldn't stop myself or control what went through me."At the trial the accused elaborated upon this answer. He was asked:
"Q. What did you mean by that?The accused had not witnessed any sexual assaults by his father on his sisters. However, as a result of conversations with his sisters and mother, he believed that his father had sexual assaulted them. He also gave evidence that he had witnessed quite violent, non-sexual assaults by his father upon his mother and sisters. His attitude towards his father, whom he had seen only once in many years, was that he "wanted to kill him, hated him".
A. Well, it's just that when I tried to push Don away and that and I started hitting him it's just - I saw the image of my father over two of my sisters, Cherie and Michelle, and they were crying and I just lost it.
Q. What do you mean you just lost it?
A. I can't remember stuff after it.
Q. You can't remember after that?
A. Yes.
Q. What did you mean when you said, 'It forced me to open more than I could bear.'
A. I just lost control.
Q. Why did you lose control?
A. Because those thoughts of me father just going through me mind.
Q. What about your father was going through your mind?
A. About sexually assaulting me sisters and belting me mother.
Q. What feelings did you have at that time as a result of that?
A. Upset, angry."
(2) A wrongful act or insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section if the accused acted upon it on the sudden and before there was time for his passion to cool."
[98] [1986] 1 SCR 313 at 343-344; cf Howe, "More Folk Provoke Their Own Demise", (1997) 19 Sydney Law Review 336 at 365.
[99] Masciantonio v The Queen (1995) 183 CLR 58 at 80; Stingel v The Queen (1990) 171 CLR 312 at 336; Moffa v The Queen (1977) 138 CLR 601 at 616-617. See also Mraz v The Queen (1955) 93 CLR 493 at 514-515; Driscoll v The Queen (1977) 137 CLR 517 at 524; Wilde v The Queen (1988) 164 CLR 365 at 372.
[100] Stingel v The Queen (1990) 171 CLR 312; Masciantonio v The Queen (1995) 183 CLR 58; see also McGhee v The Queen (1995) 183 CLR 82.
[101] For example Comstock, "Dismantling the Homosexual Panic Defense" (1992) 2 Law and Sexuality at 81; Dressler, "When 'Heterosexual' Men Kill 'Homosexual' Men: Reflections on Provocation Law, Sexual Advances, and the 'Reasonable Man' Standard" (1995) 85 Journal of Criminal Law and Criminology at 726; Mison, "Homophobia in Manslaughter: The Homosexual Advance as Insufficient Provocation" (1992) 80 California Law Review 133; Moran, The Homosexuality of Law (1996) at 183-184.
[102] Attorney-General's Department (NSW), Review of the 'Homosexual Advance Defence' Discussion Paper (1996).
[103] Criminal Appeal Act 1912 (NSW), s 6(1). The terms of the sub-section are referred to in the reasons of Toohey J.
[104] Mraz v The Queen (1955) 93 CLR 493 at 514; Parker v The Queen (1963) 111 CLR 610 at 653-656; Wilde v The Queen (1988) 164 CLR 365 at 373; Glennon v The Queen (1994) 179 CLR 1 at 9.
[105] R v Green unreported, Court of Criminal Appeal of New South Wales, 8 November 1995 at 23 per Priestley JA.
[106] R v Green unreported, Court of Criminal Appeal of New South Wales, 8 November 1995 at 25 per Priestley JA; cf Howe, "More Folk Provoke Their Own Demise" (1997) 19 Sydney Law Review 336 at 355.
[107] Johnson v The Queen (1976) 136 CLR 619 at 649, 653.
[108] s 23(3)(a) of the Crimes Act 1900 (NSW) ("the Act").
[109] s 23(2)(b) of the Act.
[110] Priestley JA, Ireland J concurring; Smart J dissenting.
[111] R v Green unreported, Court of Criminal Appeal of New South Wales, 8 November 1995; grounds 2, 3 and 4; Priestley JA at 13, 15. These grounds are reproduced in the reasons of Toohey J.
[112] R v Green unreported, Court of Criminal Appeal of New South Wales, 8 November 1995 at 17 per Priestley JA.
[113] Stingel v The Queen (1990) 171 CLR 312.
[114] R v Green unreported, Court of Criminal Appeal of New South Wales, 8 November 1995 at 25-26.
[115] R v Green unreported, Court of Criminal Appeal of New South Wales, 8 November 1995 at 28.
[116] R v Green unreported, Court of Criminal Appeal of New South Wales, 8 November 1995 at 28.
[117] R v Green unreported, Court of Criminal Appeal of New South Wales, 8 November 1995 at 22.
[118] R v Green unreported, Court of Criminal Appeal of New South Wales, 8 November 1995 at 27 per Smart J. An analogous course was adopted by this Court in Johnson v The Queen (1976) 136 CLR 619 at 645-646 per Barwick CJ, at 671 per Murphy J; and in Moffa v The Queen (1977) 138 CLR 601 at 611, 629.
[119] Parker v The Queen (1963) 111 CLR 610 at 650 per Windeyer J.
[120] Parker v The Queen (1963) 111 CLR 610 at 651 per Windeyer J.
[121] Coke 3 Inst 50 cited in Parker v The Queen (1963) 111 CLR 610 at 651 per Windeyer J.
[122] Parker v The Queen (1963) 111 CLR 610 at 651.
[123] Stephen, A History of the Criminal Law of England, (1883), vol 3 at 87.
[124] Johnson v The Queen (1976) 136 CLR 619 at 649 per Gibbs J.
[125] House v The King (1936) 55 CLR 499 at 504-5; Norbis v Norbis (1986) 161 CLR 513 at 517-519.
[126] Mraz v The Queen (1955) 93 CLR 493 at 514.
[127] R v Green unreported, Court of Criminal Appeal of New South Wales, 8 November 1995 at 28.
[128] cf Coss, "Lethal Violence by Men" (1996) 20 Criminal Law Journal 305.
[129] (1803) vol 1 at 239 cited in Masciantonio (1995) 183 CLR 58 at 72 per McHugh J; see also Dixon CJ in Parker v The Queen (1963) 111 CLR 610 at 627.
[130] Leader-Elliott, "Sex, Race and Provocation: In Defence of Stingel" (1996) 20 Criminal Law Journal 72 at 84.
[131] cf Masciantonio v The Queen (1995) 183 CLR 58 at 71; R v Chhay (1994) 72 A Crim R 1 at13.
[132] R v Kirkham (1837) 8 Car & P 115 at 119; 173 ER 422 at 424.
[133] R v Welsh (1869) 11 Cox CC 336 at 338.
[134] cf Leader-Elliott, "Sex, Race and Provocation: In Defence of Stingel" (1996) 20 Criminal Law Journal 72 at 79.
[135] See for example Mancini v DPP [1942] AC 1 at 9; R v Duffy [1949] 1 All ER 932 at 933; Phillips v The Queen [1969] 2 AC 130 at 137.
[136] Luc Thiet Thuan v The Queen [1996] 3 WLR 45 at 59, 60; [1996] 2 All ER 1033 at 1038, 1039.
[137] Stingel v The Queen (1990) 171 CLR 312 at 328-329; Masciantonio v The Queen (1995) 183 CLR 58 at 79.
[138] (1963) 111 CLR 610 at 654.
[139] Leader-Elliott, "Sex, Race and Provocation: In Defence of Stingel" (1996) 20 Criminal Law Journal 72 at 84.
[140] For example Stingel v The Queen (1990) 171 CLR 312 at 327.
[141] R v Hill [1986] 1 SCR 313 at 347. The distinction between the issues of gravity of the provocation and self-control in response to it is "essential if the principle of equality is to be realised in practice": Leader-Elliott, "Sex, Race and Provocation: In Defence of Stingel" (1996) 20 Criminal Law Journal 72 at 96.
[142] For example Moffa v The Queen (1977) 138 CLR 601 at 624-627 per Murphy J; cf The People v MacEoin [1978] IR 27 at 32.
[143] For example Moffa v The Queen (1977) 138 CLR 601 at 625-627 per Murphy J and Masciantonio v The Queen (1995) 183 CLR 58 at 72-74 per McHugh J.
[144] Yeo, "Power of Self-Control in Provocation and Automatism" (1992) 14 Sydney Law Review 3 at 11-13; Yeo, "Sex, Ethnicity, Power of Self-Control and Provocation Revisited" (1996) 18 Sydney Law Review 304; cf Editorial, "Retaining Partial Defences to Murder" (1994) 18 Criminal Law Journal 5 at 6.
[145] (1937) 58 CLR 190 at 217. The case involved the Criminal Code (Tas), s 311.
[146] [1914] 3 KB 1116.
[147] (1963) 111 CLR 610. The case involved the Crimes Act 1900 (NSW), s 23 in its former terms.
[148] Taylor and Owen JJ at 641; Menzies J at 643.
[149] Dixon CJ at 627-628; Windeyer J at 653.
[150] Parker v The Queen (1964) 111 CLR 665 at 679-680.
[151] (1963) 111 CLR 610 at 653 (emphasis added).
[152] (1963) 111 CLR 610 at 655 (emphasis added).
[153] (1976) 136 CLR 619. The case involved the Act, s 23(2) in its former terms.
[154] (1976) 136 CLR 619 at 670-671 (in dissent).
[155] For example Brett, "The Physiology of Provocation" [1970] Criminal Law Review 634.
[156] In Moffa v The Queen (1977) 138 CLR 601 at 626 per Murphy J.
[157] Johnson v The Queen (1976) 136 CLR 619 at 671 citing Samuels, "Excusable Loss of Self Control in Homicide" (1971) 34 Modern Law Review 163 and Smith and Hogan, Criminal Law,2nd ed (1969) at 215. The Supreme Court of Ireland followed the approach of Murphy J in Moffa v The Queen (1977) 138 CLR 601;see The People v MacEoin [1978] IR 27 at 32, noted in Fairall, "The Objective Test in Provocation" (1983) 7 Criminal Law Journal 142 at 147.
[158] (1976) 136 CLR 619 at 656; see also Da Costa v The Queen (1968) 118 CLR 186 at 214-215 per Owen J.
[159] (1977) 138 CLR 601.
[160] (1977) 138 CLR 601 at 624-627.
[161] (1977) 138 CLR 601 at 605, see also at 607.
[162] (1977) 138 CLR 601 at 613.
[163] (1977) 138 CLR 601 at 619.
[164] (1977) 138 CLR 601 at 622.
[165] (1990) 171 CLR 312. The case involved the Criminal Code (Tas), s 160.
[166] (1990) 171 CLR 312 at 332.
[167] (1995) 183 CLR 58. The case involved the law of provocation in Victoria.
[168] (1995) 183 CLR 58 at 71.
[169] See (1995) 183 CLR 58 at 74; see also the reasons of McHugh J in this case at 34.
[170] (1995) 183 CLR 58 at 80.
[171] Brennan, Deane, Dawson and Gaudron JJ.
[172] Masciantonio v The Queen (1995) 183 CLR 58 at 67; R v Georgatsoulis (1994) 62 SASR 351; noted in Leader-Elliott, "Georgatsoulis" (1995) 19 Criminal Law Journal 347.
[173] For example, Leader-Elliott, "Sex, Race and Provocation: In Defence of Stingel" (1996) 20 Criminal Law Journal 72; Berman, "Provocation: Difficulties in the Application of the Subjective Test" (1995) 2 Criminal Law News 1 at 7. See also Fairall, "The Objective Test in Provocation" (1983) 7 Criminal Law Journal 142.
[174] McHugh J called it a "curious dichotomy" in Masciantonio v The Queen (1995) 183 CLR 58 at 72.
[175] For example R v Voukelatos [1990] VR 1 at 27.
[176] Leader-Elliott, "Sex, Race and Provocation: In Defence of Stingel" (1996) 20 Criminal Law Journal 72 at 96; Detmold, "Provocation to Murder: Sovereignty and Multiculture", (1997) 19 Sydney Law Review 5; The Review of Commonwealth Criminal Law in Principles of Criminal Responsibility and Other Matters (1990) has proposed the abolition of provocation such that it should be a consideration relevant only in mitigation of punishment. This proposal has been criticised (1990) 14 Criminal Law Journal 383 at 386 on the ground that the "powerful stigmatising label of 'murderer' should be confined" to killing in cold blood. Compare earlier Victorian proposals noted in Dixon, "A Blueprint for Heroism or a Rational and Humane Code?" (1983) 7 Criminal Law Journal 132 at 138-9. The 1982 legislation in New South Wales itself followed the abolition of the mandatory life sentence for murder; see (1983) 7 Criminal Law Journal 132 at 140.
[177] For example Stingel v The Queen (1990) 171 CLR 312 at 320; Masciantonio v The Queen (1995) 183 CLR 58 at 71. As to the position in New Zealand the provisions of the Crimes Act 1961 (NZ), s 169(4) have been said to fuse "two discordant notions" giving rise to a "minor growth industry of scholarship", see Brookbanks, "Provocation - Defining the Limits of Characteristics" (1986) 10 Criminal Law Journal 411.
[178] Attorney-General's Department (NSW), Review of the "Homosexual Advance Defence", Discussion Paper (1996) noted (1996) 20 Criminal Law Journal 305; see Mason and Tomsen, Homophobic Violence, (1997) 33 at 39.
[179] Discussion Paper 8 par 10.
[180] Discussion Paper 10.
[181] Discussion Paper 18 pars 56-57.
[182] Discussion Paper 18 par 57; see also Mason and Tomsen, Homophobic Violence, (1997) 33 at 39.
[183] Discussion Paper 19 par 57.
[184] Mison, "Homophobia in Manslaughter: The Homosexual Advance as Insufficient Provocation" (1992) 80 California Law Review 133 at 136.
[185] Various suggestions are made in the Discussion Paper: see 4-5, 22-25; see also Thomsen, "The Political Contradictions of Policing and Countering Anti-Gay Violence in New South Wales" (1993) 5 Current Issues in Criminal Justice 209.
[186] Model Directions for inclusion in the Judge's Bench Book are proposed. See Discussion Paper 22 (pars 68-70).
[187] (1990) 171 CLR 312 at 318-320.
[188] (1990) 171 CLR 312 at 336-337.
[189] Discussion Paper 11 par 15. For a case involving alleged provocation to homicide in the case of a woman suspected of having a lesbian relationship with the accused's wife see R v Radford (1985) 20 A Crim R388 noted Goode, "On Subjectivity and Objectivity in Denial of Criminal Responsibility: Reflections on Reading Radford" (1987) 11 Criminal Law Journal 131.
[190] Mison, "Homophobia in Manslaughter: The Homosexual Advance as Insufficient Provocation" (1992) 80 California Law Review 133 at 134-135, 167-170; see also Dressler, "When 'Heterosexual' Men Kill 'Homosexual' Men: Reflections on Provocation Law, Sexual Advances, and the 'Reasonable Man' Standard" (1995) 85 Journal of Criminal Law and Criminology 726at 735; Mason and Tomsen, Homophobic Violence, (1997) 33 at 37, 133.
[191] Mason, "Violence Against Lesbians and Gay Men", Australian Institute of Criminology (1993); NSW Police Service, "Out of the Blue: A Police Survey of Violence and Harassment Against Gay Men and Lesbians" (1995).
[192] Noted Mison, "Homophobia in Manslaughter: The Homosexual Advance as Insufficient Provocation" (1992) 80 California Law Review 133 at 167-170.
[193] See Mason and Tomsen, Homophobic Violence, (1997) 132 at 133.
[194] Homosexual advance defences were raised in the 1950s in England. See for example R v Cunningham [1959] 1 QB 288 and R v McCarthy [1954] 2 WLR 1044 at 1046-1047;[1954] 2 All ER 262 at 263. Lord Goddard CJ said in McCarthy: "this provocation would no doubt have excused ... a blow, perhaps more than one." Viscount Simon in Holmes v DPP [1946] AC 588 at 601 said: "[A]s society advances, it ought to call for a higher measure of self-control in all cases. ... [T]he law has to reconcile respect for the sanctity of human life with recognition of the effect of provocation on human frailty." Compare the Australian decisions Pritchard v R (1990) 49 A Crim R 67; Stiles v R (1990) 50 A Crim R 13; R v Grmusa (1990) 50 A Crim R 358; R v Preston (1992) 58 A Crim R 328; Whittaker v The Queen (1993) 68 A Crim R 476.
[195] The Act, s 23(2)(b) "[t]hat it was reasonably calculated to deprive an ordinary person of the power of self-control, and did in fact deprive the accused of such power."
[196] New South Wales, Legislative Assembly, Parliamentary Debates (Hansard)11 March 1982 at 2482. See criticisms Weisbrot, "Homicide Law Reform in New South Wales" (1982) 6 Criminal Law Journal 248 at 256-268.
[197] (1977) 138 CLR 601 at 625-627.
[198] New South Wales, Legislative Assembly, Parliamentary Debates (Hansard)11 March 1982 at 2486.
[199] New South Wales, Legislative Assembly, Parliamentary Debates (Hansard)11 March 1982 at 2486.
[200] (1990) 171 CLR 312.
[201] R v Baraghith (1991) 54 A Crim R240; cf R v Mungatopi (1991) 57 A Crim R 341 noted (1992) 16 Criminal Law Journal 429.
[202] Samuels JA, Loveday J concurring; Enderby J dissenting.
[203] (1991) 54 A Crim R240 at 243-244.
[204] Baraghith v The Queen (1991) 66 ALJR 212 per Deane, Toohey and Gaudron JJ.
[205] Transcript of Proceedings, 10 December 1996 at 13, 15.
[206] See also Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645 at 665; Stingel v The Queen (1990) 171 CLR 312 at 320; Masciantonio v The Queen (1995) 183 CLR 58 at 66. But note that the code defence has given rise to a conflict of judicial opinion. See O'Regan, "The Definition of Provocation as a Qualified Defence under the Griffith Code" (1989) 13 Criminal Law Journal 165. See also R v Jabarula noted (1989) 13 Criminal Law Journal 343.
[207] See for example Dixon J in Packett v The King (1937) 58 CLR 190 at 217-218 ("At common law the test of provocation is ... whether it would suffice to deprive a reasonable man in his situation of self-control"); Windeyer J in Parker v The Queen (1963) 111 CLR 610 at 655 ("[T]he matter must be considered from the standpoint of the mind of an ordinary man in the circumstances") and Brennan, Deane, Dawson and Gaudron JJ in Masciantonio v The Queen (1995) 183 CLR 58 at 69 ("Whether an ordinary person could have reacted in the way in which the appellant did [might depend on whether] the provocation offered by the deceased was, in the circumstances in which the appellant found himself, of a high degree.") (emphasis added in each case)
[208] For example Quartermaine v The Queen (1980) 143 CLR 595 at 600-601; Wilde v The Queen (1988) 164 CLR 365 at 372-373; Whittaker v The Queen (1993) 68 A Crim R 476 at 484; R v Jones (1995) 38 NSWLR 652 at 659, 664.
[209] Mraz v The Queen (1955) 93 CLR 493 at 514.
[210] R v Storey (1978) 140 CLR 364 at 376.
[211] Packett v The King (1937) 58 CLR 190 at 217-218 per Dixon J; Johnson v The Queen (1976) 136 CLR 619 at 633 per Barwick CJ; R v Tumanako (1992) 64 A Crim R 149; Masciantonio v The Queen (1995) 183 CLR 58 at 68; Lee Chun-Chuen v The Queen [1963] AC 220 at 230.
[212] (1963) 111 CLR 610 at 628 per Dixon CJ, at 660 per Windeyer J.
[213] (1964) 111 CLR 665 at 680.
[214] (1995) 183 CLR 58.
[215] (1995) 183 CLR 58 at 80.
[216] (1995) 183 CLR 58 at 70.
[217] (1995) 183 CLR 58 at 70.
[218] Stingel v The Queen (1990) 171 CLR 312 at 336-337.
[219] (1990) 171 CLR 312 at 324.
[220] [1986] 1 SCR 313 at 343.
[221] cf Howe, "More Folk Provoke Their Own Demise" (1997) 19 Sydney Law Review 336 at 355.