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[1993] TASSC 62
Supreme Court of Tasmania
1993-06-11
Cox J
Original judgment source is linked above.
ATTORNEY-GENERAL'S REFERENCE NO 1 of 1992: RE THE QUEEN v DAMIEN JOHN ROETZ
Criminal law - Provocation - Whether loss of self-control must follow suddenly upon the provocation relied upon.
Solicitors for appellant: Director of Public Prosecutions
Answer the question referred to the Court as follows:
Q For there to be a defence of provocation within the meaning
of the Criminal Code, s160 is there, in addition to a
requirement that the offender act upon it on the sudden, a
requirement that the loss of the power of self-control by the
offender follow suddenly upon the wrongful act or insult
relied upon?
A Yes.
COX J The Attorney-General has referred to the Court a question of law which arose out of the trial for murder of the respondent Damien John Roetz. He was acquitted of that charge but found guilty of manslaughter. The question was phrased in the original application as follows:
"Did the learned trial judge err in law in finding that if
there was evidence of a wrongful act or acts (or insult) and
if there was evidence upon which it would be open to a jury
to find that for some reason the accused was not deprived of
the power of self-control until a long time after the doing
of the wrongful act (or insult), that wrongful act (or
insult) would still be capable of constituting provocation
provided that the accused thereupon acted on the sudden and
before there had been time for his passion to cool."
2. Upon the hearing the question was, at the suggestion of the Court, reformulated in the following terms:
"For there to be a defence of provocation within the meaning
of the Criminal Code, s160 is there, in addition to a
requirement that the offender act upon it on the sudden, a
requirement that the loss of the power of self-control by the
offender follow suddenly upon the wrongful act or insult
relied upon."
3. At the trial the respondent made an unsworn statement in which he said that he had gone to the home of the deceased at Latrobe on 1 March 1992 with another youth intending to knock out the deceased, who was the head steward of the local RSL Club and the custodian of its keys, tie him up, take the keys and go to the club where they would take money from the safe and abscond to Melbourne. The agreement between them was that the other youth would hit the deceased across the back of the neck, after which the respondent would tie him up with rope they assumed would be on the premises.
4. The respondent gave a history of grave and persistent sexual molestation of him by the deceased for several years, starting when the respondent was still at primary school and continuing with some intermissions until the months of January and February 1992 when, he said, it became worse. He was at this time aged 18 years and 4 months. A few days before the homicide on 1 March 1992 the respondent had been at the deceased's home working on a car when the latter attempted to molest him again, and shortly thereafter on the same day had sexually assaulted him in his (the deceased's) caravan. He said he brewed over this incident over the next few days and decided to go to see the deceased to demand an explanation. On the way there with his companion the agreement to rob the deceased was formed. Near to the house they were picked up by the deceased in a car and transported there by him. In the car the deceased touched the respondent on the thigh. This was accepted by the prosecutor as sufficient material to call for a direction on provocation but can be ignored for present purposes because the learned trial judge made a ruling which raises the present question on the assumption that the jury did not accept that that event occurred or that it amounted in fact to provocation.
5. About half an hour after their arrival at the house the other youth struck the deceased with a heavy object and he fell to the floor. It was common ground that the respondent thereupon procured a large rock from outside, returned and struck the deceased several times on the head with it and also struck him with a shovel. The blows caused death. Thereafter the deceased's keys were taken, as was his car, and the two burgled the club, stole money from the safe and fled to Melbourne.
6. Evidence from a psychiatrist, Dr Sale, was led, the substance of which was that the respondent suffered a "sexual child abuse accommodation syndrome", a feature of which is an inability to do anything to prevent further victimisation by his molestor, or to denounce him, and feelings of utter helplessness. When, however, due to the disabling blow from the respondent's companion, the deceased was rendered helpless and the situation was reversed, Dr Sale's opinion was that the respondent's "rage that would have been there for years would have been released at that moment when (the respondent) suddenly had power over the person who had been abusing him". The learned trial judge ruled that it would be open to the jury to find that because of the respondent's mental and emotional condition the deceased's earlier wrongful acts did not deprive him of the power of self-control until his companion struck the deceased and that he thereupon acted on a sudden and before there was time for his passion to cool. He held that the acts of sexual abuse before the date of the homicide were capable in themselves of constituting provocation even if the jury were not to find that the deceased did any wrongful act on that day.
7. The Tasmanian Criminal Code, which in this respect follows closely s176 of the draft Code prepared by the Criminal Code Bill Commission of 1879 for submission to the British Parliament and which forms the genesis of the Canadian Criminal Code provisions on provocation (Stingel v The Queen [1990] HCA 61; (1990) 171 CLR 312 at 321) provides relevantly:
"160 - (1) Culpable homicide, which would otherwise be
murder, may be reduced to manslaughter if the person who
causes death does so in the heat of passion caused by sudden
provocation.
(2) Any wrongful act or insult of such a nature as to be
sufficient to deprive an ordinary person of the power of
self-control, and which, in fact, deprives the offender of
the power of self-control, is provocation, if the offender
acts upon it on the sudden, and before there has been time
for his passion to cool.
(3) Whether the conditions required by subsection (2) were or
were not present in the particular case is a question of
fact, and the question whether any matter alleged is, or is
not, capable of constituting provocation is a matter of law."
8. No argument was presented to us that if so found by the jury the deceased's earlier wrongful acts would not have met the criteria laid down in s160(2), that is that they were unlawful acts of the necessary nature, that they in fact deprived the respondent of the power of self-control, and that he acted upon that provocation on the sudden and before there had been time for his passion to cool; but though such criteria meet the definition in s160(2) of "provocation", s160(1) provides that the reduction from murder to manslaughter is to occur if the person who causes death does so in the heat of passion caused by sudden provocation. Counsel for the Attorney-General submits that the use of that adjective imposes an overriding requirement of suddenness additional to the requirement in subs(2) that the offender act upon the provocation which has deprived him of the power of self-control "on the sudden" and that before the defence is available there must be evidence that the loss of the power of self-control by the offender follows suddenly upon the wrongful act or insult relied upon.
9. It is as well, before embarking upon the question imposed for consideration, to remind oneself, as did Nettlefold J in Jeffrey v The Queen (1982) Tas R 199 at 212:
"... that the section is part of a code. The Code was
'intended to replace the common law, and its language should
be construed according to its natural meaning and without any
presumption that it was intended to do no more than restate
the existing law. It is not the proper course to begin by
finding how the law stood before the Code, and then to see if
the Code will bear an interpretation which will leave the law
unaltered': Brennan v The King [1936] HCA 24; (1936) 55 CLR 253, at p 263."
10. Prima facie the use of the word "sudden" in subs(1) appears to qualify that which by subs(2) is defined or delineated as "provocation". If it adds nothing to that contained in subs(2) it would seem to serve no useful purpose at all. If it is merely descriptive of the conditions required by sub(2) to be fulfilled before attracting the reduction of guilt from murder to manslaughter, there is no apparent reason why the draftsman should not have repeated the expression "sudden provocation" in the body of that subsection instead of merely using the word "provocation".
11. Section 160(1) has not hitherto received direct consideration by this Court, but in Hall v The Queen unreported 85/1968, the Court of Criminal Appeal had before it an appeal against the refusal of the trial judge to leave provocation to the jury in circumstances where the last clearly identifiable wrongful act or insult had occurred some days before the fatal shooting. In the course of his reasons for judgment, Crisp J referred to the argument that the evidence of past wrongful events, some of them long past, supplied not only a background or context but also the content of the wrongful act or insult the Code requires. At 8 he said:
"I know of no authority which would support such extensions
of the central principle of a provocative act or insult which
offered directly to the assailant causes the emotional
explosion on the sudden that the law accepts in mitigation
though it does not forgive.
While past wrongs are no doubt properly inquired into and
looked at to assist in evaluating the emotional tension that
present affronts may lead to (Mehemet Ali v The Queen (1957)
WALR 28) there is really nothing in the foregoing which would
constitute provocation in law. The doctrine was not evolved
to feed resentment or excuse revenge no matter how grievous
the initial wrong. Though 'the law condescends to human
frailty, it will not indulge human ferocity' (R v Kirkham
(1837) 8 Car and P, 115). More aptly still it has been said
by the judicial committee, 'some provocative act must not be
seized upon by the accused (who does not as a result act
suddenly and in the heat of passing) as providing an
appropriate moment and a convenient excuse for carrying out
some previously existing purpose or acting upon an old
grudge'. (Parker v The Queen [1964] UKPCHCA 1; 111 CLR 665 at 681)."
12. At 9, referring to the view of the facts most favourable to the appellant he said:
"There is no room in my opinion for the operation of a
doctrine which out of consideration for human frailty would
reduce the guilt of one who kills on the sudden in the heat
of passion aroused by some contemporaneous act or insult of
such a nature as to be sufficient to deprive an ordinary man
of the power of self-control".
13. The other members of the Court (Crawford and Chambers JJ) did not directly address the question.
14. There is in this dictum of Crisp J a recognition of the need for suddenness in respect of two matters: the fatal act must be done "on the sudden" and the arousal of passion must be caused by a contemporaneous or sudden wrongful act or insult. It is not immediately evident whether both aspects to which Crisp J referred are implicit in early writings and authorities such as East in his Pleas of the Crown 1803 vol1, 238, where he says there must be:
"Such a provocation as the law presumes might in human
frailty heat the blood to a proportionable degree of
resentment, and keep it boiling to the moment of the fact."
15. and the instruction to the jury of Tindal CJ in R v Hayward (1833) 6 Car and P 157 at 159 [1835] EngR 229; (172 ER 1188 at 1189) that the question for them was:
"... whether the mortal wound was given by the prisoner while
smarting under a provocation so recent and so strong, that
the prisoner might not be considered at the moment the master
of his own understanding; in which case, the law, in
compassion to human frailty, would hold the offence to amount
to manslaughter only: or whether there had been time for the
blood to cool, and for reason to resume its seat, before the
mortal wound was given; in which case the crime would amount
to wilful murder."
16. In both extracts the emphasis seems to be on the requirement that once the passion is aroused only those acts done before there has been time for it to cool may qualify for reduction to manslaughter. On the other hand, East spoke of the blood being heated to boiling point rather than boiling spontaneously, while Tindal CJ confined the availability of the defence to the moment of the act when the offender was in fact deprived of the power of self-control by a recent provocation rather than by an instantaneous one. It seems to have been assumed without explicit formulation that in the ordinary course of human affairs a provocative act will produce an immediate arousal of passion and that if there is a significant delay between the act relied upon and the fatal one, either the former did not operate to heat the blood to the required degree, though brooding upon it may have done, or that the offender had cooled down or had had time to do so and was no longer acting without the power of self-control due to provocation when he did the latter.
17. Thus although the question of delay is normally a jury one, there are instances where the lapse of time between the provocative act and the fatal one have been such that provocation as a defence has been withdrawn from the jury's consideration on the basis that no reasonable jury could find that the offender was thereby provoked to a loss of self-control or acted thereunder on the sudden. In Albis v The King (1913) 9 Cr App R 158 over twenty-four hours elapsed and provocation was held to be properly not left; in Hall v The King (1928) 21 Cr App R 48 the defence was left where the stabbing occurred twenty minutes after the provocative act; while in Kwaku Mensah v The King (1946) AC 83 at 93 their Lordships said:
"There may, no doubt, be cases where the facts were such that
they could not be the subject of extenuation; for instance, a
blow or wounding one day, and a killing after a night had
elapsed."
18. Another instance is Ibrams v The Queen [1981] EWCA Crim 3; (1982) 74 Cr App R 154 where the defence was not left, several days having elapsed.
19. Notwithstanding the lapse of time after serious provocative conduct, it is well established that other wrongful or insulting incidents initiated by the deceased, not sufficient in themselves to constitute provocation, may revive the effects of the earlier conduct and acting thereon may operate as the final straw, requiring that the offender be judged on the whole background of his act (Glanville Williams' Criminal Law, 1st ed, 481-482; Mehemet Ali v The Queen (1957) WALR 28).
20. The common law has continually characterized the conditions essential to the defence of provocation as involving the performance of the actus reus during a sudden and temporary loss of self-control caused by some act or series of acts of the deceased (R v Duffy (1949) 1 All ER 932, R v Thornton (1992) 1 All ER 396). In so describing the criteria, there may have been some telescoping of the two aspects of suddenness, but the doctrine has always contemplated that while the loss of control must be suddenly induced, it need not manifest itself in the immediate performance of the fatal act. So long as that is performed while the offender remains deprived of the power of self-control by the provocative conduct which induced it, the extenuation will be available and the act will, in addition, be said to have been done on the sudden. In R v Ahluwalia [1992] EWCA Crim 1; (1992) 4 All ER 889 this position was reiterated by Lord Taylor CJ, delivering the judgment of the Court of Appeal, but the Court was presented with material which on one reading suggested that the loss of control during which the fatal act was done, though sudden and temporary and caused by the deceased's provocative behaviour, had been a reaction delayed up to 2 1/2 hours by virtue of a clinically recognized syndrome which can affect women who have been subjected over a period of time by their partners to violent treatment. His Lordship said, at 896:
"We accept that the subjective element in the defence of
provocation would not as a matter of law be negatived simply
because of the delayed reaction in such cases, provided that
there was at the time of the killing a 'sudden and temporary
loss of self-control' caused by the alleged provocation.
However, the longer the delay and the stronger the evidence
of deliberation on the part of the defendant, the more likely
it will be that the prosecution will negative provocation."
21. In Van Den Hoek v The Queen [1986] HCA 76; (1986) 161 CLR 158 Mason J, dealing with the Western Australian Criminal Code, emphasized "a sudden and temporary loss of self-control as the central element in the doctrine." (at 168). He made it clear that the loss of control could be "due to an emotion such as fear or panic as well as anger or resentment" ibid, and that the absence of self-control might be inferred from the offender's fear and anxiety (at 169), a condition which in many cases, I venture to suggest, might well persist for some time before the fatal act is done.
22. In R v Ahluwalia (supra) counsel submitted that women who have been subjected frequently over a period to violent treatment may react to the final act or words by what he called "a 'slow burn' reaction rather than by an immediate loss of self-control". Given the facts of the case disclosed by the report, the distinction he drew was, I think, a little misleading. What he seems to have been describing was a state of emotional turmoil which was suddenly induced by the deceased's provocative conduct at or shortly before midnight when the appellant retired to a separate bedroom. About 2.30am she did the fatal act. Her "slow burn" reaction was nonetheless, it could be inferred, suddenly induced by the provocative conduct and bespoke a loss of the power of self-control then which only manifested itself in fatal action 2 1/2 hours later. I do not regard his Lordship's comment that "the subjective element in the defence of provocation would not as a matter of law be negatived simply because of the delayed reaction in such cases" as an acceptance of the proposition that the provocative conduct need not produce a sudden loss of the power of self-control. What he emphasized was that it need not be followed immediately by the fatal act. Hence he said approvingly of the trial judge's direction to the jury:
"He did not suggest to the jury that they should or might
reject the defence of provocation because the last
provocative act or word of the deceased was not followed
immediately by the appellant's fatal acts." (at 896)
23. Both aspects of suddenness have been held essential to provocation under the provisions of the Canadian Criminal Code. In R v Daniels (1983) 7 CCC (3d) 542 Laycraft JA, delivering the judgment of the Northwest Territories Court of Appeal, said at 549:
"Suddenness is a necessary element of both the insult and the
reaction to it. That is specified in sec 215 by the words
'sudden provocation' and by the requirement that the insult
be acted upon 'on the sudden and before there has been time
for his passion to cool'."
24. His Lordship then cited the words of Rand J in the Supreme Court of Canada in R v Tripodi (1955) 4 DLR 445 at 446:
"'Suddenness' must characterise both the insult and the act
of retaliation ... the ... insult must strike upon a mind
unprepared for it ... it must make an unexpected impact that
takes the understanding by surprise and sets the passion
aflame."
25. The primary meaning of sudden is happening or coming without warning or premonition and on the facts of Tripodi all the deceased said which could be claimed to be provocative came as no surprise to the appellant. It was entirely appropriate to say that the behaviour relied on by him could not amount to sudden provocation because it did not impact upon a mind unprepared for it. However, with respect, I do not think the dictum of Rand J should be taken as exhaustive so as to exclude the defence of provocation when loss of the power of self-control occurs in a situation where the confrontation is expected and the act or insult predictable, and indeed anticipated, by the offender. But it is not merely any unlawful act or insult of such a nature as to be sufficient to deprive an ordinary person of the power of self-control which constitutes provocation. Before it attains that characterization it has to have the quality of in fact depriving the offender of the power of self-control. Thus it is the composite of provocative act of the required nature and the consequent loss of the power of self-control which in my view must, by virtue of s160(1), be sudden. In many cases this will be produced by the unexpected impact of an unlawful act or insult upon a mind unprepared for it, but the possibility still remains that an expected wrongful act or insult may swiftly produce a loss of the power of self-control in circumstances where the composite may still be described as "sudden provocation". In either event a close temporal link must exist between the act and the consequent loss of the power of self-control, even though some time elapses before the fatal act is done.
26. I would answer the question in the affirmative.
CRAWFORD J Damian John Roetz was acquitted of murder contrary to the Criminal Code, s158 but convicted in the alternative of manslaughter under s159. The learned trial judge left provocation to the jury under s160 having ruled that if there was evidence upon which it would be open to the jury to find that for some reason the accused was not deprived of the power of self-control until a long time after the doing of the wrongful act, that wrongful act would still be capable of constituting provocation provided that the accused thereupon acted on the sudden and before there was time for his passion to cool.
2. Pursuant to s388AA the Attorney-General has referred for determination by the court the following question of law:
"For there to be a defence of provocation within the meaning
of the Criminal Code s160, is there in addition to the
requirement that the offender acted upon it on the sudden, a
requirement that the loss of the power of self-control by the
offender follows suddenly upon the wrongful act or insult
relied upon?"
3. Counsel for the Attorney-General submitted in effect that there must be "immediacy" between the provoking conduct and the offender's reaction to it. My conclusion is that that is correct and that the requirement in the Code for "sudden" provocation in particular reflects this. Professor Howard in his Criminal Law 4th edn (1982) at 78 referred to the element of immediacy in this passage:
"Provocation is any unlawful act or series of acts of a kind
which would deprive an ordinary person of the self-control,
and which in fact deprives D of self- control, if D acts
under their immediate influence before he has had time to
recover himself."
4. Those words have been repeated in Professor Fisse's 5th edition of the work published in 1990.
5. The question raised does not depend for its answer upon a consideration of the evidence at Roetz's trial. But a reference to some of the evidence may assist to better understand the nature of the question. The accused was aged eighteen years at the time of the homicide. He claimed a number of acts by the deceased as constituting provocation. They included many acts of sexual abuse commencing when the accused was in grade 5 and continuing until three or four days before the day of the homicide. On that day the accused resolved with another that they would go to the deceased's house where the accused's companion would hit the deceased on the head and render him unconscious. Thereupon the accused would tie the deceased up and he and his companion would take from the deceased keys to an RSL Club for the purpose of burglary and theft. When they arrived at the deceased's house he was not present and they left on foot. However he happened to come upon them in his car and they got in and travelled with him back to the house. On the way, according to the accused, the deceased put his hand on the accused's thigh. At the house, possibly half and hour later, the deceased was struck by the accused's companion whereupon the accused hit him on the head with a rock and a shovel. It was part of the case for the accused that the conduct of the deceased towards him, the sexual abuse and the placing of the hand on his thigh, amounted to provocation as a result of which, and upon seeing the deceased on the ground, he was deprived of the power of self-control. Psychiatric evidence suggested that although the accused was not deprived of the power of self-control when the acts amounting to provocation were committed, when the accused saw the deceased on the ground they suddenly caused such a loss and he struck the deceased before there was time for his passion to cool.
6. The common law required the provocation to be recent and strong. The passage of time between the conduct amounting to provocation and the acting upon it was often of critical importance, for if there was time for any passion to cool following it the defence of provocation was not open. So in R v Kirkham 8 Car and P 115 at 117, Coleridge J instructed a jury in these terms:
"If, therefore, a person being stung and excited inflicts a
fatal blow or wound, provided the provocation be sufficient,
and acting upon him at the time, and recent, he will only be
guilty of manslaughter; and in this the law does not depart
from its original principle, because it then supposes that
the individual was not guilty of malice prepense, but that
what he did was done in a moment of overpowering passion,
which prevented the exercise of reason ; so that the general
distinction is this : in the one case the man is cool, and
must be taken to have malice in the other, if he has had
sufficient provocation, and has acted from that provocation
while it is fresh, then he has not malice."
Similarly in R v Hayward 6 Car and P 157 at 159, Tindal CJ instructed a jury:
" the remaining and principal question for their
consideration would be, whether the mortal wound was given by
the prisoner while smarting under a provocation so recent and
so strong, that the prisoner might not be considered at the
moment the master of his own understanding ; in which case,
the law, in compassion to human frailty, would hold the
offence to amount to manslaughter only or whether there had
been time for the blood to cool, and for reason to resume its
seat, before the mortal wound was given; in which case the
crime would amount to wilful murder."
7. That view was approved by the Court of Criminal Appeal in Hall (1928) 21 Cr App R 48 at 54.
8. In Mancini v Director of Public Prosecutions (1942) AC 1 at 9 Viscount Simon referred to the particular importance of considering "whether a sufficient interval has elapsed since the provocation to allow a reasonable man time to cool". In Holmes v Director of Public Prosecutions (1946) AC 588 at 597 Viscount Simon emphasised "the importance of considering, where the homicide does not follow immediately upon provocation whether the accused, if acting as a reasonable man had 'time to cool'." The Privy Council in Kwaku Mesan v R (1946) AC 83 at 93 advised that the law excluded the benefit of provocation "where after the provocation such a time elapsed or such circumstances occurred that a person of ordinary character might have recovered his self-control".
9. While accepting that "immediacy" had been a requirement of the law, Professor Glanville Williams in his Textbook of Criminal Law 2nd edn (1983) 530 postulated that it does not seem very important when the provocation may be a long-standing grievance becoming worse for being brooded over and that it is irrational to think of "simmering down" when jealousy and anger have been built up over the years. He suggested that in English courts at first instance there had been a relaxation of the rule (without admitting it) but the requirement of immediacy still applied in England at appellate level and the Criminal Law Revision Committee had recommended its continuance. However some change appears to have occurred recently in the attitude of the Court of Criminal Appeal in England so that the requirement of immediacy may have been eased to some extent. R v Ahluwaii [1992] EWCA Crim 1; (1992) 4 All ER 889 at 896.
10. I turn from a consideration of English common law cases to authorities in this country. In R v Croft (1981) 1 NSWLR 126 at 142 O'Brien CJ, with whom the other members of the Court of Criminal Appeal agreed, said:
"Throughout the examples given by Hale and by Foster and
other institutional writers, as well as in the cases, it was
made clear that for a killing done intentionally to be
extenuated to manslaughter it must be unpremeditated and done
whilst in the transport of passion. There must therefore be
a closeness in time between the provocative incident and the
retaliatory killing frequently described as an act done
suddenly in the heat of passion caused by the provocation."
11. A similar view was expressed by Barry J in R v Jeffrey [1967] VicRp 51; (1967) VR 467 at 478 where he said that it is still the law that there must be an element of suddenness in the reaction to the provocation by way of loss of self-control. The majority of the court in that case approved of a direction to the jury which included the following passage (it is set out at 475):
"Another aspect of provocation it is important to bear in
mind is that it must be sudden, it must be grave, the acts
which are relied on to constitute it. The act which has
provoked the murderous attack must immediately or very
closely precede that act, or, to put it the other way, the
murderous attack must follow immediately or closely upon the
act of provocation. If a person has time to cool off after
the alleged act of provocation, then the intention which he
formed to do the murderous act cannot be said to arise from a
sudden passion resulting in a temporary loss of self-control
but must be regarded as a deliberate decision arrived at as a
result of what has occurred."
12. It should be mentioned that in Moffa v R [1977] HCA 14; (1977) 138 CLR 601 at 628 Murphy J rejected the need for immediacy between the provocation and the acting upon it, but cited no authority in support of his rejection.
13. The law of provocation in this State is to be found in the Criminal Code, s160 which so far as is relevant provides:
"160 - (1) Culpable homicide, which would otherwise be
murder, may be reduced to manslaughter if the person who
causes death does so in the heat of passion caused by sudden
provocation.
(2) Any wrongful act or insult of such a nature as to be
sufficient to deprive an ordinary person of the power of
self-control, and which, in fact, deprives the offender of
the power of self-control, is provocation, if the offender
acts upon it on the sudden, and before there has been time
for his passion to cool.
(3) Whether the conditions required by subsection (2) were or
were not present in the particular case is a question of
fact, and the question whether any matter alleged is, or is
not, capable of constituting provocation is a matter of law."
14. It was pointed out by Neasey J in Kearnan v R unreported 80/1068 at 8 that s160 is a very close copy of the Draft Code of 1897, s176 and that the report of the Commissioners, to which the Draft Code is appended, shows in relation to s176 that the only alteration of the common law the Commissioners thought they were introducing was to widen the scope of conduct which might constitute provocation so as to include words spoken. As a consequence the word "insult" was introduced. A possible further alteration, as was pointed out by Neasey J, was in relation to illegal arrest. See s160(5).
15. A consideration of s160 indeed suggests that the concept of provocation as understood by the common law at the time of its enactment, was retained at least to the extent that "sudden provocation" was required to heat the passion and deprive the offender of the power of self-control and that the offender was not entitled to rely on provocation unless he acted on it "on the sudden, and before there has been time for his passion to cool". Read literally the requirement of immediacy between the provoking act and the acting upon it seems apparent. From a number of dicta that appears to have been the view of judges in this State. In R v Kelly 70/1970 at 4 the Chief Justice referred to the need for "sudden provocation" and for the offender to "act upon it on the sudden, and before there has been time for his passion to cool". His Honour continued:
'The conduct of the deceased before the prisoner left the
house could not constitute sudden provocation causing the
prisoner to lose self-control at the time of the shooting.
The time lapse would have been at least about 20 minutes.'
16. In Hall v R 85/1968 this Court dismissed an appeal against a conviction for murder. The only complaint made by the appellant about his trial concerned the refusal of the trial judge to leave the issue of provocation to the jury. The appellant had sought to rely on acts of provocation which occurred before the day of the homicide. Crisp J appears to have accepted there was a need for immediacy between the wrongful act or insult and the acting upon it. Referring to submissions by the appellant's counsel, his Honour said at 8:
"In other words, he sought to refer to evidence of past
events - and some of them long past - not only as supplying a
background or context but as supplying the content of the
wrongful act or insult which the Code requires. Initially he
said that, 'No one incident is relied on, but the cumulative
effect of the whole course of conduct since September 1966'.
Alternative arguments were developed related to the preceding
Tuesday night (suggested as the critical event) and then to
speculations as to the causes for the wife's appearance at
the hotel on the Saturday. (Cf Holmes v Director of Public
Prosecutions, (1946) AC, 588; Da Costa v R (HC) unreported
of 22nd August, 1968). I know of no authority which would
support such extensions of the central principle of a
provocative act or insult which offered directly to the
assailant causes the emotional explosion on the sudden that
the law accepts in mitigation though it does not forgive.
While past wrongs are no doubt properly enquired into and
looked at to assist in evaluating the emotional tension that
present affronts may lead to (Mehemet Ali v R, (1957) WALR
- there is really nothing in the foregoing which would
constitute provocation in law. The doctrine was not evolved
to feed resentment or excuse revenge no matter how grievous
the initial wrong. Though 'the law condescends to human
frailty, it will not indulge human ferocity' (R v Kirkham,
(1837) 8 Car and P, 115). More aptly still it has been said
by the Judicial Committee, ' some provocative act must not be
seized upon by the accused (who does not as a result act
suddenly and in the heat of passion) as providing an
appropriate moment and a convenient excuse for carrying out
some previously existing purpose or acting upon an old
grudge'. (Parker v R[1964] UKPCHCA 1; , 111 CLR, 665, at p681)."
At 9 and 10 Crisp J referred further to the facts and said
that: " there is no room in my opinion for the operation of a
doctrine which out of consideration for human frailty would
reduce the guilt of one who kills on the sudden in the heat
of passion aroused by some contemporaneous act or insult of
such a nature as to be sufficient to deprive an ordinary man
of the power of self-control. There is here no evidence of
a sudden spontaneous reflex, taking charge of the offender
and causing him impulsively to act without premeditation of
the crime to be committed or the means used to effect it."
17. Chambers J at 5 pointed out that for the defence of provocation to apply the person who causes death must do so in the heat of passion caused by sudden provocation, and held that on the evidence there was nothing capable of satisfying the test of sudden provocation.
18. More recently in Hutton v R [1986] TASSC 11; (1986) Tas R 24 at 30 the Chief Justice rejected the availability of events long past amounting to provocation, although not their relevancy:
" Although past events may not be relied upon as constituting
provocation the history of the relationship between the
accused and the victim is capable of being material in
determining the significance and gravity of the act or insult
relied upon as constituting provocation; see Hall v The Queen
No 85/1968".
19. The provisions of the Western Australian Criminal Code, s281 were under consideration in Dunstan v R (1931)33 WALR 118. The section provided for a verdict of guilty of manslaughter instead of murder where the accused "does the act which causes death in the heat of passion caused by sudden provocation, and before there is time for his passion to cool". At 120 McMillan CJ, with whom the other members of the Court of Criminal Appeal agreed, stated that:
"In all cases in order to reduce homicide upon provocation to
manslaughter, it is essential that the wounding appears to
have been inflicted immediately upon the provocation being
given; for if there is a sufficient cooling time for passion
to subside and reason to interpose, and the person so revoked
afterwards kills the other this is deliberate revenge, and
not heat of blood, and accordingly amounts to murder."
20. The final authority to which I refer is Canadian. In R v Daniels (1983)7 CCC (3d) 542 the Northwest Territories Court of Appeal considered the Criminal Code, s215 which was in virtually identical terms to those of s160. At 549 the court said:
"Suddenness is a necessary element of both the insult and the
reaction to it. That is specified in s 215 by the words
'sudden provocation' and by the requirement that the insult
be acted upon 'on the sudden and before there was time for
his passion to cool'. Rand J said in R v Tripodi (1955) 4
DLR 445, (1955) SCR 438 at p 443:
'"Suddenness" must characterize both the insult and the act
of retaliation the ... insult must strike upon a mind
unprepared for it ... it must make an unexpected impact that
takes the understanding by surprise and sets the passions
aflame'."
21. At 554 the court held that the "requirement for suddenness of insult and reaction does not preclude a consideration of past events. The incident which finally triggers the reaction must be sudden and the reaction must be sudden but the incident itself may well be coloured and given meaning only by a consideration of events which preceded it."
22. The requirement in s160(1) that the provocation must be sudden together with the requirement in subs(2) that the offender must act upon it on the sudden and before there has been time for his passion to cool impose the requirement for immediacy to which I have referred. If there was no need for immediacy then the requirement for suddenness in both subsections would not be there, for otherwise all that would be necessary would be a wrongful act or insult which would deprive the offender of the power of self-control and an acting on it before there was time for his or her passion to cool, combined with satisfaction of an objective test based on what an ordinary person might have done. In particular if an offender is to be entitled to rely on a wrongful act or insult which occurred a long time in the past the expression "sudden provocation" would be an inappropriate description. The common law at the time of the enactment of the Code, and since, and the decisions of courts interpreting similar statutory provisions support this conclusion. Courts have consistently looked for recent provocation although they have been prepared to take into account earlier acts of provocation to measure the effect the recent provocation had on the offender and the effect it may have had on an ordinary person. The answer to the question for determination should therefore be in the affirmative.
ZEEMAN J Pursuant to the provisions of the Criminal Code ("the Code"), s388AA, the Attorney-General has referred to the Court a question of law which arose in a case in which Damien John Roetz ("the respondent") was acquitted of one count of murder, although convicted of manslaughter on that count. The Court has heard the respondent by counsel pursuant to the provisions of the Code, s388AA(6)(a).
2. At the trial of the respondent an issue was raised as to whether certain alleged wrongful acts of the deceased, said to have been committed over a period of many years prior to the respondent committing the act which resulted in the death of the deceased, were capable of constituting provocation. The learned trial judge ruled that such wrongful acts were capable of constituting provocation and directed the jury accordingly. The question referred to the Court raises the issue as to whether the learned trial judge was correct in so directing the jury.
3. The question of law referred by the Attorney-General is in the following terms:
"For there to be a defence of provocation, within the meaning
of the Criminal Code, s160, is there in addition to a
requirement that the offender act upon it on the sudden a
requirement that the loss of the power of self-control by the
offender follow suddenly upon the wrongful act or insult
relied upon?"
4. There was evidence before the jury of numerous acts of sexual abuse by the deceased towards the respondent from the time that the respondent was in grade 5 of primary school (which would appear to have been in about 1983) until February 1992 and that those acts were committed on a regular and frequent basis, except for periods of some months in each of 1990 and 1991. There was psychiatric evidence that the various acts of sexual abuse committed by the respondent did not deprive the respondent of the power of self-control until such time as a man, who was with the respondent, struck the deceased and that thereupon the respondent, provoked by the earlier conduct, acted on the sudden before there was time for his passions to cool. There was also evidence of another wrongful act committed by the deceased not long before his death. The learned trial judge directed the jury that that wrongful act also was capable of constituting provocation and the applicant accepts the correctness of that direction. The applicant submits that the earlier acts of the deceased were incapable of constituting provocation.
"I hold that it would be open to the jury to find that each
of those acts, that is, those acts done by the deceased
towards the accused before the 1st of March, was a wrongful
act which was of such a nature as to be sufficient to deprive
an ordinary person of the power of self-control. However
sub-section 2 of Section 160 of the Criminal Code requires
that in order for such a wrongful act to constitute
provocation the accused must act upon it on the sudden before
there has been time for his passion to cool. Now in the
great majority of cases the evidence is such that in order to
satisfy that condition the accused would have to be shown to
have reacted within a short time of the doing of the wrongful
act. But Section 160 does not impose any particular time
limit within which an accused must react. Rather the Section
requires that the accused must act immediately after he is
deprived of the power of self-control and before there has
been time for his passion to cool. Thus I hold that if there
is evidence upon which it could be open to a jury to find
that for some reason the accused was not deprived of the
power of self-control until a long time after the doing of
the wrongful act, that wrongful act would still be capable of
constituting provocation provided that the accused thereupon
acted on the sudden and before there'd been time for his
passion to cool. I do not accept the submission made by the
Crown that such a conclusion is in conflict with the passages
which he cited from the judgments of Gibbs, J and Murphy, J
in Moffa's case. The reference by Gibbs J to the events of
the day of the killing was appropriate in the factual
circumstances, the particular factual circumstances of that
particular case. But there's no suggestion that his Honour
was in that passage purporting to lay down as a matter of law
that only antecedent events which occur within that sort of
time-frame are capable of constituting provocation. Murphy,
J's use of the word 'temporary' must be read in the same
light. Further, it should be noted that Murphy J and perhaps
the other Justices in that case appear to be referring to a
situation in which the accused has lost control, temporarily
regained it, and then lost it again. Now that is not the
sort of case I'm considering here. What I'm considering is
the special case where there is no initial deprivation of the
power of self-control, but a long delay between the time of
the wrongful act and the time when for the first time that
act causes the accused to be deprived of the power of self
-control. I hold applying the conclusions that I've
expressed to this case that it would be open to the jury to
find, particularly on the basis of Dr Sale's evidence that
because of the accused's mental and emotional condition, the
deceased's wrongful acts did not deprive the accused of the
power of self-control until Wise struck the deceased, and
that the accused thereupon acted on a sudden, and before
there was time for his passion to cool. I hold therefore
that the acts of sexual abuse before the 1st of March 1992
are capable in themselves of constituting provocation, even
if the jury do not find that the deceased did any wrongful
act on that day."
6. The jury was directed in accordance with that ruling.
7. The following are the relevant provisions of the Code:
"160 - (1) Culpable homicide, which would otherwise be
murder, may be reduced to manslaughter if the person who
causes death does so in the heat of passion caused by sudden
provocation.
(2) Any wrongful act or insult of such a nature as to be
sufficient to deprive an ordinary person of the power of
self-control, and which, in fact, deprives the offender of
the power of self-control, is provocation, if the offender
acts upon it on the sudden, and before there has been time
for his passion to cool.
(3) Whether the conditions required by subsection (2) were or
were not present in the particular case is a question of
fact, and the question whether any matter alleged is, or is
not, capable of constituting provocation is a matter of law."
8. In the course of his ruling the learned trial judge considered whether all the wrongful acts disclosed by the evidence were capable of constituting provocation in the terms of s160(2), but he made no reference to s160(1). I do not understand counsel for the Attorney-General to have submitted that the learned trial judge fell into error in concluding that all the wrongful acts were capable of amounting to provocation within the meaning of s160(2). However he submitted that before a wrongful act is capable of constituting provocation which has the effect of reducing to manslaughter culpable homicide which otherwise would be murder such wrongful act not only must satisfy the requirements of s160(2) but additionally must satisfy further requirements imposed by s160(1). Counsel submitted that those further requirements included a requirement that the loss of the power of self-control by the offender follow suddenly upon the relevant wrongful act or insult. He submitted that that requirement is imported by the words "caused by sudden provocation" appearing in s160(1).
9. Counsel for the respondent submitted that the learned trial judge's ruling was in accord with what was said by the Court of Appeal in England, dealing with the relevant section contained in the Homicide Act 1957 (UK), in R v Ahluwalia [1992] EWCA Crim 1; (1992) 4 All ER 889. Lord Taylor CJ, in giving the judgment of the Court, said, at 896:
"(Counsel for the appellant) referred to the phrase 'cooling
off period' which has sometimes been applied to an interval
of time between the provocation relied upon and the fatal
act. He suggests that although in many cases such an
interval may indeed be a time for cooling and regaining self
-control so as to forfeit the protection of the defence, in
others the time lapse has an opposite effect. He submits,
relying on expert evidence not before the trial judge, that
women who have been subjected frequently over a period to
violent treatment may react to the final act or words by what
he calls a 'slow-burn' reaction rather than by an immediate
loss of self-control.
We accept that the subjective element in the defence of
provocation would not as a matter of law be negatived simply
because of the delayed reaction in such cases, provided that
there was at the time of the killing a 'sudden and temporary
loss of self-control' caused by the alleged provocation.
However, the longer the delay and the stronger the evidence
of deliberation on the part of the defendant, the more likely
it will be that the prosecution will negative provocation."
10. Counsel for the Attorney-General submitted that that passage turns on a construction of the Homicide Act and is inapplicable to the Code. I return to that question in due course.
11. The Code, s160(1) is in similar terms to the Western Australian Criminal Code, s281 and Queensland Criminal Code, s304. The Western Australian section is in the following terms:
"When a person who unlawfully kills another under
circumstances which, but for the provisions of this section,
would constitute wilful murder or murder, does the act which
causes death in the heat of passion caused by sudden
provocation, and before there is time for his passion to cool,
he is guilty of manslaughter only."
12. The Queensland section is in the same terms as the Western Australian section except that it omits any reference to the crime of wilful murder. Provocation is defined in the Western Australian Code, s245 and the Queensland Code, s268, but in terms which are significantly different from the provisions of the Code, s160(2) and which may not apply to homicide so that in such cases the meaning of provocation is to be found in the common law (see R v Sabra Isa (1952) St R Qd 269 and the discussion of that case by Mack J in R v Herlihy (1956) St R Qd 18 at 65-66).
13. In Dunstan v R (1931) WALR 118 the Western Australian Court of Appeal dealt with the Code of that State, s281. In giving the judgment of the Court, McMillan CJ said, at 120:
"But in all cases in order to reduce homicide upon
provocation to manslaughter, it is essential that the
wounding appears to have been inflicted immediately upon the
provocation being given; for if there is a sufficient cooling
time for passion to subside and reason to interpose, and the
person so provoked afterwards kills the other this is
deliberate revenge, and not heat of blood, and accordingly
amounts to murder."
14. That view was expressed, not upon the basis of giving effect to the word "sudden" appearing in s281, but upon the basis that to hold otherwise would not give effect to the requirements of the section that the act be done "in the heat of passion ... and before there is time for (the) passion to cool".
15. In R v Herlihy (supra) consideration was given to inter alia the Queensland Code, s304. Mack J (with whom Mansfield SPJ agreed) concluded (at 64) that the language used in that section was "merely a short form statement of the common law doctrine of provocation". He referred to the Encyclopaedia of the Laws of England, published in 1898, which, in vol10 at 298 under the heading of "Provocation", states:
"It is a defence to the charge of murder that the fatal act
was committed in the heat of passion caused by sudden
provocation and before there was time for the passion to
cool".
16. Some of the early history of the defence of provocation is referred to in Holdsworth The History of English Law, vol8 at 302-3, in the following terms:
"The readiness with which all classes resorted to lethal
weapons to assert their rights, or to avenge any insult real
or fancied, gave abundant opportunity for elaborating the
distinctions between the various kinds of homicide, and, in
particular, the distinction between murder and manslaughter.
Thus it was ruled in 1553 that, if A set on B intending to
kill him, and C suddenly intervened in the combat, and B was
killed, though it was murder in A, it was only manslaughter
in C; and, it would seem from Plowden's comment, that this
ruling settled a point of law which had long been doubtful.
In 1612 it was ruled that if a man, being provoked, in hot
blood beat another with a weapon not likely to cause death,
and it did cause death, he was only guilty of manslaughter;
but it was held in 1666 that the fact that there was
provocation would not reduce the crime from murder to
manslaughter, if the accused had used a weapon likely to
cause death, a decision which was approved by Holt, CJ, in
1698. On the question what would amount to a provocation, it
was ruled in 1666 that mere words would not be an adequate
provocation for homicide; 'but if upon ill words both parties
suddenly fight, and one kill the other, this is but
manslaughter, for it is a combat between two upon sudden
heat.'"
17. A useful discussion of the development of the common law doctrine of provocation appears in the judgment of Windeyer J in Parker v R [1963] HCA 14; (1962-1963) 111 CLR 610 at 650-655. In particular his Honour said, at 652:
"It is not every provocation that will extenuate guilt and
reduce murder to manslaughter. It must, to use the
antiquated language of the eighteenth century, as repeated by
East in his Pleas of the Crown (1803) vol 1, p 238, be: 'such
a provocation as the law presumes might in human frailty heat
the blood to a proportionable degree of resentment, and keep
it boiling to the moment of the fact: so that the party may
rather be considered as having acted under a temporary
suspension of reason than from any deliberate malicious
motive'. Constantly repeated expressions are a 'sudden
provocation', an acting 'on the sudden' and 'in the heat of
passion'. the provocation must cause a 'transport of passion
and loss of self-control'. As a comprehensive explanation,
what Tindal CJ said to the jury in R v Hayward (1833) 6 Car
and P 157 [1835] EngR 229; (172 ER 1188), may be quoted: He told them that
the question for their consideration would be 'whether the
mortal wound was given by the prisoner while smarting under a
provocation so recent and so strong, that the prisoner might
not be considered at the moment the master of his own
understanding; in which case, the law, in compassion to human
infirmity, would hold the offence to amount to manslaughter
only: or whether there had been time for the blood to cool,
and for reason to resume its seat, before the mortal wound
was given; in which case the crime would amount to wilful
murder' (1833) 6 Car and P, at p 159 (172 ER, at p 1189). To
this may be added, as a more modern example, what Devlin J,
as he then was, said in his direction to the jury so warmly
approved by Lord Goddard in R v Duffy (1949) 1 All ER 932.
It began: 'Provocation is some act, or series of acts, done
by the dead man to the accused which would cause in any
reasonable person, and actually causes in the accused, a
sudden and temporary loss of self-control, rendering the
accused so subject to passion as to make him or her for the
moment not master of his mind'."
18. In R v Kirkham (1837) 8 C and P 115[1839] EngR 273; , 173 ER 422, Colridge J directed the jury in the terms similar to those in which the jury had been directed in R v Hayward (supra) (C and P at 117, ER at 423):
"If, therefore, a person being stung and excited inflicts a
fatal blow or wound, provided the provocation be sufficient,
and acting upon him at the time, and recent, he will only be
guilty of manslaughter; and in this the law does not depart
from its original principle, because it then supposes that
the individual was not guilty of malice prepense, but that
what he did was done in a moment of over-powering passion,
which prevented the exercise of reason;".
19. In Kwaku Mensah v R (1946) AC 83 the Privy Council was concerned with the relevant provisions of the Criminal Code of the Gold Coast. In giving the reasons of the Judicial Committee Lord Goddard explained the common law position when he said, at 92-93:
"The law relating to murder and manslaughter in the Gold
Coast is contained in the Criminal Code, but in all material
respects the Code reproduces the common law of England on the
subject. Section 233 provides that intentional homicide
shall be manslaughter only, if, among other matters of
extenuation, it is proved on the accused's behalf that he was
deprived of the power of self-control by such extreme
provocation given by the person killed as is mentioned in s
234. Among the matters which may amount to extreme
provocation is an unlawful assault of such a kind ... as to
be likely to deprive a person being of ordinary character and
in the circumstances in which he was of the power of
self-control. Then s 235 excludes the benefit of provocation
where the accused was not in fact deprived of the power of
self-control, and also where after the provocation such a
time elapsed or such circumstances occurred that a person of
ordinary character might have recovered his self-control.
This puts into statutory form what has for long been the law
in this country."
20. The direction given in R v Hayward (supra) has continued to be referred to with approval in England. In R v Thornton (1992) 1 All ER 306 at 313 Beldam LJ, in giving the judgment of the court, said that ever since R v Duffy (supra) the words "sudden and temporary loss of self-control" have been regarded as appropriate to convey the legal concept expressed in R v Hayward (supra). His Lordship was of the view that that legal concept remained appropriate and unaffected by the provisions of the Homicide Act. That view was affirmed in R v Ahluwalia (supra).
21. The explanation for these cases is to be found in the requirement, long acknowledged by the common law, that the defence of provocation could only avail an accused person when the killing attributed to provocation has been committed whilst the accused remains in the grip of ungovernable fury caused by the provocative conduct and before his passions have cooled. Juries were required to consider any opportunity which the accused person may have had to cool off as a recovery of self-control before the fatal act meant that the defence was not available (Mancini v Director of Public Prosecutions (1942) AC 1 at 9; Holmes v Director of Public Prosecutions (1946) AC 588 at 597). Such an understanding accords with what was said in Dunstan v R (supra). The earlier cases proceed upon the assumption that the loss of self-control will follow immediately upon the provocation having been given so that where the provocation was not recent it could not be said that there had not been time for the passions to cool. That assumption may have been one which was based on what appeared self-evident in the 19th century. It may be that present day knowledge of psychiatry challenges any such assumption. Certainly it was challenged by the evidence of Dr Sale in the present case. The expression "sudden and temporary loss of self-control" is one which encapsulates much of what is provided for by the Code, s160(2). It is a question of fact whether in a particular case only recent provocative conduct is capable of falling within that subsection. In some circumstances conduct which may not be described as recent may fall within it. That is the effect of the passage from R v Ahluwalia (supra) to which I have referred. I do not consider that that passage is to be explained by any particular provisions of the Homicide Act. It applies to s160(2). Nevertheless the question remains whether the availability of the defence is further circumscribed by s160(1).
22. The question as to whether acts in the distant past could be relied upon as in themselves constituting provocation was the subject of some consideration by this Court in Hall v R 85/1968 but I do not consider that case to be determinative of the question now before the Court. At 8 of his judgment, Crisp J said:
"(Counsel for the appellant) sought to refer to evidence of
past events - and some of them long past - not only as
supplying a background or context but as supplying the
content of the wrongful act or insult which the Code
requires. Initially he said that, 'No one incident is relied
on, but the cumulative effect of the whole course of conduct
since September 1966'. Alternative arguments were developed
related to the preceding Tuesday night (suggested as the
critical event) and then to speculations as to the causes for
the wife's appearance at the hotel on the Saturday. (Cf
Holmes v Director of Public Prosecutions, (1946) AC, 588; Da
Costa v R (HC) unreported of 22nd August, 1968). I know of
no authority which would support such extensions of the
central principle of a provocative act or insult which
offered directly to the assailant causes the emotional
explosion on the sudden that the law accepts in mitigation
though it does not forgive."
23. Crisp J was the only member of the Court who directly referred to this question. Crawford J expressed no opinion upon it. Chambers J appears to have considered that there was no act or insult disclosed by the evidence which could constitute "sudden provocation" but appears to have done so by reference to the nature of the relevant conduct rather than when it occurred. At 5 of his judgment he said:
"However, it was submitted that it is necessary to look at
the whole pattern of events and no doubt it is. It was said
that the accused, anxious for the safety and well-being of
his wife and knowing that she had been pestered by the
deceased in his absence, had reached boiling point by the
evening of 30th March. This was so particularly in view of
the fact that his wife was again pregnant and past actions on
his part - the administering of a hiding to the deceased and
a report to the police - had proved unavailing. It was
claimed in these circumstances that a jury should be entitled
to find that the firing at the deceased of a loaded gun was
justified and that the evidence relied upon was capable in
law of constituting provocation.
I am unable to accept this argument. For provocation to
exist, the person who causes death must do so in the heat of
passion caused by sudden provocation. In this case there is
nothing capable of satisfying the test of sudden
provocation."
24. Whilst some of the earlier cases provide some support for the proposition that at common law provocation could only avail an accused if recent, the true explanation for such suggestions is to be found in a perhaps outdated understanding as to how provocation is capable of operating on the mind of the subject. The common law did not require that the loss of the power of self-control occurred suddenly upon the provocative conduct. Section 160(2) essentially restates the common law. Nevertheless s160(1) may operate so as to require something more than that provided for by s160(2).
25. The meaning of the word "sudden" is to be taken as being unforeseen and unexpected (see Sun Alliance and Sun Insurance Group v North West Iron Co Ltd (1974) 2 NSWLR 625 at 631-3) and as used in s160(1) is descriptive of the quality of the particular act or insult said to constitute provocation.
26. A similar conclusion has been reached in Canada. The relevant cases dealt with the Canadian Criminal Code, s215(1)(2) which subsections were almost identical to the Code, s160(1)(2). In R v Daniels (1983) 7 CCC (3d) 542, Laycraft JA, in giving the judgment of the Northwest Territories Court of Appeal, said at 549:
"Suddenness is a necessary element of both the insult and the
reaction to it. That is specified in s 215 by the words
'sudden provocation' and by the requirement that the insult
be acted upon 'on the sudden and before there was time for
his passion to cool'."
27. He then cited with approval what had been said by Rand J in R v Tripodi (1955) 4 DLR 445:
"'Suddenness' must characterize both the insult and the act
of retaliation ... the ... insult must strike upon a mind
unprepared for it ... it must make an unexpected impact that
takes the understanding by surprise and sets the passions
aflame."
28. By giving effect to the Canadian cases, which I follow, the Code, s160(1)(2) may be reformulated as providing that culpable homicide, which would otherwise be murder, may be reduced to manslaughter if the person who causes death does so in the heat of passion caused by a wrongful act or insult -
(a) which makes an unexpected impact in that it takes the
understanding by surprise;
(b) which is of such a nature as to be sufficient to deprive
an ordinary person of the power of self-control;
(c) which in fact deprives the offender of the power of
self-control; and
(d) upon which the offender acts on the sudden before there
has been time for his passion to cool.
29. The question is whether the first of those requirements carries with it a requirement that the loss of the power of self-control follow suddenly upon that unlawful act or insult. In my view it does. As it is only an unlawful act or insult which (inter alia) has an unexpected impact upon the mind of the offender which gives rise to the defence it is implicit that it is that impact which must deprive the offender of self-control. It cannot be said that it is that impact which has had that effect unless the loss of the power of self-control follows suddenly upon the provocative conduct. Where there is a significant interval of time between the provocative conduct and the loss of self-control that loss of self-control is not the result of conduct which has taken the understanding by surprise. It may be the result of the provocative conduct but that conduct will not have the quality of being "sudden". The use of the word "sudden" in s160(1) has the effect of requiring that the loss of the power of self-control occurs immediately or very soon after the unlawful act or conduct. That construction may not conform to the common law position as presently it is understood but it conforms to the dicta appearing in the early cases. Although those dicta may have proceeded upon the basis of an imperfect understanding of the impact which provocative conduct may have on the human mind, the effect of those dicta, as apparently understood in 1898 by the authors of the Encyclopedia of the Laws of England to which I have made earlier reference, may explain why the draftsman of the Code included the requirement of suddenness in s160(1).
30. The answer to the question asked should be in the affirmative.
ATTORNEY-GENERAL'S REFERENCE NO 1 of 1992: RE THE QUEEN
DAMIEN JOHN ROETZ
(1993) 1 Tas R 349
(1990) 171 CLR 312
(1936) 55 CLR 253
(1986) 161 CLR 158
(1981) 1 NSWLR 126
(1977) 138 CLR 601
(1974) 2 NSWLR 625