Green v The Queen

(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.

(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 [4] , the Court said:

[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". 1. (1990) 171 CLR 312. 2. (1995) 183 CLR 58. 3. Baraghith v The Queen (1991) 66 ALJR 212. 4. (1990) 171 CLR 312 at 326. 5. [1986] 1 SCR 313 at 346-347; 25 CCC (3d) 322 at 347.

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 [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.) 1. Stingel (1990) 171 CLR 312 at 327. 2. Moffa (1977) 138 CLR 601 at 616-617. 3. (1963) 111 CLR 610 at 654.

The majority in Masciantonio [9] (Brennan, Deane, Dawson and Gaudron JJ) said:

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. 1. (1995) 183 CLR 58 at 69.

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.

1. R v Baraghith (1991) 54 A Crim R 240 at 245, per Samuels JA.

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.

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.

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.

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 [12] Windeyer J said:

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. 1. (1936) 55 CLR 499. 2. (1963) 111 CLR 610 at 647. 3. Parker (1963) 111 CLR 610 at 616.

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.

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.

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". 1. See Stingel (1990) 171 CLR 312 at 332-334. 2. (1990) 171 CLR 312 at 331-332.

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 [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.

1. Mraz v The Queen (1955) 93 CLR 493 at 514. 2. (1988) 164 CLR 365. 3. Wilde (1988) 164 CLR 365 at 373.

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.

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.

Section 6(1) of the Criminal Appeal Act 1912 NSW reads: "The court on any appeal under section 5(1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has 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 10 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. 1. In what follows some typographical errors have been corrected.

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 did you mean when you said, "It forced me to open more than I could bear."

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?

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.

(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.

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:

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 backgroun 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 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.

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.

(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".

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.

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:

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] . 1. (1990) 171 CLR 312 at 320. 2. (1995) 183 CLR 58.

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 R v 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. 1. (1991) 54 A Crim R 240.

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.

Thus, the misdirections relating to s 23(2)(a) issues were irrelevant for present purposes.

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.

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 [26] where Brennan, Deane, Dawson and Gaudron JJ said: 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. 1. Stingel (1990) 171 CLR 312 at 326. 2. (1990) 171 CLR 312 at 327. 3. (1995) 183 CLR 58 at 67. 4. [1997] 1 NZLR 16 at 25.

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. 1. New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 11 March 1982, p 2486.

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 R v Baraghith [29] in relation to s 23(2)(b):

[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. 1. (1991) 54 A Crim R 240 at 244.

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. 1. (1990) 171 CLR 312 at 331. 2. Howard's Criminal Law, 5th ed (1990), p 86.

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. 1. (1990) 171 CLR 312 at 332.

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. 1. (1990) 171 CLR 312 at 332.

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. 1. Unreported; Court of Criminal Appeal of NSW; 3 October 1986.

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.

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.

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 fifteen 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 thirty-six 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 twenty-two 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.

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:

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 did you mean when you said, "It forced me to open more than I could bear."

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?

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 sexually 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".

Mr Molomby, counsel for the accused, sought to elicit evidence from one of the accused's sisters that her father had sexually interfered with her and that she had discussed the matter with the accused. Mr Molomby also told the judge that he wished to call another witness to give evidence of a family history of sexual abuse which had created a particular sensitivity in the accused to matters of sexual assault. He submitted that this evidence went to the issues encompassed by both s 23(2)(a) and (b) of the Crimes Act 1900 NSW (the Act).

Section 23 of the Act is entitled "Trial for murder - provocation" and provides:

(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.

(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.

The learned trial judge ruled that "what had occurred to the accused's sister and to other relatives and discussion with the accused had no relevance to the issue of provocation". However, his Honour held that the evidence was admissible to rebut the claim that the killing was premeditated [36] .

1. During the trial the Crown had called a Mr Sirola. He gave evidence which suggested a possible motive for the killing. Mr Sirola said that on the night of the killing the accused had asked him whether he knew anyone who could "knock somebody off". Under cross-examination, Mr Sirola conceded that he was not able to recall the exact words. He also conceded that the accused could have been saying that there was someone he felt like killing. Furthermore, he could not remember the precise context in which the remark had been made. Mr Sirola thought that the remark had been made while both men were watching the television programme "Australia's Most Wanted".

In his summing up, his Honour directed the jury that, whether or not the accused was particularly sensitive to matters of sexual abuse, the family history concerning the father and the sisters was not relevant on the issue of provocation. His Honour said:

I mentioned to you the arguments which have been advanced in relation to provocation. 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.

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 was admitted, to neutralise the premeditation claim that has been advanced through the Sirolas and also in terms of explaining why the accused would have had capacity, a desire or even a wish, to see his father killed.

Ladies and gentlemen of the jury, the issue of provocation is very fairly and squarely raised in this case, because it is the accused's case, as I understand it, that what brought this friendship to an end was the conduct of the victim that night. The accused claims [the deceased] made sexual advances and sexual overtures to him - a person who was heterosexual, who had never been caught in a situation before. He says "It is this conduct that caused me to lose my self-control".

The detrimental effect of this direction to the accused was compounded by one of the ways in which the Crown had put its case. The Crown had submitted to the jury that the accused's evidence suggested that, if he did lose his self-control, the deceased's conduct had not induced that loss of control. On the accused's evidence and admissions, so the Crown contended, the cause of his loss of control was his thoughts concerning his family. The result was that the accused's particular sensitivity to the occurrence of sexual assaults, which he had wished to prove to support his defence of provocation, became a vehicle for destroying that defence.

The accused appealed against the conviction on six grounds. The grounds, reproduced in the judgment of Priestley JA, were as follows:

The verdict of murder, as against manslaughter, was in all the circumstances unsafe and unsatisfactory.

The trial judge erred in law in determining that evidence of the [accused's] special sensitivity to sexual interference, and evidence of the [accused'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 [accused] had in fact been provoked.

The trial judge erred in law in failing to direct the jury that evidence of the [accused's] special sensitivity to sexual interference, and evidence of the [accused'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 [accused] had in fact been provoked.

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 [accused] could have been provoked to the response to which the [accused] 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.

(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 [accused] 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 [accused]".

The trial judge erred in law in determining that evidence of the truth of incidents of sexual interference by the [accused's] father with the [accused's] sisters was not admissible on the issues:

(a) of the [accused'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 [accused's] adverse attitude to his father and his propensity to express his strong dislike of him.

The Crown did not dispute that the second and third grounds of appeal were made out. Nor did the Court of Appeal, which upheld both grounds of appeal.

The Court of Criminal Appeal also upheld the fourth ground of appeal (or "the second day ruling", because it was made on the second day of the trial). The Court agreed with the accused's contention that the trial judge had erred in ruling that s 23(2)(b) required the conduct of the deceased to be such that it could have induced an ordinary person to form an intent to respond to the provocation in the way that the accused had responded. The second day ruling meant that Mr Molomby could address the jury only on the limited basis of the trial judge's ruling. Both Priestley JA (with whose judgment Ireland J agreed in its entirety) and Smart J agreed that the error was not cured by the trial judge correctly directing the jury on this point in his summing up. However, Priestley JA thought that the misdirection was a technicality [37] .

1. Priestley JA said that the trial judge had been "technically wrong".

The fifth ground of appeal was dismissed by Priestley JA on the basis that the direction was correct and that nothing more was required from the trial judge by way of explanation in the circumstances. Smart J found it unnecessary to consider this ground.

Priestley JA rejected the sixth ground of appeal. His Honour held that only evidence going to the accused's state of mind was relevant to the issues under s 23(2)(a). Consequently, evidence concerning what had in fact happened between his father and his sisters was irrelevant. Smart J dissented on this point. His Honour said that such evidence would have provided substance for the accused's stated beliefs and would have reinforced them. The evidence therefore went to the gravity of the provocation. His Honour thought that the exclusion of the evidence was a matter of "significant prejudice to the [accused]".

The success or failure of the first ground of the accused's appeal depended on the effect that the errors found under grounds 2, 3 and 4 had upon the trial.

Notwithstanding the conclusion that grounds 2 and 3 of the appeal (which concerned the issue of provocation under s 23(2)(a)) were made out, Priestley JA held that the trial judge's errors under those two grounds were "irrelevant for present purposes" because the only basis on which the Crown could realistically have succeeded in negating provocation was through s 23(2)(b). His Honour appears to have regarded the errors that were the subject of grounds 2 and 3 as having no bearing on the s 23(2)(b) issues.

Priestley JA held that the only question for the Court to consider in determining whether or not the proviso to s 6 of the Criminal Appeal Act 1912 NSW applied was whether the accused had lost the chance of a different outcome on the s 23(2)(b) issue by reason of the incorrect ruling by the trial judge described in ground 4 (the second day ruling). His Honour held that, on the evidence before the jury and within the range of findings open to them on that evidence, the jury would not have come to a different conclusion about s 23(2)(b). Priestley JA concluded that the basis for the jury's decision was that they were not satisfied beyond reasonable doubt "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". The possibility that the result would have been different had the trial judge not made the incorrect ruling dealt with under ground 4 was not sufficiently real to find that a substantial miscarriage of justice may have occurred. Had the erroneous rule not been given, it would not have made any "material difference" to the way the evidence came out or to the jury's conclusion, nor was counsel for the accused prevented by the ruling from taking any steps on the accused's behalf that led to any substantial miscarriage of justice.

Smart J held that the application of the proviso was inappropriate in the circumstances. His Honour held that there was ample material that was capable of causing the jury not to be satisfied beyond reasonable doubt that the Crown had negatived provocation and therefore the proviso ought not to have been applied.

Given the errors of the trial judge, the only question in the appeal is whether the Court of Criminal Appeal should have applied the "proviso" to s 6(1) of the Criminal Appeal Act to dismiss the appeal on the basis that no substantial miscarriage of justice had occurred.

The court on any appeal under section 5(1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.

In applying the proviso, Priestley JA focused on the terms of s 23(2) of the Act which provides:

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.

This Court's examination of the defence of provocation in Stingel v The Queen [38] and Masciantonio v The Queen [39] provides assistance on the meaning of s 23(2). That examination took place in the context of s 160 of the Criminal Code Tas and the common law as applied in Victoria, respectively. Nevertheless, as the Court said in Stingel [40] , "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".

1. (1990) 171 CLR 312. 2. (1995) 183 CLR 58. 3. (1990) 171 CLR 312 at 320. Quoted with approval in Masciantonio (1995) 183 CLR 58 at 66, per Brennan, Deane, Dawson and Gaudron JJ; at 71, per McHugh J.

In Masciantonio [41] Brennan, Deane, Dawson and Gaudron JJ said:

Homicide, which would otherwise be murder, is reduced to manslaughter if the accused causes death whilst acting under provocation. The provocation must be such that it is capable of causing an ordinary person to lose self-control The provocation must actually cause the accused to lose self-control and the accused must act whilst deprived of self-control before he has had the opportunity to regain his composure.

It follows that the accused must form an intention to kill or to do grievous bodily harm (putting recklessness to one side) before any question of provocation arises. Provocation only operates to reduce what would otherwise be murder to manslaughter. Since the provocation must be such as could cause an ordinary person to lose self-control and act in a manner which would encompass the accused's actions, it must be such as could cause an ordinary person to form an intention to inflict grievous bodily harm or even death [42] .

1. Johnson v The Queen (1976) 136 CLR 619 at 639, per Barwick CJ.

The test involving the hypothetical ordinary person is an objective test which lays down the minimum standard of self-control required by the law. Since it is an objective test, the characteristics of the ordinary person are merely those of a person with ordinary powers of self-control. They are not the characteristics of the accused, although when it is appropriate to do so because of the accused's immaturity, the ordinary person may be taken to be of the accused's age.

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 [form an intent to kill or inflict grievous bodily harm].

1. (1995) 183 CLR 58 at 66-67. 2. Johnson v The Queen (1976) 136 CLR 619 at 639, per Barwick CJ.

The only qualification I would make to this statement is to add considerations of "ethnic or cultural background of the accused" to age and maturity as relevant to any inquiry into the objective standard by which the self-control of an accused is measured [43] .

1. See generally my comments in Masciantonio (1995) 183 CLR 58 at 72-74; cf Yeo, Sex, Ethnicity, Power of Self-Control and Provocation Revisited, Sydney Law Review, vol 18 (1996) 304.

The accused contended that the language of s 23(2)(b), and in particular the phrase "an ordinary person in the position of the accused", has modified the law of provocation in New South Wales. That is, he contended that in New South Wales the jury must consider the accused's subjective experience when measuring the level of self-control required of him or her. If this is so, s 23 significantly departs from the law of provocation as stated in Masciantonio. The validity of this argument depends on whether the words "in the position of the accused" in s 23(2)(b) require an approach different from that expounded in Masciantonio and allow the accused's subjective characteristics to be imputed to the "ordinary person" in considering the loss of self-control issue.

It is clear that the personal attributes of the accused are relevant to the issue posed by s 23(2)(a). Thus, the Crown correctly conceded that the trial judge had erred in ruling that evidence of the accused's special sensitivity to sexual interference, and of his family history which explained that sensitivity, was inadmissible under par (a). What, however, do the words "in the position of the accused" in par (b) mean? Do they mean, as the accused contended, that the "ordinary person" must effectively be given all the characteristics of the accused?

The legislative history of s 23 offers little by way of explanation. However, in the second reading speech of the legislation inserting the provision into the Act, the Attorney-General stated that "[t]he formula of words used does not introduce an entirely subjective test of provocation" [44] . This must be so given the retention of the words "an ordinary person" at the beginning of the phrase.

1. New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 11 March 1982, p 2486. Section 23 was introduced into the Act by the Crimes (Homicide) Amendment Act 1982 NSW.

In my opinion, the phrase "an ordinary person in the position of the accused" means an ordinary person who suffered the provocation which the accused suffered as the result of the conduct of the deceased. The standard against which the loss of self-control is judged is that of a hypothetical ordinary person. That person is unaffected by the accused's idiosyncrasies, personal attributes or past history, save and except that the words "in the position of the accused" require that the hypothetical person be an ordinary person who has been provoked to the same degree of severity and for the same reasons as the accused. In the present case, this translates to a person with the minimum powers of self-control of an ordinary person who is subjected to a sexual advance that is aggravated because of the accused's special sensitivity to a history of violence and sexual assault within his family.

All of the accused's attendant circumstances and sensitivities are relevant in determining the effect of the provocation on "an ordinary person in the position of the accused". Indeed, "[w]ere it otherwise, it would be quite impossible to identify the gravity of the particular provocation" [45] . As the Court said in Stingel [46] :

[N]one 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. (Emphasis added.) 1. Stingel (1990) 171 CLR 312 at 326. 2. (1990) 171 CLR 312 at 326.

The fact that an accused is especially sensitive to the conduct constituting the provocation, or that he or she takes the conduct as being aimed at a particular sensitivity when in fact it is not, will not preclude a finding of provocation, nor prevent it from being attributed to the hypothetical ordinary person. For example, in Luc Thiet Thuan v The Queen [47] , the Privy Council held that the accused's impaired mental condition which made him prone to respond explosively even to minor provocation was a factor which could properly be taken into account when assessing the gravity of the conduct by the deceased. Similarly, the fact that the accused in the present appeal had a special sensitivity to sexual assault because of what he believed had occurred to his sisters was relevant to the issue of provocation under s 23(2)(a) and the extent of his provocation must be attributed to the ordinary person for the purpose of s 23(2)(b).

The Crown attempted to distinguish the present case from Luc Thiet Thuan on the ground that the conduct of the deceased was unrelated to the sensitivity of the accused. The Crown contended that the deceased made a non-violent homosexual advance which was unconnected with the accused's beliefs. Those beliefs related to incidents of heterosexual sexual assault by his father upon his sisters, not homosexual activity. There are two answers to this contention. First, as demonstrated by the passages quoted earlier in the judgment, the advance, although initiated in a non-violent manner, soon became quite rough and aggressive. To the extent that Priestley JA suggests otherwise [48] , his remarks cannot be reconciled with the accused's evidence or record of interview. Thus, in the record of interview, the accused said: "He started grabbing me harder I tried and forced him to the lower side of me. He still tried to grab me." In evidence, the accused said: "[H]e 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."

1. Priestley JA said that "the touching was amorous, not forceful".

Second, the fact that the advance was of a homosexual nature was only one factor in the case. What was more important from the accused's point of view was that a sexual advance, accompanied with some force, was made by a person whom the accused looked up to and trusted. The sexual, rather than homosexual, nature of the assault filtered through the memory of what the accused believed his father had done to his sisters, was the trigger that provoked the accused's violent response. Viewed in this light, the conduct of the deceased was directly related to the accused's sensitivity. Indeed, any unwanted sexual advance is a basis for "justifiable indignation", especially when it is coupled with aggression [49] . Such an unwanted advance may lay the foundation for a successful defence of provocation.

1. Dressler, When Heterosexual Men Kill Homosexual Men: Reflections on Provocation Law, Sexual Advances, and the Reasonable Man Standard, Journal of Criminal Law and Criminology, vol 85 (1995) 726, at p 754 .

The Crown further submitted that, while the trial judge had erred, Priestley JA nevertheless took into account the accused's past history and sensitivity to sexual assault in applying the proviso. However, I do not think that his Honour did so. At all events, he did not do so when considering whether the jury must have inevitably convicted the accused because an "ordinary person in the position of the accused" could not have lost his self-control.

Priestley JA recognised that the trial judge had not related evidence of the discussions concerning sexual assault "to the issue whether the appellant had in fact lost his self-control or to the gravity with which the [accused] regarded the conduct of [the deceased]". His Honour also correctly recognised that "the disadvantage suffered in the end by the [accused] pursuant to the wrong directions raised by grounds 2 and 3 was that the judge in his summing up did not relate the evidence to those issues". By "those issues", his Honour obviously meant loss of self-control by an ordinary person and the gravity of the provocation from the accused's point of view. Yet for some reason that is not readily apparent, his Honour went on to say:

However, I do not see any way, looking at the matter realistically, in which the [accused] could have failed on the issue raised under par (a) of s 23(2), or, putting the point accurately in terms of the onus of proof, how the Crown on the evidence could have negated, beyond reasonable doubt, loss of control by the [accused]. 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 [accused] to have so far lost self-control as to have formed an intent to kill or inflict grievous bodily harm on [the deceased].

Thus, the misdirections relating to s 23(2)(a) issues were irrelevant for present purposes.

But this passage downplays, if it does not overlook, the fact that the ordinary person contemplated by s 23(2)(b) is a person who has been provoked to the extent that the accused has been provoked. In this case, the capacity for self-control under s 23(2)(b) had to be measured by reference to an ordinary person who had been provoked to the extent that the accused had been provoked because of his special sensitivity to occurrences of sexual assault. Yet the trial judge's directions (which were the basis of the successful appeal on grounds 2 and 3) prevented the jury from measuring the capacity for self-control of an ordinary person who had been provoked in the manner and for the reasons that the accused had been provoked. The failure of the trial judge to relate the evidence of sexual assaults within the family to the s 23(2)(a) issues meant that the accused's real case on s 23(2)(b) was never put to the jury. In my view, the misdirections and non-directions were serious. I think that it is impossible to conclude that a reasonable jury must have convicted the accused if the proper directions had been given. But I would go further.

Where the error in the conduct of the trial is fundamental [50] , the question as to whether a reasonable jury would have found the accused guilty does not arise. In such circumstances, the accused has not had a trial according to law and that itself constitutes a relevant miscarriage of justice. In Wilde v The Queen [51] , Brennan, Dawson and Toohey JJ said:

It is one thing to apply the proviso to prevent the administration of the criminal law from being "plunged into outworn technicality" (the phrase of Barwick CJ in Driscoll v The Queen [52] ); it is another to uphold a conviction after a proceeding which is fundamentally flawed, merely because the appeal court is of the opinion that on a proper trial the [accused] would inevitably have been convicted. The proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings. If that has occurred, then it can be said, without considering the effect of the irregularity upon the jury's verdict, that the accused has not had a proper trial and that there has been a substantial miscarriage of justice. Errors of that kind may be so radical or fundamental that by their very nature they exclude the application of the proviso. The majority stressed that there is no mechanical formula or rigid test for determining whether an irregularity is of this nature; each case depends on its own circumstances. 1. Wilde v The Queen (1988) 164 CLR 365 at 372-373; Glennon v The Queen (1994) 179 CLR 1 at 8. 2. (1988) 164 CLR 365 at 373. 3. (1977) 137 CLR 517 at 527.

The errors in question here led to the trial being fundamentally flawed. The accused's real case on provocation was never left to the jury. That being so, it is irrelevant that the majority judges of the Court of Criminal Appeal thought that the defence of provocation would be rejected by a reasonable jury. Moreover, as I have pointed out, the judgment of Priestley JA downplays, if it does not overlook, that under s 23(2)(b), the issue of loss of self-control had to be measured by the response of an ordinary person who had been provoked to the same extent that the accused had been provoked because of his special sensitivity to occurrences of sexual assault. I hope that I do justice to his Honour's reasons for judgment. But it does appear to me that ultimately his Honour treated the ground 2 and 3 errors as affecting only the issues under s 23(2)(a).

To adapt the words of Lord Hewart CJ in a different context, "it is not merely of some importance but is of fundamental importance" [53] that no one should be convicted of a crime except in accordance with the ordinary processes of the law. Consequently, the proviso has no role to play in this appeal. That conclusion is reinforced by the error of the second day ruling, an error which by itself was sufficient to require a new trial.

1. R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 at 259.

The accused contends that Priestley JA erred in holding that the second day ruling by the trial judge was merely a "technical" wrong. The accused contends that it was a miscarriage of justice and not a technical wrong to require Mr Molomby to address the jury on the basis that the defence of provocation could succeed only if an ordinary person would have been provoked to the response to which the accused resorted. In my opinion, this contention is correct.

In Masciantonio [54] the majority of the Court, with whom I agreed on this point, said:

It has been said on a number of occasions that it is an element of provocation that the retaliation should be proportionate to the provocative incident. For example, in Mancini v Director of Public Prosecutions [55] , Viscount Simon LC said: "In short, the mode of resentment must bear a reasonable relationship to the provocation if the offence is to be reduced to manslaughter." However, it is now well established [56] that the question of proportionality is absorbed in the application of the test of the effect of the provocation upon the ordinary person. As Lord Diplock said in Phillips v The Queen [57] Viscount Simon's remark was "an elliptic way of saying that the reaction of the defendant to the provocation must not exceed what would have been the reaction of a reasonable man". And as Barwick CJ pointed out in Johnson v The Queen [58] in considering whether an ordinary person could have reacted in the way in which the accused did, it is the formation of an intent to kill or do grievous bodily harm which is the important consideration rather than the precise form of physical reaction. 1. (1995) 183 CLR 58 at 67. 2. [1942] AC 1 at 9; see also Da Costa v The Queen (1968) 118 CLR 186 at 215. 3. See Johnson v The Queen (1976) 136 CLR 619 at 639, 640, 659. 4. [1969] 2 AC 130 at 137. 5. (1976) 136 CLR 619 at 639.

Notwithstanding a later direction to the contrary during the summing-up, the second day ruling meant that the accused's counsel was prevented from addressing the jury on a central element of the "defence" of provocation. The right of counsel to address the jury on every relevant issue in a civil or criminal trial is "obvious and elementary" [59] . The second day ruling constituted a denial of natural justice in that the accused's counsel was prevented from putting his case to the jury on a critical issue. Such an error can rarely, if ever, be redressed by the trial judge subsequently correctly directing the jury on the law relating to that issue. The impartial direction of a trial judge on a matter of law cannot be equated with the loss of the opportunity for counsel for the accused to put arguments of fact in support of the legal proposition that the judge puts to the jury. A trial where an accused person's counsel is prevented from addressing the jury on a critical issue is almost always, if not invariably, fundamentally flawed.

1. Hobbs v Tinling; Hobbs v Nottingham Journal Ltd [1929] 2 KB 1 at 26.

Moreover, the error was compounded in this case by placing counsel for the accused in an invidious position. Given the extensive and brutal nature of the injuries inflicted by the accused on the deceased, the ruling meant that Mr Molomby had to persuade the jury that the provocative conduct of the deceased was such as to cause an ordinary person in the position of the accused to have so far lost self-control that he could have done what the accused did. It was not an argument that many jurors would find persuasive. And it is not the law that the defence of provocation fails if the jury is satisfied beyond reasonable doubt that an ordinary person could not have acted as the accused did. An accused person is entitled to be acquitted of murder if he or she raises a reasonable doubt as to whether "the 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". Consequently, the second day ruling forced Mr Molomby to address the jury under a conceptual framework that was not the law and which quite likely caused the jury to think that, on the address of the accused's counsel, the defence of provocation was hopeless.

In this case, with due respect to the learned trial judge and the majority judges in the Court of Criminal Appeal, the accused has not had a proper trial according to law. That being so, his conviction for murder cannot stand.

The appeal must be allowed and the conviction of the accused quashed.

The accused contended that a verdict of manslaughter should be entered, especially as the Crown's primary case of premeditated murder was not accepted by the trial judge on sentencing the accused. However, it is a matter for the jury to determine whether the accused's evidence raises a reasonable doubt on the issue of provocation. Even if the Crown fails to negative the accused's claims as to how the killing occurred, a jury might nevertheless be convinced beyond reasonable doubt that an ordinary person could not be induced to lose self-control to the extent that he would have formed an intention to kill or do grievous bodily harm to the deceased. A retrial is inevitable. Accordingly, the order that should be made is: (a) appeal allowed; (b) conviction quashed; and (c) new trial ordered.

At the trial of the appellant for murder, the issue of provocation went to the jury after an application by the Crown for the issue to be taken away from the jury had been rejected. However, the jury did not acquit the appellant of murder and find him guilty of manslaughter. He was convicted of murder. His appeal against conviction was dismissed by the Court of Criminal Appeal of New South Wales (Priestley JA, Ireland J, Smart J dissenting) upon the basis that no substantial miscarriage of justice had actually occurred.

In this Court, the appellant sought to attack the judgment of the Court of Criminal Appeal on the basis of that Court's approach to the construction of s 23 of the Crimes Act 1900 NSW (the Act) and in its application of the proviso under s 6(1) of the Criminal Appeal Act 1912 NSW.

The relevant evidence is detailed in the reasons for judgment of the other members of this Court. It will be necessary to refer to some of it later in these reasons.

The first task is to construe s 23 of the Act. This was substituted by the Crimes (Homicide) Amendment Act 1982 NSW for the previous s 23, which had its origins in s 370 of the Criminal Law Amendment Act 1883 NSW [60] .

1. A matter explained by Windeyer J in Parker v The Queen (1963) 111 CLR 610 at 655-657; see also in the Privy Council, Parker v The Queen (1964) 111 CLR 665 at 668-670.

In construing s 23, as with its predecessor, and upon a consideration of the common law in its pure form, it is to be borne in mind that the law as to provocation "must to some extent be controlled by the evolution of society" [61] . Speaking of the past rulings of judges concerning provocation upon particular facts, Windeyer J said [62] :

Many of them show how different in weight and character are the things that matter in one age from those which matter in another. The result is that the extent of the power of self-control to be exercised by the hypothetical ordinary person is affected by contemporary conditions and attitudes [63] . 1. Holmes v Director of Public Prosecutions [1946] AC 588 at 600. 2. Parker v The Queen (1963) 111 CLR 610 at 654. 3. Moffa v The Queen (1977) 138 CLR 601 at 616-617; Stingel v The Queen (1990) 171 CLR 312 at 327.

The previous s 23 [64] clarified the apparent common law position that only in exceptional circumstances, if at all, would "mere words" count as provocation [65] . This was achieved by the provision in s 23(1) that the jury might consider the provocation offered by the use of grossly insulting language or gestures as in the case of provocation by a blow. The present s 23 produces the effect of the previous s 23(1) by use of the phrase "grossly insulting words or gestures". This may be more generous to the accused than what, since the decision in Moffa v The Queen [66] , appears to be the common law requirement in Australia that the words be of a "violently provocative" or "exceptional" character.

1. This stated: "(1) Where, on the trial of a person for murder, it appears that the act causing death was induced by the use of grossly insulting language, or gestures, on the part of the deceased, the jury may consider the provocation offered, as in the case of provocation by a blow. (2) Where, on any such trial, it appears that the act or omission causing death does not amount to murder, but does amount to manslaughter, the jury may acquit the accused of murder, and find him guilty of manslaughter, and he shall be liable to punishment accordingly: Provided always that in no case shall the crime be reduced from murder to manslaughter, by reason of provocation, unless the jury find: (a) That such provocation was not intentionally caused by any word or act on the part of the accused; (b) That 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, and, (c) That the act causing death was done suddenly, in the heat of passion caused by such provocation, without intent to take life." 2. Holmes v Director of Public Prosecutions [1946] AC 588 at 598-600; Parker v The Queen (1963) 111 CLR 610 at 631, 654; R v Morhall [1996] 1 AC 90 at 96-97. 3. (1977) 138 CLR 601 at 605, 619, 620-621.

(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.

(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. (Emphasis added.)

The reference in s 23(2) to the conduct of the deceased having occurred "at any previous time" appears to include but to go beyond the view expressed by Windeyer J of the previous s 23 and of the common law, that it was unnecessary that the provocative act be a single isolated act and that it might be "an episode in a series of incidents" which, "because of what had gone before, proved to be beyond endurance" [67] .

1. Parker v The Queen (1963) 111 CLR 610 at 662; see also Moffa v The Queen (1977) 138 CLR 601 at 616; Stingel v The Queen (1990) 171 CLR 312 at 325-326; Luc Thiet Thuan v The Queen [1997] AC 131 at 147.

In delivering the reasons of the Judicial Committee in Lee Chun-Chuen v The Queen [68] Lord Devlin said of the common law:

Provocation in law consists mainly of three elements - the act of provocation, the loss of self-control, both actual and reasonable, and the retaliation proportionate to the provocation. The defence cannot require the issue to be left to the jury unless there has been produced a credible narrative of events suggesting the presence of these three elements. They are not detached. Their relationship to each other - particularly in point of time, whether there was time for passion to cool - is of the first importance. The point that their Lordships wish to emphasise is that provocation in law means something more than a provocative incident. That is only one of the constituent elements. 1. [1963] AC 220 at 231-232.

In Johnson v The Queen [69] , Barwick CJ emphasised that the reference in this passage to the "elements" in provocation was not for consideration "disjointly in some temporal order" and that, to the contrary, Lord Devlin had emphasised the interaction of the several matters. Lord Devlin's remarks are useful in considering the structure of s 23. The question of proportionate retaliation now is removed from consideration by s 23(3)(a). The act of provocation and the actual loss of self-control are dealt with in s 23(2)(a), read with s 23(3)(b) and (c). The element of reasonableness falls in a modified form within par (b) of s 23(2) and is also subject to whatever may be the force of the expression therein "in the position of the accused".

1. (1976) 136 CLR 619 at 636-637. See also at 657-658, per Gibbs J.

Section 23(3)(a) denies the operation of any rule of law that provocation is negatived where 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. The common law requirement mentioned by Lord Devlin that there be some reasonable relationship between the act provoked and the provocative act had not been expressed in the previous s 23 but was to be understood as applicable to it [70] . This notion of proportionality was said by Windeyer J to be "soundly related to the ordinary reactions of an ordinary man" [71] . Barwick CJ said it was properly expressed by saying "that the provocation must be such as would lead an ordinary man in the accused's circumstances to so lose his self-control as to do an act of the kind and degree as the act by which the accused killed the deceased" (emphasis added) [72] . Earlier in the same passage the Chief Justice said [73] :

[T]he proportion of the fatal act to the provocation is part of the material on which the jury should consider whether the provocation offered the accused was such as would have caused an ordinary man, placed in all the circumstances in which the accused stood, to have lost his self-control to the point of doing an act of the kind and degree of that by which the accused killed the deceased. That proportion is not, in my opinion, a separate matter to be considered after it has been decided that an ordinary man would have lost self-control in the circumstances by reason of the provocation. (Emphasis added.) 1. Parker v The Queen (1963) 111 CLR 610 at 658. See also Johnson v The Queen (1976) 136 CLR 619 at 642, 654-656, 666. 2. Parker v The Queen (1963) 111 CLR 610 at 658. 3. Johnson v The Queen (1976) 136 CLR 619 at 636. Later in the same judgment, when restating this proposition, Barwick CJ used the phrases "an ordinary man, subjected to the like acts of provocation in all the circumstances in which the accused then stood" (at 639) and "an ordinary man, placed as the accused then was" (at 642). 4. Johnson (1976) 136 CLR 619 at 636.

The result was that under the old s 23 and at common law the matter of proportionality was absorbed in the application of the test as to the effect of the provocation upon the ordinary person [74] . However, under the present s 23, that which at common law was absorbed is now expelled by the provision that, for the purpose of determining whether an act or omission causing death was done or omitted under provocation, within the meaning of s 23(2), there is no rule of law negativing provocation for want of reasonable proportionality (s 23(3)(a)).

1. Masciantonio v The Queen (1995) 183 CLR 58 at 67.

Even without s 23(3)(a), the requirement of proportionality may have been removed by the enactment of s 23(2)(b). The extent of the relevant loss of self-control referred to in that section is the forming of "an intent to kill, or to inflict grievous bodily harm upon, the deceased". Paragraph (b) does not allow consideration of the actual act or omission of the accused causing death and hence there is no occasion for a consideration of the proportion between those acts or omissions and the conduct of the deceased.

However, as will appear, the use by Barwick CJ in Johnson of such phrases as "placed in all the circumstances in which the accused stood" [75] , "in the accused's circumstances" [76] , and "placed as the accused then was" [77] remains of some importance. Whilst employed in the course of an analysis of the true place of any proportionality doctrine, these phrases also were used more generally to explain the operation of the test of the effect of the provocation upon the ordinary person. Johnson predated the enactment of s 23(2)(b), and the statements therein by Barwick CJ point to the provenance of the statutory expression "could have induced an ordinary person in the position of the accused".

1. Johnson v The Queen (1976) 136 CLR 619 at 636. 2. Johnson v The Queen (1976) 136 CLR 619 at 636. 3. Johnson v The Queen (1976) 136 CLR 619 at 642.

It should also be noted that the decision of the House of Lords in Director of Public Prosecutions v Camplin [78] preceded the enactment of the present s 23. The House construed s 3 of the Homicide Act 1957 UK. This provided that the question whether the provocation was enough to make a reasonable man do as he did was to be left to be determined by the jury and stated that "in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man". Lord Morris of Borth-y-Gest described as follows the issue presented in the instant case by that provision [79] :

The jury had to consider whether a young man of about the same age as the accused but placed in the same situation as that which befell the accused could, had he been a reasonable young man, have reacted as did the accused and could have done what the accused did. (Emphasis added.) 1. [1978] AC 705. 2. Camplin [1978] AC 705 at 721-722. Lord Diplock (at 717) referred to the "particular characteristics or circumstances" of the accused, and Lord Simon of Glaisdale (at 727) spoke of "the entire factual situation, which includes the characteristics of the accused".

However, s 23(2)(b) does not refer merely to the particular situation which befell the accused when the provocation was offered or to the circumstances in which the accused then stood. The phrase used is "in the position of the accused". This may indicate those circumstances or that situation and no more, in which case it is in a somewhat narrow temporal and spatial sense that the section stands an ordinary person in the shoes of the accused. On the other hand, "position" may identify a state of affairs which includes the attributes or characteristics of the particular accused. The appellant's submission to this Court went further. It was that his "whole history" was caught up by s 23(2)(b). That submission was too extreme.

In Masciantonio v The Queen, this Court was considering the common law. In the course of the joint judgment [80] , their Honours referred to a passage in the judgment of Barwick CJ in Johnson v The Queen [81] to the effect that, because the provocation must be such as could cause an ordinary person to lose self-control and act in a manner which would encompass the accused's actions, the provocation must be such as could cause an ordinary person to form an intention to inflict grievous bodily harm or even death. Their Honours then continued [82] :

The test involving the hypothetical ordinary person is an objective test which lays down the minimum standard of self-control required by the law. Since it is an objective test, the characteristics of the ordinary person are merely those of a person with ordinary powers of self-control. They are not the characteristics of the accused, although when it is appropriate to do so because of the accused's immaturity, the ordinary person may be taken to be of the accused's age.

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. (Emphasis added.)

1. Masciantonio (1995) 183 CLR 58 at 66. 2. (1976) 136 CLR 619 at 639. 3. Masciantonio (1995) 183 CLR 58 at 66-67.

The relevant characteristics of the accused which are involved in the assessment of the gravity of the conduct said to constitute the provocation have an application to s 23(2)(a). This requires that the act or omission in question be "the result of a loss of self-control on the part of the accused that was induced by any conduct of the deceased towards or affecting the accused". In the present case, the trial judge ruled to the effect that the beliefs or state of mind of the appellant concerning the abuse by his father of the appellant's sisters were not "relevant or admissible on the issue of provocation" without distinguishing between pars (a) and (b) of s 23(2). It was not disputed before the Court of Criminal Appeal or this Court that, in relation to the issue presented by s 23(2)(a), namely whether there was a loss of self-control on the part of the appellant which was induced by any conduct of the deceased, the trial judge fell into error.

In the Court of Criminal Appeal, Priestley JA, with whom Ireland J agreed, correctly stated that there was no possible way that, on the issue raised by s 23(2)(a), the Crown could have negated, beyond reasonable doubt, loss of control by the appellant. Accordingly, the misdirections relating to s 23(2)(a) cannot be said to have deprived the appellant of a chance which was fairly open to him of acquittal [83] .

It is also not seriously disputed that the trial judge fell into error in determining that what is required to satisfy s 23(2)(b) is that an ordinary person in the position of the appellant could have been provoked to the response actually given, rather than in the direct terms of the section to form "an intent to kill, or to inflict grievous bodily harm upon, the deceased". The matter was not remedied by a direction towards the conclusion of the summing-up in terms originally advocated by counsel for the appellant but on which counsel had been precluded from addressing by reason of the earlier ruling.

The appellant also complained, albeit belatedly, in the Court of Criminal Appeal and again in this Court that the trial judge had fallen into further error with respect to his directions as to par (b) of s 23(2). It was submitted that the trial judge's direction that the phrase "an ordinary person in the position of the accused" indicated "the person with the ordinary or common range of temperaments of a person of [the appellant's] age and maturity" was erroneous. For its part, in this Court the Crown submits that, whether or not that be so, (i) matters relating to the appellant's belief or attitude of mind and to his past family circumstances were incapable of raising an issue under par (b) because of irrelevance to the deceased's conduct, with the result that the defence of provocation should have been withdrawn from the jury and (ii) because, in the event, the defence was rejected by the jury, no substantial miscarriage of justice had actually occurred, within the meaning of s 6(1) of the Criminal Appeal Act.

These contentions raise what to my mind are the central issues in the appeal. The first concerns the construction of s 23(2)(b) and, in particular, the phrase "as could have induced an ordinary person in the position of the accused". The second is whether, in the light of the evidence and even if it accepted the account given by the accused, no jury, acting reasonably, could have failed to be satisfied beyond reasonable doubt that the conduct of the deceased was not of such a nature as to be sufficient to deprive any hypothetical, ordinary twenty-two-year-old male in the position of the appellant of the power of self-control to the extent that he would have formed an intent to kill or to inflict grievous bodily harm upon the deceased [84] .

As to the first issue, I have referred earlier in these reasons to various approaches to the construction of the phrase in question. It is here that the reasoning in the passage from Masciantonio has significance further to that which it has for the construction of s 23(2)(a). Its significance, as earlier expressed in Stingel v The Queen [85] , was perceived by Samuels JA in R v Baraghith [86] . The tenor of his Honour's judgment indicates an acceptance that the phrase "in the position of the accused", made relevant attributes or characteristics of the accused, and involved more than consideration of the immediate situation or circumstances in which the accused was placed when presented with the alleged provocation. However, his Honour concluded [87] :

[W]hen 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 matter is summed up in this way [88] :

"In other words, the fact that the particular accused lacks the power of self-control of an ordinary person by reason of some attribute or characteristic which must be taken into account in identifying the content or gravity of the particular wrongful act or insult will not affect the reference point of the objective test, namely, the power of self-control of a hypothetical "ordinary person" ".

1. (1990) 171 CLR 312 at 326-327. 2. (1991) 54 A Crim R 240 at 244. 3. Baraghith (1991) 54 A Crim R 240 at 244. 4. Stingel v The Queen (1990) 171 CLR 312 at 332.

That this is the proper construction of par (b) may be accepted, but the need for some further analysis is suggested by the facts of the present case. The Solicitor-General for New South Wales, who appeared for the respondent, submitted that the beliefs or state of mind of the appellant concerning the sexual abuse by his father of his sisters and his violence towards them and the appellant's mother were incapable of raising an issue under par (b) because the provocative conduct of the deceased was relevantly unrelated to those beliefs or state of mind of the appellant.

It is true that s 23(3)(a) excises from consideration any disproportion between the act or omission causing death and the conduct of the deceased. But to accept the Solicitor-General's proposition is not to reintroduce that concept of proportionality in another guise. The notion of proportionality would have required consideration, on the one side, of such matters as the acceptance by the accused in cross-examination that the deceased was not being rough with him, that the deceased was being gentle with him, and that there was nothing to make him believe that if he had wished to do so he would not have been allowed to leave the house and go home, and, on the other, the kind and degree of the acts by which the deceased was slain by the accused [89] . The accused hit the deceased in the face with full force twenty times (on the accused's evidence), stabbed him ten times (post mortem evidence) and banged the head of the deceased violently against the bedroom wall (post mortem evidence).

The issue is a different one. It concerns the relationship between the provocation offered and the circumstances constituting "the position of the accused" to which the ordinary person is to be assimilated. The Solicitor-General, correctly, does not suggest that the provocation must be directed at the particular sensitivity or weakness of the accused [90] . Rather, the submission is that the provocation must be capable of precipitating or inducing an ordinary person in the position of the accused, that is to say with the beliefs or state of mind of the accused concerning certain events in his family history, to have so far lost self-control as to have formed an intent to kill the deceased, or to inflict grievous bodily harm upon him. That submission should be accepted.

1. cf Luc Thiet Thuan v The Queen [1997] AC 131 at 148, 149; R v Morhall [1996] 1 AC 90 at 97.

Here, the evidence of the appellant indicated that he harboured deep feelings of anger towards his father by reason of his beliefs and attitudes as to the conduct, many years before, of his father towards other family members. The appellant's evidence was that his beliefs as to the sexual abuse of his sisters were based upon what had been told to him by his sisters and his mother, beginning at a time when he was aged eight or nine. The appellant did not suggest he had been sexually abused by his father [91] . Nor was there any suggestion that he had ever witnessed his father's alleged sexual activities with his sisters. He had seen his father belting his sister, Michelle, and was present when his father threw a fridge on top of his mother. He saw his mother on other occasions with black eyes and swollen lips and believed his father was responsible. He had hated his father and wanted to kill him. The father stopped living with the family when the appellant was aged nine or ten. The appellant had seen his father once since, when he was fifteen. At the time of the slaying of the deceased the accused was aged twenty-two.

The evidence of the appellant was that on the night in question "I just lost control" and that this was "[b]ecause those thoughts of me father just going through me mind". The accused said:

[W]hen I tried to push Don [the deceased] 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. Asked what about his father was going through his mind, the accused said: About sexually assaulting me sisters and belting me mother. In his record of interview at Mudgee police station on the night of the killing, the accused said: 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 [on] this and like it

The Solicitor-General submits that the evidence displays a situation no different from the lack of self-control which has been held to be irrelevant as diminishing the power of self-control of a hypothetical ordinary person. As I have indicated, the extent of that self-control is affected by contemporary conditions and attitudes. The Solicitor-General submits that, even if it accepted the evidence of the appellant, no jury, acting reasonably, could have failed to be satisfied beyond reasonable doubt in the sense set out earlier in these reasons when outlining the second issue in the appeal.

The present is not a case in which the conduct of the deceased which provoked the appellant was the last episode in a series of incidents which, because of what had gone before, proved to be beyond endurance. This was not, for example, a case of two parties living together in a domestic relationship attended by repetitious violence or other abusive conduct of one party towards the other.

Nor, it should be pointed out, though without drawing any conclusion as to any significance this would have had, was this a case in which the accused suggested that his response to the overtures of the deceased sprang from a strongly felt aversion to any sexual activity of the nature apparently being urged on him by the deceased. In his record of interview, there is the following question and answer:

Q.148 Have you any knowledge of Don being homosexual?

A. In jokingly or seriously but not known to me. If true or false.

At the end of the record of interview, there is the following exchange:

Q.163 Is there anything further you want to tell me about this matter?

A. 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.

In giving his reasons for rejecting the application that the issue of provocation be taken away from the jury, the trial judge said:

There is evidence upon which the Jury could accept that not only was the accused heterosexual but that he found sexual overtures or sexual advances, whether of a gentle or other nature, from another male as being repugnant or offensive or insulting and that such type of conduct, if indeed it was conduct on the part of the victim on the night in question, affected the accused and brought about a loss of self-control. That was not the burden of the evidence given by the accused. It is true that there was evidence that at the interview at Mudgee police station the accused said "Yes, I killed him and I'll tell you about it. He put it on me and I just snapped". But that falls well short of establishing that the tenor and substance of the accused's evidence was that the matters referred to by the trial judge provided the relevant "position of the accused" into which the ordinary person was to be placed for the purposes of s 23(2)(b).

In Baraghith [92] , Samuels JA pointed out that, whilst the appellant was not born in Australia, no evidence had been offered to suggest that the special circumstance relied upon, certain cultural perceptions of the appellant, were such as to render exceptionally grave the conduct of the deceased said to have offered provocation to him.

Had the evidence of the accused in this case been that he found the conduct of the deceased up to the point where the accused lost his self-control offensive and provocative in an extreme degree by reason of his revulsion to such activity, a different question would have arisen in the application of s 23(2)(b). The answer to it may well have been that suggested by Priestley JA. His Honour said that, whilst it is easy to see that many an ordinary person in the position in which the accused was when the deceased was making his physical advances would have reacted indignantly, throwing off the deceased and perhaps doing so 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 [the deceased]. In approaching the matter in this fashion, Priestley JA was reflecting the reasoning of this Court in Stingel [93] that, subject to a qualification in relation to age, the extent of the power of self-control of a hypothetical ordinary person is unaffected by the personal characteristics or attributes of the particular accused but is affected by contemporary conditions and attitudes. 1. (1990) 171 CLR 312 at 327.

In truth, however, the particular elements said to constitute the position of the accused were his beliefs as to those episodes in his past family history particularly involving the sexual abuse of his sisters but also involving the physical violence inflicted by his father upon his mother and sisters.

The accused's evidence as to the deep impression made upon him by episodes in his family history, so that, in the appellant's words, he had hated his father and wanted to kill him, were insufficiently related to the provocation presented by the conduct of the deceased [94] . This is not a case where, for example, the provocation offered had involved taunts by the deceased aimed at such matters as his failure to deal with his father when, as a fifteen-year-old, he visited his father at Lightning Ridge seeking to "wreck his life" for what he had done to the family but instead receiving a belting from his father. The belief of the accused as to an immediate connection between events in his past and his immediate circumstances which precipitates a violent response on his behalf to the provocation offered cannot of itself be determinative of the issue which arises under s 23(2)(b).

The ultimate question presented by s 23(2)(b) in this case relates to the possible effect of the offered provocation, understood and assessed with respect to its gravity, by reference to the position of the deceased, upon the power of self-control of a truly hypothetical "ordinary person". Such an ordinary person with the personal beliefs and attitudes asserted by the accused with respect to the conduct of his father during his childhood would still be expected to have retained, in the circumstances of this case, the necessary degree of self-control as not to have formed an intent to kill or to inflict grievous bodily harm upon the deceased.

Any other construction of s 23(2)(b) which, when applied to this case produced a different result, would undermine principles of equality before the law and individual responsibility. Such an outcome is not lightly to be attributed to the legislature. A passage in the judgment of Wilson J in R v Hill [95] , which has been cited with approval in this Court [96] , is in point. Her Ladyship, in the course of construing s 215 of the Criminal Code Can [97] said [98] :

The governing principles are those of equality and individual responsibility, so that all persons are held to the same standard notwithstanding their distinctive personality traits and varying capacities to achieve the standard. The success of a provocation defence rests on establishing the accused's act as one which any ordinary person might have done in the circumstances and not upon eliciting the court's compassion for an accused whose act was unjustified but who could not control himself in the way expected of an ordinary person. It is evident that any deviation from this objective standard against which an accused's level of self-control is measured necessarily introduces an element of inequality in the way in which the actions of different persons are evaluated and must therefore be avoided if the underlying principle that all persons are equally responsible for their actions is to be maintained. 1. [1986] 1 SCR 313. 2. Stingel v The Queen (1990) 171 CLR 312 at 324; Masciantonio v The Queen (1995) 183 CLR 58 at 72. 3. RSC 1970, c C-34. This reads: "(1) Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation. (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." 4. R v Hill [1986] 1 SCR 313 at 343-344; cf Howe, More Folk Provoke Their Own Demise, Sydney Law Review, vol 19 (1997) 336, at p 365 .

I conclude that any jury, acting reasonably, could not have failed to be satisfied beyond reasonable doubt that the nature of the conduct of the deceased was insufficient to deprive any hypothetical, ordinary twenty-two-year-old male in the position of the appellant of the power of self-control to the extent that he would have formed an intent to kill or to inflict grievous bodily harm upon the deceased [99] . It follows that, in the event, upon the conviction of the accused for murder no substantial miscarriage of justice actually occurred, within the meaning of s 6(1) of the Criminal Appeal Act.

1. 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.

Once again the Court has before it an appeal concerning the law of provocation and its effect on a person tried for, and convicted of, murder.

In this case, there are two variations from the themes considered in earlier cases, some of them quite recent [100] . The first is factual. The facts alleged to constitute the provocation here were of a sexual advance, homosexual in character, which resulted in the infliction of terrible injuries on the victim, leading to his death. Recent writing, both academic [101] and official [102] suggests, with reference to numerous cases, that provocation is now quite commonly raised in such circumstances, both in Australia and elsewhere.

1. 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. 2. eg, Comstock, Dismantling the Homosexual Panic Defense, Law and Sexuality, vol 2 (1992), p 81; Dressler, When Heterosexual Men Kill Homosexual Men: Reflections on Provocation Law, Sexual Advances, and the Reasonable Man Standard, Journal of Criminal Law and Criminology, vol 85 (1995), p 726; Mison, Homophobia in Manslaughter: The Homosexual Advance as Insufficient Provocation, California Law Review, vol 80 (1992) 133; Moran, The Homosexuality of Law (1996), pp 183-184. 3. Attorney-General's Department (NSW), Review of the Homosexual Advance Defence Discussion Paper (1996).

The second variation is that in this case, unlike some others which have come to this Court, the trial judge left the issue of provocation to the jury. He did so in circumstances in which it is accepted that errors of a technical kind occurred in his rulings and directions. The Court of Criminal Appeal of New South Wales nonetheless applied the proviso [103] . The question thus presented is whether the accused lost a real chance of being acquitted of murder (although found guilty of manslaughter) on the ground of provocation [104] or whether the trial was so irregular that it should be classified as no trial at all. If the trial did sufficiently conform to the law and if no reasonable jury, properly instructed, could have found provocation in the facts adduced, no injustice will have occurred requiring disturbance of the jury's verdict that the accused was guilty of murder.

1. Criminal Appeal Act 1912 NSW, s 6(1). The terms of the sub-section are referred to in the reasons of Toohey J. 2. 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.

As the evidence at the trial showed, Mr Malcolm Green (the appellant) grew up in a family subjected by his father to violence and, in the case of his sisters, sexual abuse. The father left the home when the appellant was nine or ten years of age. The appellant only saw his father once again, and then only briefly, when he was fifteen years old. He gave evidence that, as a result of his father's violent and wrongful conduct towards his mother and sisters, he "wanted to kill him, hated him".

The appellant had no steady job. For a time, he had a de facto relationship with a girlfriend. But she left him about a week before the events giving rise to the charge. The day before those events, the appellant went to the home of Mr and Mrs Sirola. There was a dispute as to exactly what was said during this visit. But both Mr and Mrs Sirola recalled that the appellant said something to the effect that he intended to "knock somebody off" or "put someone down". The Sirolas were reminded of these statements some time later when watching a television programme. They tried to make sense of their recollections. They reported them to the police. They gave evidence about them at the trial.

Early in the morning of 20 May 1993 the appellant killed Mr Don Gillies (the deceased) at the latter's home in Mudgee, New South Wales. The deceased had been a friend of the appellant for between five and six years. He was described by one of the appellant's sisters as someone who was "always there" to help the appellant. No reason was established by the evidence, or suggested by the appellant, for any dislike on his part towards the deceased. On the contrary, they went swimming, diving, drinking and jogging together. They worked together at a local church where the deceased played the organ. On a number of occasions, the deceased had organised work for the appellant. The appellant did not allege that, prior to the killing, the deceased had demonstrated any sexual interest in him.

The appellant had never previously stayed overnight at the deceased's premises. However, on the evening of 19 May 1993, at the invitation of the deceased, the appellant went to the latter's home. They shared a meal, drank wine and later whisky together whilst watching television. According to the appellant, later in the evening, when both of them were much affected by the alcohol they had consumed, the deceased invited him to sleep there overnight. This would save the appellant walking to his sister's home where he was then residing. It was proposed that the appellant should sleep in the deceased's bed. The deceased would sleep in another bedroom, sometimes occupied by his mother, but unoccupied on that evening.

The appellant lay on the deceased's bed. He removed his upper garment but left his underpants and tracksuit pants on. The appellant alleges that, before he had fallen asleep, the deceased entered the bedroom, apparently naked. He lay beside the appellant and started grabbing with both hands towards the appellant's backside and penis. As described in the evidence, the deceased initially did so gently and not aggressively or brutally. The appellant verbally protested to the deceased against these advances. Then, as the deceased started grabbing the appellant more insistently, the latter began hitting the deceased. He hit him repeatedly. The deceased tried to hold the appellant, as the latter interpreted it, "trying to soothe" him. The appellant saw and grabbed a pair of scissors on the floor on the right side of the bed. He stabbed the deceased repeatedly with the scissors. The deceased rolled off the bed. He was left on the floor, face-downward, in a pool of his own blood.

The appellant made a number of perfunctory attempts to remove evidence of his fingerprints from the scene. He then telephoned his brother-in-law requesting him to come and collect him, announcing the gist of what he had done. The brother-in-law arrived at about 1.30 am. Eventually, the appellant instructed that he be taken to the police station. He there began a long process of interrogation by police about which no complaint is made. He volunteered his version of events involving the unwanted sexual advance by the deceased. In the course of the record of interview, he adverted to the alleged sexual assaults by his father upon his sisters which he had not himself seen but which he believed to have occurred. He elaborated the significance of this statement in evidence given before the jury. The passage is set out in the reasons of McHugh J.

At the time of his death, the deceased was aged thirty-six years. He was 1.82 m in height and weighed about 80 kg. The appellant was twenty-two years of age. He was 1.74 m in height with a body weight of about 65 kg.

According to the appellant's evidence, he punched the deceased about thirty-five times and then stabbed him as he rolled off the bed. He admitted to stabbing the deceased up to half a dozen times. However, the post mortem examination showed the ferocity and brutality of the appellant's attack upon the deceased. The relevant extracts are set out in the reasons of Priestley JA in the Court of Criminal Appeal [105] . Ten stab wounds were found. They were described as being in the shape of a butterfly. After describing them, the examiner (Dr J Du Flou) went on:

Broadly speaking there were three large grazes on the left side of the head in the area of the temple which appeared to be 12 mm apart. In addition there was an area of grazing and bruising over the left temple and an area of grazing immediately behind the left ear. There was an area of bruising and grazing of the left cheek and there was a triangular graze on the left cheek which measured 15 by 7 mm There were black eyes and under the eyelid, on the eyelid were a number of very small grazes, measuring only 3 mm in length There was a superficial cut in the skin of the bridge of the nose which I determined had not been caused by a sharp object like a knife or scissors but was, in fact splitting of the skin as a result of a blunt object. The entire nose, in fact was bruised and there was a large area of bruising on the right side of the face Both lips were very swollen as a result of bruising and finally there was an area of bruising and grazing on the back of the head on the left hand side. Now, when I performed further dissection of the head in addition I found that there was fracturing to the bones of the skull involving an area called anterior cranial fossa. Now that area is that part of the skull between the eyes and the brain and it is a layer of skull bone that separates the brain itself from the face. I considered that this fracture was in fact a very severe form of that fracture in that the fracturing had extended right down in to the facial bones as well In addition to those injuries to the head I noted that there was a fracture of the hyoid bone which is a small bone in the Adam's apple and there was a small amount of bruising around this bone I noticed fractures of the second and third ribs on the left and the second rib on the right in front so these were not related to the stab wounds and I noted that in fact there was a large amount of blood loss in that all the organs of the body were very pale relevant to what would usually be expected. On thorough examination of the brain I noted that there was blood on the surface of the brain as well as small areas of bruising within the brain itself but I found no other abnormalities. These findings led Dr Du Flou, to conclude, when taken with evidence of blood spray patterns and other physical indications at the scene of the crime [106] : [W]hat I believe is that the head was brought into contact forcibly with that part of the wall and that the head which at that stage had blood on it on coming into contact with the wall caused blood to spray outwards I would strongly favour that in fact the face was brought into contact with the wall. In cross-examination, Dr Du Flou agreed that the injuries to the back of the deceased's head were consistent with the head being banged violently against a wall. Those to the front of the head fitted readily with punching. 1. R v Green (unreported; Court of Criminal Appeal of NSW; 8 November 1995) at 23, per Priestley JA. 2. R v Green (unreported; Court of Criminal Appeal of NSW; 8 November 1995) at 25, per Priestley JA; cf Howe, More Folk Provoke Their Own Demise, Sydney Law Review, vol 19 (1997) 336, at p 355 .

Immediately after his arrival at the police station, the appellant admitted killing the deceased. He never resiled from that admission. He told the police: "Yeah, I killed him, but he did worse to me." When asked why he had done it, the appellant said: "Because he tried to root me."

The common law originally required that there be reasonable proportionality between the act of provocation and the mode of retaliation. That was one of several controls which it devised to ensure that it was not every loss of self-control which would warrant application of the law of provocation to reduce a homicide from murder to manslaughter. Later, this Court made it plain [107] that, in this country, the requirement of reasonable proportionality was not a separate element of provocation but a matter relevant to be considered in deciding whether the alleged conduct amounted, in law, to provocation. The common law requirement has now been abolished by statute in New South Wales [108] . In that State, the question is not now whether the mode of retaliation was proportionate to the act of provocation. It is not even whether the act of provocation enlivened the intent to inflict the particular injuries actually occasioned to the deceased. As will be shown, by reference to the statute, it is enough, relevantly, that the conduct of the deceased was such as to induce an ordinary person in the position of the accused to have lost self-control so far as to form "an intent to kill, or to inflict grievous bodily harm upon, the deceased" (s 23(2)(b) of the Act).

1. Johnson v The Queen (1976) 136 CLR 619 at 649, 653. 2. s 23(3)(a) of the Crimes Act 1900 NSW (the Act).

The Crown case at trial relied upon the admissions made by the appellant in his record of interview with the police soon after the deceased was killed. It also relied on the evidence of Dr Du Flou, and the testimony of Mr and Mrs Sirola. The Crown did not accept the assertion of a sexual advance by the deceased. Its primary case was that this was a premeditated killing of the deceased in his own bedroom whilst he was sleeping or severely intoxicated. In support of that case, the Crown relied upon the objective facts surrounding the place of the killing, the relationship of the parties, the admissions of the appellant and the evidence of the Sirolas that the deceased had foreshadowed, so soon before the critical events, a homicidal intention, to which he had swiftly given effect. The Crown's secondary case was that, even if the deceased had touched the appellant in the way described, such conduct could not have amounted, in law, to provocation so as to warrant a verdict acquitting the appellant of murder and finding him guilty of manslaughter.

At the trial, the appellant's case involved admission of the killing but with the contention that he was provoked so as to require a finding of guilty only of manslaughter. The appellant also raised self-defence. The primary judge (Abadee J) refused to leave self-defence to the jury. That ruling was challenged before the Court of Criminal Appeal. However, it was later abandoned. It has not troubled this Court.

With immaterial exceptions, the appellant, who gave evidence, adhered to what he had said in his interview with the police. He said that he had no recollection of indicating an intention to kill someone or to arrange for someone to be killed when he was with the Sirolas. He asserted that it was not the deceased but his father whom he had regarded with hatred.

In his case, the appellant called his sisters. His counsel sought to question the first of them about the father's sexual interference with her. He submitted that such evidence would be relevant to the issues arising under the provisions of the Crimes Act 1900 NSW (the Act), s 23(2), governing provocation. Abadee J ruled that evidence as to the facts of the father's interference with the sister was inadmissible. Subsequently, however, evidence on this issue was admitted as relevant to the appellant's feelings and to meet the suggestion of premeditation inherent in the evidence of the Sirolas. Abadee J told the jury that, whether or not the accused was sensitive to sexual abuse, the actual activities of the father with his sisters were not relevant to his reliance upon provocation.

On the second day of the trial, Abadee J also ruled that par (b) of s 23(2) required that the conduct of the deceased had to be shown to have been such as would have induced an ordinary person, who had lost self-control, to have formed an intent to respond to the provocation in the way that had actually occurred. Instead of its being enough to show that the provocation could have induced an ordinary person in the position of the accused to have formed "an intent to kill, or to inflict grievous bodily harm" the ruling, as expressed, suggested that any provocation had to be sufficient to cause such a loss of self-control as to give rise to the intent to kill or to inflict the actual injuries occasioned to the deceased. Subsequently, Abadee J corrected this ruling. Towards the end of his summing up he directed the jury, in terms, in accordance with s 23(2)(b) of the Act. However, the appellant complained that the original error deprived him of the opportunity of having the trial conducted upon the correct basis.

The trial lasted ten days. After the jury had retired, they returned with a request that Abadee J should re-explain the law of provocation, murder and manslaughter. Counsel for the appellant asked Abadee J to clarify what "in the position of the accused" meant in s 23(2)(b) of the Act. The judge directed the jury that this meant "an ordinary person in the context of [the accused's] temperament, age and maturity". He declined to give any further direction. After further deliberation of five hours, the jury returned with a verdict of guilty of murder.

It is idle to speculate whether the jury's verdict was based upon their acceptance of the primary case of the Crown, viz that the appellant's killing of the deceased was an unprovoked and premeditated murder - the very event foreshadowed by the appellant in the conversation with the Sirolas little more than a day before the killing. In cases of this kind, the deceased can give no evidence of his or her version of events. Juries appreciate this. They may sometimes reject the assertions of the person charged as amounting to nothing more than self-serving exculpation when facing a serious predicament and the prospect of prolonged punishment. Alternatively, the jury might have accepted that the deceased did act in a way such as described by the appellant but rejected the contention that this constituted provocation.

Following the jury's verdict Abadee J convicted the appellant of murder. He sentenced him to penal servitude of fifteen years. This sentence was made up of a minimum term of ten years and an additional term of five years. The appellant appealed against his conviction to the Court of Criminal Appeal. Alternatively, he sought leave to appeal against the sentence.

For the purposes of sentencing, Abadee J accepted the substance of the appellant's version of events and gave no weight to the evidence of the Sirolas. A similar approach was taken in the Court of Criminal Appeal. This approach was justified by the absence of any other suggested motive for the killing of the deceased and the apparent frenzy in which the killing occurred.

The Court of Criminal Appeal, by majority [109] , dismissed the appellant's appeal. It declined to interfere in the sentence. Priestley JA, for the majority, accepted that a number of errors had occurred in the trial judge's rulings. Indeed, the Crown did not dispute the validity of the criticisms contained in certain grounds of the appeal [110] . It contested that other grounds had been made out. It accepted that it had failed at the trial to establish that the appellant had, within s 23(2)(a) of the Act, not lost his self-control in fact.

1. Priestley JA, Ireland J concurring, Smart J dissenting. 2. R v Green (unreported; Court of Criminal Appeal of NSW; 8 November 1995); grounds 2, 3 and 4; Priestley JA at 13, 15. These grounds are reproduced in the reasons of Toohey J.

Priestley JA agreed that the evidence concerning the behaviour of the appellant's father towards his sisters (so far as it was known to the appellant) was relevant to the questions arising under s 23(2)(a) of the Act. That is, it was relevant to whether the appellant had in fact lost self-control as a result of an act on the part of the deceased. Priestley JA also concluded that the early ruling of the primary judge concerning the suggested focus of s 23(2)(b) upon the intention of the accused was inaccurate or insufficient in the instant case where there was a relevant distinction between the manifestation of the intention to kill or inflict grievous bodily harm upon the deceased and the multifarious ways in which that intention was carried into effect. Although Abadee J eventually returned to the language of the section and instructed the jury on it, the mistakes were not expressly repaired. However, Priestley JA regarded this error as being a "technical" one [111] :

[B]ecause the error depends upon drawing a distinction between the degrees of horror in the circumstances of different murders, and although I agree such factual distinctions can be made, I find it very difficult to see how useful distinctions can be drawn between formed intentions to kill (criminally) with different degrees of savagery, or (where the same point appears more clearly) to inflict grievous bodily harm with different degrees of grievousness. 1. R v Green (unreported; Court of Criminal Appeal of NSW; 8 November 1995) at 17, per Priestley JA.

Priestley JA rejected the complaint about the failure of the primary judge to respond to the request of the appellant's counsel that he should elaborate what the phrase "in the position of the accused" meant. He considered that the elaboration given was consistent with what this Court had held in Stingel [112] . Similarly, he rejected the criticism of the ruling on the admissibility of the evidence concerning the facts of the father's sexual activities with the appellant's sisters. He upheld the submission that it was what was operating on the appellant's mind that was important and relevant to the question under s 23(2)(a).

These conclusions left Priestley JA to weigh the significance of the errors found to have taken place. That evaluation arose upon the appellant's primary ground asserting that the verdict of murder was unsafe and unsatisfactory, that the trial had miscarried and that a relevant injustice had occurred which had deprived him of the chance of acquittal of murder. The suggestion that there had not been a trial at all, as required by law, was not explored. It does not appear to have been argued in the Court of Criminal Appeal.

Priestley JA concluded that no substantial miscarriage of justice had occurred. He rejected the assertion that the appellant had lost any chance of a different outcome on the s 23(2)(b) question [113] :

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 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 It seems to me that on the evidence the jury had before them and within the range of findings open to them on that evidence they could hardly have come to any different conclusion about par (b). This is not to say that the behaviour of Mr Gillies up to the point where the appellant lost his self-control was not offensive and provocative. 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. Similarly, Priestley JA concluded that the misdirection on the "theoretical difference between the two positions" [114] involved in the focus of the appellant's intention to kill or to inflict grievous bodily harm had not occasioned a miscarriage of justice [115] : I find it very difficult to see how any attempt on counsel's part to draw this distinction, which would keep reminding the jury of the savagery of the beating which the appellant inflicted on Mr Gillies, would be of any advantage to the appellant. I can see the theoretical difference between the two positions. I can see, in theory, how it might be possible for a situation to arise in the course of a trial where counsel could make good use of the distinction in his client's interest, but I cannot think of a concrete possibility in the circumstances of the present case. 1. R v Green (unreported; Court of Criminal Appeal of NSW; 8 November 1995) at 25-26. 2. R v Green (unreported; Court of Criminal Appeal of NSW; 8 November 1995) at 28. 3. R v Green (unreported; Court of Criminal Appeal of NSW; 8 November 1995) at 28.

These opinions led Priestley JA to conclude that the appeal should be dismissed upon the basis that no substantial miscarriage of justice had actually occurred. Ireland J concurred in this conclusion. This produced the order of the Court of Criminal Appeal.

Smart J, in dissent, agreed in the identification of the errors conceded by the Crown or found by the majority. However, in his opinion, the case was not one for the application of the proviso. On the contrary, he was even more forceful in his expression of the alleged provocation than counsel for the appellant was willing to be before this Court [116] :

The deceased's actions, as so narrated, were revolting. It was unreal to suggest that in such a situation the appellant should have got up and walked away. He was being grabbed. The deceased was making very persistent and determined sexual advances. The deceased was fit, heavier, bigger and older than the appellant. 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 coerce the appellant into providing him (the deceased) with sexual gratification. 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. Smart J was of the opinion that the proper course was to allow the appeal, substitute a verdict of manslaughter, reduce the sentence to twelve years penal servitude with a minimum term of eight years and an additional term of four years [117] . 1. R v Green (unreported; Court of Criminal Appeal of NSW; 8 November 1995) at 22. 2. R v Green (unreported; Court of Criminal Appeal of NSW; 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.

From the dismissal of the appeal by the Court of Criminal Appeal, the appellant has, by special leave, appealed to this Court.

The law of provocation grew out of the early common law which treated all homicides as felonious [118] . It was only in the middle of the sixteenth century that, by statute, a distinction between murder and manslaughter was finally settled. Malice aforethought became an essential ingredient for murder. This element gave rise to an exception where a killing followed a sudden falling out, whether by the use of blows or of swords [119] . Malice was deemed to be present "if one kills another without any provocation on the part of him that is slain" [120] . From this, it was a short step to perceive provocation as negativing the malice aforethought, express or implied, deemed necessary for murder [121] .

1. Parker v The Queen (1963) 111 CLR 610 at 650, per Windeyer J. 2. Parker v The Queen (1963) 111 CLR 610 at 651, per Windeyer J. 3. Coke 3 Inst 50, cited in Parker v The Queen (1963) 111 CLR 610 at 651, per Windeyer J. 4. Parker v The Queen (1963) 111 CLR 610 at 651.

One of the chief causes for the early elaboration of the law of provocation, no longer relevant, was the liability of an accused, found guilty of murder, to suffer the penalty of death. By 1883, Sir James Fitzjames Stephen was recording the opinion that [122] :

The whole law of provocation rests upon an avowed fiction - the fiction of implied malice. In the same year, the Criminal Law Amendment Act 1883 NSW enacted, in statutory form, a modified version of the developments of the common law of provocation to that time. That section "with minor changes of punctuation and arrangement" [123] became s 23 of the Crimes Act 1900 NSW. That section was, in turn, repealed in 1982 and replaced by the section in the form applicable to this case. It is set out in the reasons of other members of this Court and I will not repeat it. 1. Stephen, A History of the Criminal Law of England (1883), vol 3, p 87. 2. Johnson v The Queen (1976) 136 CLR 619 at 649, per Gibbs J.

In this Court, the Crown submitted that the application of the proviso in s 6(1) of the Criminal Appeal Act 1912 NSW was in the nature of a discretionary decision by the Court of Criminal Appeal. It urged that this Court should approach disturbance of such a discretionary determination applying the well-established principles which restrain appellate interference in evaluative decisions [124] . The mere fact that the High Court might not, if sitting as a Court of Criminal Appeal, itself have applied the proviso was not sufficient, so it was put, to warrant interference.

1. House v The King (1936) 55 CLR 499 at 504-505; Norbis v Norbis (1986) 161 CLR 513 at 517-519.

The High Court is not a Court of Criminal Appeal. However, in addition to the exposition, application and development of the law, it has a function as the ultimate curial guardian against legal error and injustice. If it reaches the conclusion that a trial has not been held according to law it may uphold the appeal and direct that such a trial be had. If it concludes that an accused has lost a real chance of being acquitted, it may find a miscarriage of justice and grant appropriate relief [125] . Only if, at a trial which sufficiently complies with the law, any miscarriage of justice is insubstantial and such as convinces the Court that it should exercise its discretion to withhold relief, will an established error of law or procedure in the course of the trial justify the application of the proviso.

The approach adopted by this Court on this point is one of vigilance. It is a reflection of the high importance attached to the accurate and just conduct of criminal trials where liberty, fortune and reputation are at stake. I support that approach. But it is also necessary to be obedient to the proviso enacted by Parliament. That proviso is designed to guard against insubstantial errors attracting a completely unmerited or disproportionate consequence. It will be rare today that a criminal trial could be conducted without some insubstantial error or mistake occurring. By the proviso, what is called forth is an assessment or judgment heavily weighed in favour of the right of an accused person to have a trial free from errors which might have any substantial significance. The Court of Criminal Appeal majority felt that the appellant had had such a trial. Once special leave is granted, this Court must reach its own conclusion. However, unless error is shown, it will not disregard or ignore the conclusion reached by a court of criminal appeal. In the nature of things the judges of such courts have much experience in evaluating the evidence of criminal trials and suggestions of miscarriage of justice occurring within them.

The appellant relied, in this Court, upon the following grounds of appeal, namely that the Court of Criminal Appeal had erred:

(2) In proceeding on the basis that the intention of an ordinary person in the position of the accused under s 23(2)(b) of the Act was an intention carried out rather than merely an intention formed.

(3) In holding that the evidence of the truth of what the appellant's father had done to his sisters and mother was not admissible on the question of his belief about what his father had done.

(4) In holding that the trial judge need not have directed the jury as to what is meant by "in the position of the accused."

Upon the return of the appeal, the appellant abandoned ground (3). In my view this was correctly done. To the extent that there was a difference between the majority and Smart J in the Court of Criminal Appeal relevant to this point, I consider that the majority were clearly correct.

So far as ground (2) is concerned, I am of the opinion that it derives from a misreading of the reasons of Priestley JA. His Honour clearly stated, and applied, the distinction between an intention to kill or to inflict grievous bodily harm upon the deceased and an intention to kill the deceased in the particular manner adopted. He accepted that what he called a "technical" mistake had occurred in this regard, in the primary judge's instruction to the jury. He devoted his discussion of the point to a consideration of whether the error, which had persisted through the trial to the closing summing up, was such as to have "led to any substantial miscarriage of justice" [126] . He concluded that it was not. He did so for reasons which I have quoted. They are wholly convincing.

1. R v Green (unreported; Court of Criminal Appeal of NSW; 8 November 1995) at 28.

In the conduct of the trial, it is unthinkable that the appellant would have enjoyed any advantage in laying any more emphasis than was absolutely necessary upon the distinction between the intention to inflict the terrible injuries which in fact caused the death of the deceased and an intention to do no more than to kill or inflict grievous bodily harm upon the deceased. There is no substance in the point which, in any case, was arguably corrected by the primary judge at the close of his summing up.

These conclusions leave two points of substance in grounds (1) and (4). Ground (1), in turn, raises the important question concerning the meaning and operation of s 23(2)(b) of the Act and, in particular, what is meant by the phrase "ordinary person in the position of the accused".

I therefore turn to the remaining grounds. However, first it is useful to place the consideration of this case in the context both of the law of provocation, as expounded by this Court, and of the particular case of provocation involving an alleged sexual advance of a homosexual character.

Legal context: insistence upon the "ordinary person" test

Throughout the long line of cases in this Court in which the law of provocation has been examined, there has been a steady insistence upon the application of an objective standard to the self-control which may be expected of the accused, provoked as he (and all of them have been male) was. This principle was taken from the common law and from the development of the availability of provocation in the English courts. The principle has been criticised as based upon the socially unacceptable assumption that provocation to uncontrolled anger and rage should sometimes be exculpatory [127] . However, in the light of legal history and the statutory provisions applicable to this case, which accept that assumption, this debate can safely be ignored.

1. cf Coss, Lethal Violence by Men, Criminal Law Journal, vol 20 (1996) 305.

In 1803 East's Pleas of the Crown [128] explained that the doctrine of provocation was the product of "the mercy of the law interposes in pity to human frailty". It was thus a doctrine fashioned to relieve from the ultimate punishment those accused who, according to society's changing assessments, were not "morally speaking" murderers and who, if solely so presented, might be acquitted out of the jury's sympathy on the ground of a lack of the relevant malice aforethought.

1. (1803) vol 1, p 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.

However, the common law always set its face against extending its mercy to extreme loss of self-control on the part of an accused person, however unwarranted the provocation described [129] . In certain circumstances to give way to sudden and temporary loss of self-control might be understandable. But a basic measure of self-control, according to what might be expected of a reasonable person or ordinary person, has run through the case law for more than 150 years [130] .

1. Leader-Elliott, Sex, Race and Provocation: In Defence of Stingel, Criminal Law Journal, vol 20 (1996) 72, at p 84 . 2. cf Masciantonio v The Queen (1995) 183 CLR 58 at 71; R v Chhay (1994) 72 A Crim R 1 at 13.

[t]hough the law condescends to human frailty, it will not indulge human ferocity. It considers man to be a rational being, and requires that he should exercise a reasonable control over his passions. The test was formulated in its modern version in 1869, thus [132] : [t]here must exist such an amount of provocation as would be excited by the circumstances in the mind of a reasonable man, and so as to lead the jury to ascribe the act to the influence of that passion. 1. R v Kirkham (1837) 8 Car & P 115 at 119 [173 ER 422 at 424]. 2. R v Welsh (1869) 11 Cox CC 336 at 338.

Because a person hates or fears Jews or Roman Catholics or women, the law would not, for that reason, diminish a murderous attack on a Jew or Roman Catholic or woman. Because an accused is a member of the criminal mafia and is deeply insulted by an affront to a leader of that organisation the law will not ordinarily afford a basis for diminishing the homicide "provoked" by such an affront. The gravity of the affront may help to explain whether the accused was in fact provoked. But provocation in law has conventionally required a second element which is measured against the objective standard of the self-control of the ordinary person [133] .

1. cf Leader-Elliott, Sex, Race and Provocation: In Defence of Stingel, Criminal Law Journal, vol 20 (1996) 72, at p 79 .

The use of the criterion of the ordinary or reasonable person has extended until well into this century [134] . Sometimes it has been influenced by local statutory language [135] . In Australia, the hypothetical "reasonable man" gradually gave way to the "ordinary man" and "ordinary person", partly to avoid irrelevant notions, imported from the law of torts, where the "reasonable person" looms large as a fictitious character who would rarely, if ever, give way to passion [136] .

1. See, eg, Mancini v Director of Public Prosecutions [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. 2. Luc Thiet Thuan v The Queen [1997] AC 131 at 149, 150. 3. Stingel v The Queen (1990) 171 CLR 312 at 328-329; Masciantonio v The Queen (1995) 183 CLR 58 at 79.

The original sources of the law of provocation may be lost in legal history. They were certainly influenced by the highly practical objectives of the trial process and of criminal punishment which I have mentioned. In Parker, Windeyer J points out that many reported rulings on provocation "show how different in weight and character are the things that matter in one age from those which matter in another" [137] . But the assumption of a measure of self-control, tested by what could be expected of the ordinary person, has survived into modern times for reasons of legal policy and notions of fairness and justice [138] . Such a requirement helps to identify the criteria for the reduction of an offence of homicide from what society would not regard as murder but accept as something less [139] .

1. Parker (1963) 111 CLR 610 at 654. 2. Leader-Elliott, Sex, Race and Provocation: In Defence of Stingel, Criminal Law Journal, vol 20 (1996) 72, at p 84 . 3. eg, Stingel v The Queen (1990) 171 CLR 312 at 327.

By insisting upon reference to an objective standard of the ordinary person, the courts have also applied a principle defensive of equality before the law [140] . Without such a criterion, measured by reference to the ordinary person's response, provocation would be available, and murder might be reduced to manslaughter, simply because the accused failed to exhibit the measure of self-control which might reasonably be expected of an ordinary person in his or her circumstances. By the application of the law of provocation, this would result in jury verdicts and outcomes which would seriously offend the community's sense of justice by apparently indulging, or condoning, unrestrained "human ferocity". It would sanction excessive conduct which allowed headstrong, violent people to take the law into their own hands in a way that no civilised society could permit. In effect, it would allow each individual to set the standards of his or her self-control that could be expected in the face of any provocation. It is true that such an approach has had its supporters [141] . The "ordinary person" test, as formulated by this Court, has had its critics both within the Court [142] and in academic writing [143] . But through sixty years of the consideration of the issue by this Court, it has insisted unwaveringly upon the objective standard. Although that standard is now reflected, in the case of New South Wales in s 23(2)(b) of the Act, it is useful - in approaching the meaning to be given to that paragraph - to remember the law that went before. Doing so will show the reason behind the steady insistence on an objective criterion. It will afford a basis to contrast the language in which the applicable statutory test is now formulated.

1. 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, Criminal Law Journal, vol 20 (1996) 72, at p 96 . 2. eg, Moffa v The Queen (1977) 138 CLR 601 at 624-627, per Murphy J; cf The People v MacEoin [1978] IR 27 at 32. 3. eg, Moffa v The Queen (1977) 138 CLR 601 at 625-627, per Murphy J; Masciantonio v The Queen (1995) 183 CLR 58 at 72-74, per McHugh J. 4. Yeo, Power of Self-Control in Provocation and Automatism, Sydney Law Review, vol 14 (1992) 3, at pp 11-13 ; Yeo, Sex, Ethnicity, Power of Self-Control and Provocation Revisited, Sydney Law Review, vol 18 (1996) 304; cf Editorial, Retaining Partial Defences to Murder, Criminal Law Journal, vol 18 (1994) 5, at p 6 .

[T]he reason why the question whether any matter alleged is capable of constituting provocation is made a matter of law lies in the main in the necessity of applying an overriding or controlling standard for the mitigation allowed by law. At common law the test of provocation is not whether the occurrence is sufficient to deprive the particular individual in question of his self-control, having regard to his nature and idiosyncrasies, but whether it would suffice to deprive a reasonable man in his situation of self-control [145] . To the same effect were the opinions expressed in Parker [146] both by the majority [147] and also by the minority [148] whose approach was preferred when an appeal was taken to the Privy Council [149] . 1. (1937) 58 CLR 190 at 217. The case involved the Criminal Code Tas, s 311. 2. R v Lesbini [1914] 3 KB 1116. 3. (1963) 111 CLR 610. The case involved the Crimes Act 1900 NSW, s 23 in its former terms. 4. Taylor and Owen JJ at 641; Menzies J at 643. 5. Dixon CJ at 627-628; Windeyer J at 653. 6. Parker v The Queen (1964) 111 CLR 665 at 679-680.

In Parker, Windeyer J explained the reasons for insistence of the law upon an objective standard for self-control [150] :

The law is concerned with an irresistible impulse as ordinarily understood only when it is a manifestation of the insanity of an insane man. It is concerned with an act done under provocation only when it is the act of a sane man. What is insisted upon, if provocation is to avail as a defence, is that the action of the accused should be a normal reaction of an ordinary man. It may be that, on psychological analysis, the impulsive act of a sane man and an insane impulse are similar, in that in each case there is an act done, without deliberation or volition, in immediate reaction on the presentation of a situation. But law looks at them differently, whether or not it is psychologically proper to do so. I thought that in this case the argument for the applicant failed at times to recognise the distinction. After recounting the history of the law of provocation, his Honour went on [151] : It is important that the whole doctrine is referable to the state of mind of the accused. But there is this qualification - the matter must be considered from the standpoint of the mind of an ordinary man in the circumstances. 1. R v Lesbini (1963) 111 CLR 610 at 653 (emphasis added). 2. R v Lesbini (1963) 111 CLR 610 at 655 (emphasis added).

The Court returned to the question of the ordinary person criterion in Johnson [152] . There the contentious issues concerned the onus and burden of proof and the relevance of proportionality. Murphy J [153] , citing academic criticism of the law's postulates of self-control [154] , foreshadowed a view, which he later developed [155] , that the "ordinary person" test was artificial and should be abolished "and a purely subjective [test] applied" [156] . However, the rest of the Court held resolute. Gibbs J met the criticism voiced in the reasons of Murphy J thus [157] :

It might at first sight be thought incongruous to inquire whether the actions of a man who had lost the power of self-control were out of all reasonable proportion to the incident which had deprived him of that power. However, the law as to provocation obviously embodies a compromise between a concession to human weakness on the one hand and the necessity on the other hand for society to maintain objective standards of behaviour for the protection of human life. To use the words of Kenny, Outlines of Criminal Law [158] , "Human frailty must be measured by the general average standard of ordinary men". An ordinary man in a civilised community would regard it as absurd, and as an affront to his notions of justice, if some trivial provocation, such as mild abuse or a light blow, were regarded as extenuating the use of savage violence. On the other hand, the law does not require that there should be an exact correspondence between the provocation and the force which it provoked. 1. (1976) 136 CLR 619. The case involved the Act, s 23(2) in its former terms. 2. Johnson (1976) 136 CLR 619 at 670-671 (in dissent). 3. eg, Brett, The Physiology of Provocation [1970] Criminal Law Review 634. 4. In Moffa v The Queen (1977) 138 CLR 601 at 626, per Murphy J. 5. Johnson v The Queen (1976) 136 CLR 619 at 671 citing Samuels, Excusable Loss of Self Control in Homicide, Modern Law Review, vol 34 (1971) 163 and Smith and Hogan, Criminal Law, 2nd ed (1969), p 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, Criminal Law Journal, vol 7 (1983) 142, at p 147 . 6. Johnson (1976) 136 CLR 619 at 656; see also Da Costa v The Queen (1968) 118 CLR 186 at 214-215, per Owen J. 7. 19th ed (1996), p 173.

The insistence on an objective standard as the test for self-control was reiterated in Moffa [159] in the face of a direct challenge to it by Murphy J [160] , although in the result Murphy J agreed in the orders favoured by the majority. Barwick CJ insisted on the application of the test of what would cause "an ordinary man to lose his self-control to the point of forming an intent to murder or to do grievous bodily harm" [161] . Gibbs J, in dissent as to the result, was of the same mind, although favouring the substitution of the expression "ordinary person" for "reasonable person" commonly used [162] . Stephen J applied the same test [163] . So did Mason J [164] .

1. (1977) 138 CLR 601. 2. Moffa (1977) 138 CLR 601 at 624-627. 3. Moffa (1977) 138 CLR 601 at 605, see also at 607. 4. Moffa (1977) 138 CLR 601 at 613. 5. Moffa (1977) 138 CLR 601 at 619. 6. Moffa (1977) 138 CLR 601 at 622.

Thus stood the law before this Court revisited the question in Stingel [165] . In its unanimous opinion, the Court affirmed that the personal characteristics of the accused might be taken into account to understand whether the wrongful act or insult did in fact have such a gravity for the accused so as to provoke him. But such subjective considerations were not to govern the power of self-control. This was always to be measured against a standard attributed to the hypothetical ordinary person, unaffected by the personal characteristics or attributes of the particular accused. The Court was prepared to attribute to the ordinary person the age (in the sense of immaturity) of the actual accused. But it left no doubt that it was drawing a distinction between the fact and effect of the provocation and the standard of self-control [166] :

[T]he fact that the particular accused lacks the power of self-control of an ordinary person by reason of some attribute or characteristic which must be taken into account in identifying the content or gravity of the particular wrongful act or insult will not affect the reference point of the objective test, namely, the power of self-control of a hypothetical "ordinary person". 1. (1990) 171 CLR 312. The case involved the Criminal Code Tas, s 160. 2. Stingel (1990) 171 CLR 312 at 332.

The approach in Stingel was reaffirmed in Masciantonio [167] . Despite criticism of the objective standard by McHugh J, who had taken part in the earlier decision, Stingel was applied [168] . As I read McHugh J's reasons, he did not favour (as Murphy J had earlier done) the adoption of a wholly subjective standard. In the particular situation of the changing ethnic composition of the Australian population, McHugh J favoured adding considerations of "ethnic or cultural background of the accused" to age and maturity in order to secure the standard against which self-control would be tested [169] . In the facts of the case, McHugh J concluded that no jury could reasonably have held that the alleged provocation could have caused an ordinary person to lose self-control to the extent of killing the deceased [170] . The majority [171] concluded that the ordinary person test was correct but that the trial judge had erred in his explanation of it to the jury. This had occasioned a mistrial and required retrial. The gravity of the conduct said to constitute the provocation was to be assessed by reference to the relevant characteristics of the accused. But having assessed the gravity of the conduct, it was then necessary to ask whether provocation of such degree of gravity could cause the hypothetical ordinary person to lose self-control, forming the intention to kill or cause grievous bodily harm [172] .

1. (1995) 183 CLR 58. The case involved the law of provocation in Victoria. 2. Masciantonio (1995) 183 CLR 58 at 71. 3. See Masciantonio (1995) 183 CLR 58 at 74; see also the reasons of McHugh J in this case at 34. 4. Masciantonio (1995) 183 CLR 58 at 80. 5. Brennan, Deane, Dawson and Gaudron JJ. 6. Masciantonio v The Queen (1995) 183 CLR 58 at 67; R v Georgatsoulis (1994) 62 SASR 351; noted in Leader-Elliott, Georgatsoulis, Criminal Law Journal, vol 19 (1995) 347.

What is the result of this unbroken line of decisions? The law of provocation in Australia is clearly established as requiring an objective criterion for the measurement of the measure of self-control that the law presumes. This is so by principle having its roots in legal history. History is reinforced by a reflection on the rationale of this provision of the law. In the face of some academic criticism and two dissenting voices within this Court, the objective standard has been consistently applied. Despite the critics, that standard certainly has its supporters [173] . The psychological difficulties inherent in dividing the attribution of subjective personal responses to some aspects of the consideration of provocation, but not to others, has been noted both in this Court [174] and by other Australian courts [175] . The desirability of simplifying this area of the law has been suggested, including by some who favour persistence with an objective standard because of the perceived absurdities and injustices that a purely subjective test would produce [176] . Where there is a code or (as in this case) a general criminal statute which expressly refers to the "ordinary person", meaning must obviously be given to that expression. This Court, in the series of decisions which I have reviewed, has repeatedly called attention to the basic similarity of the principle applicable in the several Australian jurisdictions. Wherever possible, commonality of such bedrock legal doctrine should be upheld, whether the case is governed by the common law, by statute or by a code [177] .

1. eg, Leader-Elliott, Sex, Race and Provocation: In Defence of Stingel, Criminal Law Journal, vol 20 (1996) 72; Berman, Provocation: Difficulties in the Application of the Subjective Test, Criminal Law News, vol 2 (1995) 1, at p 7 . See also Fairall, The Objective Test in Provocation, Criminal Law Journal, vol 7 (1983) 142. 2. McHugh J called it a "curious dichotomy" in Masciantonio v The Queen (1995) 183 CLR 58 at 72. 3. eg, R v Voukelatos [1990] VR 1 at 27. 4. Leader-Elliott, Sex, Race and Provocation: In Defence of Stingel, Criminal Law Journal, vol 20 (1996) 72, at p 96 ; Detmold, Provocation to Murder: Sovereignty and Multiculture, Sydney Law Review, vol 19 (1997) 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 (Criminal Law Journal, vol 14 (1990) 383, at p 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?, Criminal Law Journal, vol 7 (1983) 132, at pp 138-139 . The 1982 legislation in New South Wales itself followed the abolition of the mandatory life sentence for murder: see Criminal Law Journal, vol 7 (1983) 132, at p 140. 5. eg, 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, Criminal Law Journal, vol 10 (1986) 411.

In the end, the answer to the arguments in the present appeal must be found not in such generalities but in the meaning of s 23 of the Act and the application of the proviso to the conceded errors. Nevertheless, the language of the Act should itself be read against the background of the history and purposes of the law of provocation which we do well to remember and which it would be wrong to ignore.

There is a further reason in the present factual context (if it be open in the language of the Act) to adhere to the unbroken exposition of the Australian law of provocation, outlined above. By factual context I refer to the suggestion that a non-violent sexual advance of a homosexual character might, in the eye of the law, be such as to amount to provocation so as to induce an ordinary person in the position of the accused to lose self-control to the extent that he would form an intent to kill or to inflict grievous bodily harm upon the deceased simply because of such an advance.

Without objection, the Solicitor-General for New South Wales placed before this Court a Discussion Paper prepared in that State addressed to the so-called "homosexual advance defence" [178] . From that document it appears that the "defence" has arisen in homicide trials, conducted in the Supreme Court of New South Wales between 1993 and 1995, affecting no fewer than sixteen accused [179] . Of the thirteen cases (involving the sixteen accused), two resulted in acquittals; two (including this case) in jury verdicts of guilty of murder; three of not guilty of murder but guilty of manslaughter; eight had been disposed of by pleas, generally to manslaughter or to lesser offences; and in one case no bill of indictment was found [180] .

1. Attorney-General's Department (NSW), Review of the "Homosexual Advance Defence", Discussion Paper (1996) noted Criminal Law Journal, vol 20 (1996) 305: see Mason and Tomsen, Homophobic Violence (1997) 33, at p 39 . 2. Discussion Paper 8, par 10. 3. Discussion Paper 10.

The authors of the Discussion Paper argue that a non-violent homosexual advance should not, in law, be found to constitute sufficient provocation to incite an ordinary person to lose self-control [10] . They state that, for the law to condone such a result, would be wrong "because it reinforces the notion that fear, revulsion or hostility are valid reactions to homosexual conduct" [11] . Thus a "murderous reaction" towards a non-violent sexual advance, homosexual in character, "should not be regarded as ordinary behaviour but as an exceptional characteristic of the accused" [12] . The "ordinary person" is a fiction. However, that person represents someone exhibiting a measure of self-control in unwanted situations equal to that which society expects of those living within it and to which its system of criminal justice lends it aid [13] . Necessarily, as Gummow J points out, what can be expected is affected by contemporary conditions and attitudes.

1. Discussion Paper 18, pars 56-57. 2. Discussion Paper 18, par 57; see also Mason and Tomsen, Homophobic Violence (1997) 33, at p 39 . 3. Discussion Paper 19, par 57. 4. Mison, Homophobia in Manslaughter: The Homosexual Advance as Insufficient Provocation, California Law Review, vol 80 (1992) 133, at p 136 .

It is for the New South Wales Parliament, government [14] and judiciary [15] , if they so choose, to respond to the proposals in the Discussion Paper. However, in my opinion, it is also relevant for this Court to take the problem evidenced by the paper as a contextual reason, if the statutory language permits it, for resisting any temptation to reduce, or blur, the insistence of the Court's long-standing and consistent authority, about the objective standard that is applied before provocation will be available. Before provocation can be held sufficient to warrant a jury's acquittal of an accused of murder (and a finding instead that the accused is guilty of manslaughter) the accused's response must meet objective standards of self-control imputed to the ordinary person by society. It was that measure of self-control which the Court insisted upon in the case of provocation of a heterosexual character in Stingel [16] . The judge had there refused to leave provocation to the jury. This Court upheld that decision holding, in the circumstances, that [17] :

[N]o jury, acting reasonably, could fail to be satisfied beyond reasonable doubt that the appellant's reaction to the conduct of the deceased fell far below the minimum limits of the range of powers of self-control which must be attributed to any hypothetical ordinary 19-year-old. 1. 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, Current Issues in Criminal Justice, vol 5 (1993) 209. 2. Model Directions for inclusion in the Judge's Bench Book are proposed. See Discussion Paper 22 (pars 68-70). 3. (1990) 171 CLR 312 at 318-320. 4. Stingel (1990) 171 CLR 312 at 336-337.

The Discussion Paper reveals that the homosexual advance "defence" has apparently become common in other States of Australia following reports of jury acquittals in New South Wales [18] . Academic writing shows that the "defence" is by no means uncommon overseas, particularly in the United States of America [19] . This development should be viewed with some concern in the context of widely reported instances of violence (including of a most brutal kind) against homosexual people in Australia [20] which parallel like experiences in similar communities [21] .

1. 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) 42 SASR 266 noted Goode, On Subjectivity and Objectivity in Denial of Criminal Responsibility: Reflections on Reading Radford, Criminal Law Journal, vol 11 (1987) 131. 2. Mison, Homophobia in Manslaughter: The Homosexual Advance as Insufficient Provocation, California Law Review, vol 80 (1992) 133, at pp 134-135, 167-170 ; see also Dressler, When Heterosexual Men Kill Homosexual Men: Reflections on Provocation Law, Sexual Advances, and the Reasonable Man Standard, Journal of Criminal Law and Criminology, vol 85 (1995) 726, at p 735 ; Mason and Tomsen, Homophobic Violence (1997) 33, at pp 37, 133 . 3. 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). 4. Noted Mison, Homophobia in Manslaughter: The Homosexual Advance as Insufficient Provocation, California Law Review, vol 80 (1992) 133, at pp 167-170 .

For the law to accept that a non-violent sexual advance, without more, by a man to a man could induce in an ordinary person such a reduction in self-control as to occasion the formation of an intent to kill, or to inflict grievous bodily harm, would sit ill with contemporary legal, educative, and policing efforts designed to remove such violent responses from society, grounded as they are in irrational hatred and fear [3] .

1. See Mason and Tomsen, Homophobic Violence (1997) 132, at p 133 .

In my view, the "ordinary person" in Australian society today is not so homophobic as to respond to a non-violent sexual advance by a homosexual person as to form an intent to kill or to inflict grievous bodily harm. He or she might, depending on the circumstances, be embarrassed; treat it at first as a bad joke; be hurt; insulted. He or she might react with the strong language of protest; might use as much physical force as was necessary to effect an escape; and where absolutely necessary assault the persistent perpetrator to secure escape [4] . But the notion that the ordinary twenty-two-year-old male (the age of the accused) in Australia today would so lose self-control as to form an intent to kill or grievously injure the deceased because of a non-violent sexual advance by a homosexual person is unconvincing. It should not be accepted by this Court as an objective standard applicable in contemporary Australia.

1. Homosexual advance defences were raised in the 1950s in England. See, eg, R v Cunningham [1959] 1 QB 288 and R v McCarthy [1954] 2 QB 105 at 109-110. Lord Goddard CJ said in McCarthy : "this provocation would no doubt have excused a blow, perhaps more than one." Viscount Simon in Holmes v Director of Public Prosecutions [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 in Pritchard v The Queen (1990) 49 A Crim R 67; Stiles v The Queen (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.

The appellant, however, argued that the language of s 23(2)(b) of the Act, as amended in 1982, introduced a new concept which required a modification of the objective test of the "ordinary person" and obliged consideration to be given to the appellant's subjective experience when measuring the self-control that might be expected of him. Because the test previously stated in the subsection [5] was expressed solely in terms of "an ordinary person", and because this was also the common law, earlier authority of this Court had, so it was submitted, to be adjusted and read as subject to the amendment of the Act.

1. 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".

Whilst it is true that the amendment was a deliberate and conscious one (as reference to the Parliamentary Debates evidences [6] ) and whilst some meaning must be given to the additional words "in the position of the accused", I would reject the suggestion that the amendment was designed to abolish the long-standing objective criterion for self-control in provocation and to introduce into it the kinds of subjective considerations for which the appellant argued. These, it will be remembered, included his particular family history, his understanding of his father's alleged sexual abuse of his sisters and his consequent alleged vulnerability and proneness to over-reaction when the deceased made an unwanted sexual advance to him. If such an interpretation of s 23(2)(b) of the Act were adopted, par (b) might just as well not exist. There are textual, historical and policy reasons for resisting the argument. They include:

Paragraph (b) of s 23(2) continues an express reference to "an ordinary person". Had it been intended to substitute an entirely subjective test, and had it been thought necessary to go beyond the criterion already mentioned in s 23(2)(a), the words "an ordinary person in the position of" would have been omitted. It would have been enough to demonstrate that the conduct of the deceased induced the particular accused to lose self-control to the requisite extent.

The legislature should not be taken to have been unaware of the controversy which had surrounded the objective and subjective criteria for self-control prior to the introduction of the amendment to s 23 in 1982. The academic debate had lasted many years. Murphy J had then recently collected the criticisms of the objective test in Moffa [7] . It would require much clearer language in the amendment of the Act to remove the objective standard of the "ordinary person", particularly when Parliament had taken the trouble expressly to re-enact a reference to the "ordinary person" in the amended paragraph.

When introducing the amendment, the Attorney-General (Mr Walker) in his Second Reading Speech, addressed the changes designed to delete the necessity for suddenness of response and to amend the onus of proof as it had been stated by this Court. He also expressly negatived an intention to "introduce an entirely subjective test of provocation" stating that it would be left to the courts to develop the law through the cases by giving meaning to "what the position of the accused was" [8] . The reason for which the additional words were added, namely, protection of battered wives, suggests that they were designed to refer the position of the accused in his relations with the deceased.

The Attorney-General claimed that the object of the amendment was to bring the law of provocation into line with other Australian jurisdictions [9] . The amendment was enacted against the background of nearly half a century of uniform adherence by this Court and by courts in New South Wales to the objective standard for provocation, repeatedly reaffirmed (in respect of other Australian jurisdictions) by court decisions before and since 1982.

Following the decision of this Court in Stingel [10] , the question quickly arose in the New South Wales Court of Criminal Appeal [11] , as to whether the addition of the words "in the position of the accused" justified or required a departure from the objective standard of self-control adopted in Stingel. That Court [12] rejected that proposition. Samuels JA stated [13] : It is common ground that the personal attributes or characteristics of the appellant were relevant to an assessment of the gravity of the conduct said to constitute provocation. It was not suggested that subjective factors particular to the appellant were relevant to his capacity to control his response to conduct which they rendered exceptionally provocative it seems to me that the decision of the High Court in Stingel has settled the matter, notwithstanding the differences between s 160 of the Criminal Code Tas, which was there under discussion, and s 23 [of the Act].

This Court refused special leave to appeal against the orders in Baraghith. In dismissing the application, Deane J observed, on behalf of the Court [14] : "The majority of the Court of Criminal Appeal correctly interpreted that phrase, ["in the position of the accused"] consistently with the judgment of this Court in Stingel. "

During the course of the argument in the present appeal, counsel for the appellant conceded, correctly in my view, that the words "in the position of the accused" did not qualify the assumption in the Act of the existence of a person with ordinary powers of self-control. He accepted that there was "very little distinction" between the rule established in Stingel and that which he urged on the Court [15] .

Where it is possible, the Court should seek to avoid unnecessary divergences in the basic principles of the criminal law applicable throughout Australia [16] . The objective standard of self-control continues in New South Wales. So far as the words "in the position of the accused" are concerned, they allow, by this Court's authority, consideration to be given to the age and maturity of the accused person. But it is still necessary to ask the question whether an ordinary person could have been induced by the conduct of the deceased to form the intent to kill him or to inflict grievous bodily harm upon him.

1. New South Wales, Legislative Assembly, Parliamentary Debates (Hansard) 11 March 1982 at p 2482 . See criticisms in Weisbrot, Homicide Law Reform in New South Wales, Criminal Law Journal, vol 6 (1982) 248, at pp 256-268 . 2. (1977) 138 CLR 601 at 625-627. 3. New South Wales, Legislative Assembly, Parliamentary Debates (Hansard) 11 March 1982, p 2486. 4. New South Wales, Legislative Assembly, Parliamentary Debates (Hansard) 11 March 1982, p 2486. 5. (1990) 171 CLR 312. 6. R v Baraghith (1991) 54 A Crim R 240; cf R v Mungatopi (1991) 57 A Crim R 341 noted Criminal Law Journal, vol 16 (1992) 429. 7. Samuels JA, Loveday J concurring, Enderby J dissenting. 8. Baraghith (1991) 54 A Crim R 240 at 243-244. 9. Baraghith v The Queen (1991) 66 ALJR 212, per Deane, Toohey and Gaudron JJ. 10. Transcript of Proceedings, 10 December 1996 at 13, 15. 11. See also Zecevic v Director of Public Prosecutions (Vict) (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, Criminal Law Journal, vol 13 (1989) 165. See also R v Jabarula noted Criminal Law Journal, vol 13 (1989) 343.

The killing of an individual is still of profound concern to the community in which it occurs. The law in Australia has not yet surrendered the standard of provocation to the wholly subjective responses of the most vulnerable to hurt, rage or affront. With all respect to those of a different opinion, I align myself with nearly all of the Justices of this Court who have considered provocation in the past. I would sustain the wisdom of the law's insistence that the relevant standard of self-control to be expected of a person subject to an alleged provocation is the objective standard of an ordinary person. In New South Wales, by statute, that is an "ordinary person in the position of the accused". Save in the respect explained in Stingel, the additional words cannot expel the "ordinary person" who survives into the New South Wales Act, as amended. Further support for this view may be found in the fact that, in several decisions of Justices of this Court, long before the amendments to the New South Wales Act, similar phrases appear in describing the hypothetical "ordinary person" or "reasonable man" against whose measure of self-control the accused's intentions must be judged [17] .

1. See, eg, 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.)

The appellant's attempt, on the ground of the amendment, to import into the meaning of s 23(2)(b) of the Act, as relevant to the measure of self-control to be expected of him, all of the subjective features of his past, was misconceived. It was rightly rejected.

This conclusion leaves to be determined the proper response to the misdirections of the primary judge which occurred during the course of the trial. These were conceded for the Crown and the Court of Criminal Appeal applied the proviso to them. Should that approach be disturbed?

Three general principles should be kept in mind in answering this question. The first derives from the established authority of this Court explaining the circumstances in which the proviso may be applied. It may not be applied where the error in the conduct of the trial is so fundamental that there has been no proper trial at all [18] . I would certainly not accept that the "technical" mistakes which occurred in the present trial attract that appellation. In this respect, but in this respect alone, I agree in the reasons of Brennan CJ and disagree in the conclusion reached by McHugh J. There is another exception where the appellate court concludes that the accused, by reason of the departure from the requirements of law, has lost "a chance which was fairly open to him of being acquitted" [19] or "a real chance of acquittal" [20] . That is the criterion invoked by the appellant here. Unless the appellate court can affirm the inevitability of the conviction, the loss of the chance of acquittal must constitute a substantial miscarriage of justice and attract relief.

1. eg, 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. 2. Mraz v The Queen (1955) 93 CLR 493 at 514. 3. R v Storey (1978) 140 CLR 364 at 376.

Secondly, whether there is evidence to constitute each of the elements of provocation in a particular case is a question of law reserved to the court. This reflects the necessity of applying an overriding or controlling standard for the mitigation which the law, exceptionally, allows. For practical reasons, which are well understood, judges will usually err on the side of permitting the question of provocation to be decided by the jury [21] . So the primary judge did here, although the Crown submitted to him, along the lines of Stingel, that provocation could not, in law, be established. The Crown's argument was two-fold. First, it contended that the "loss of self-control on the part of the accused" was not, even on the appellant's own case, induced by any conduct of the deceased but rather by the memories of the alleged conduct of his father (s 23(2)(a)). Secondly, it submitted that the deceased's conduct was not such as could have induced an ordinary person in the position of the accused to lose self-control so as to form the necessary intent to kill or to inflict grievous bodily harm (s 23(2)(b)).

1. 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.

Whilst the first of these arguments was correctly rejected, the second, in my view, was unanswerable. I do not believe that the fact that the judge left provocation to the jury, and made some rather minor "technical" mistakes in doing so, places the Crown at any disadvantage in later invoking the proviso. If the conviction of murder was inevitable (because the standard of self-control expected by the law of an ordinary person in the position of the accused had not been met) the consequence is still the same. No substantial miscarriage of justice has actually occurred. The proviso properly applies.

Thirdly, a review of the cases in this Court shows how minds can differ upon whether or not there was evidence, fit to go to a jury, on provocation. Thus, Dixon CJ and Windeyer J (in dissent) thought there was in Parker [22] . The Privy Council agreed with them [23] . Gibbs J thought that provocation should not have been left to the jury in Moffa; but the majority disagreed. In Masciantonio [24] , McHugh J concluded that no jury could reasonably hold that provocation was established [25] ; but the majority held that the trial judge had wrongly withdrawn the issue of provocation from the jury's consideration [26] . Such differences of opinion reflect nothing more than different conclusions about what a reasonable jury could decide as to whether the appellant was acting under provocation "in the legal sense" [27] . Similar differences of opinion have now found their way into the several reasons offered in this case.

1. (1963) 111 CLR 610 at 628, per Dixon CJ; at 660, per Windeyer J. 2. (1964) 111 CLR 665 at 680. 3. (1995) 183 CLR 58. 4. Masciantonio (1995) 183 CLR 58 at 80. 5. Masciantonio (1995) 183 CLR 58 at 70. 6. Masciantonio (1995) 183 CLR 58 at 70.

For my own part, I find entirely convincing the reasons given by Priestley JA, for the majority, in the Court of Criminal Appeal in explaining why, in this case, the conviction of murder was inevitable.

The accused was faced with, what for him in his situation, may be accepted to have been a provocation. It may be allowed that it was provocation of a sexual kind affecting deep feelings and affronting him. It intruded into his privacy in a way most unwelcome to him. It may even have suggested to him assumptions about his own sexuality which he found confronting or offensive. But he was a twenty-two-year-old adult male living in contemporary Australia. He was at all times wearing at least his tracksuit pants and underwear. At no time were these garments removed or displaced. He was awake. He was aware of what the deceased was doing. He was also aware that the deceased was highly intoxicated. He was younger. He was physically fit. He was very soon able to achieve physical superiority over the deceased. His great physical power is indicated by the course which his violence took. He had relatives close at hand. He knew that they would answer a telephone call and come at once to collect him. His sister's home was within short walking distance. He could not explain in his evidence why he did not simply say "I am going". He agreed that there was nothing at all to prevent him from leaving. Following the killing of the deceased he was readily able to summon a motor vehicle and coolly to direct that he be taken to the police station there to assert that the deceased had done "worse" to him than he had done to the deceased.

No jury acting reasonably could fail to be satisfied beyond reasonable doubt of the relevant matters. These were that the conduct of the deceased, however unwanted and offensive to the appellant, was not of such a nature as to be sufficient, objectively, to deprive a hypothetical ordinary twenty-two-year-old Australian male in the position of the appellant of the power of self-control imputed to him by law to the extent of inducing him to form an intent to kill or to inflict grievous bodily harm on the deceased. Adapting what was said unanimously by this Court in Stingel, no jury, acting reasonably, could fail to be satisfied beyond reasonable doubt that the appellant's reaction to the conduct of the deceased fell far below the minimum limits of the range of powers of self-control which must be attributed to the hypothetical ordinary twenty-two-year-old Australian male in the position of the appellant [28] .

1. Stingel v The Queen (1990) 171 CLR 312 at 336-337.

That standard of self-control remains, in this country, objective. Both Mr Stingel and the appellant stated that they were provoked more than they could bear by a confronting sexual challenge. No lesser standard of self-control is demanded by our society in the case of the appellant than of Mr Stingel, simply because sexual conduct of the deceased was homosexual in character. To condone a lesser standard is to accept an inequality before the law which this Court has previously, repeatedly and rightly rejected. The ultimate foundation of adherence to the objective test was explained in Stingel [29] , in the terms of Wilson J's reasons, in the Supreme Court of Canada, in R v Hill [30] :

The objective standard may be said to exist in order to ensure that in the evaluation of the provocation defence there is no fluctuating standard of self-control against which accuseds are measured. The governing principles are those of equality and individual responsibility, so that all persons are held to the same standard notwithstanding their distinctive personality traits and varying capacities to achieve the standard. 1. (1990) 171 CLR 312 at 324. 2. [1986] 1 SCR 313 at 343.

If every woman who was the subject of a "gentle", "non-aggressive" although persistent sexual advance, in a comparable situation to that described in the evidence in this case could respond with brutal violence rising to an intention to kill or inflict grievous bodily harm on the male importuning her, and then claim provocation after a homicide, the law of provocation would be sorely tested and undesirably extended. A neutral and equal response to the meaning of the section requires the application of the same objective standard to the measure of self-control which the law assumes, and enforces, in an unwanted sexual approach by a man to a man. Such an approach may be "revolting" to some [31] . Any unwanted sexual advance, heterosexual or homosexual, can be offensive. It may intrude on sexual integrity in an objectionable way. But this Court should not send the message that, in Australia today, such conduct is objectively capable of being found by a jury to be sufficient to provoke the intent to kill or inflict grievous bodily harm. Such a message unacceptably condones serious violence by people who take the law into their own hands. Even allowing for the appellant's alleged memories of his father's sexual conduct many years earlier directed to his sisters, there is no way that this could have induced an ordinary person in his position to have so far lost self-control as to have formed the intention to kill or inflict grievous bodily harm on the deceased.

1. cf Howe, More Folk Provoke Their Own Demise, Sydney Law Review, vol 19 (1997) 336, at p 355 .

Assuming that it was appropriate to leave provocation to the jury in his case (a proposition which I doubt), the jury's verdict in this case was not only proper. It was inevitable. There was therefore no substantial miscarriage of justice. The proviso was therefore correctly applied.