the offence; and
(c) every person who counsels or procures another
to commit the offence."
20. Section 8 of the Code provides:-
"8.
OFFENCES COMMITTED IN PROSECUTION OF COMMON
PURPOSE
(1) When 2 ... persons
form a common intention to
prosecute an unlawful
purpose in conjunction with one another and in the
prosecution of such purpose an offence is committed
by
one ... of them, the other ... is presumed to have
aided or procured the perpetrator ... of the offence to
commit the
offence unless he proves he did not foresee
the commission of that offence was a possible
consequence of prosecuting that unlawful
purpose.
(2) Two ... persons form a common intention to
prosecute an unlawful purpose in conjunction with one
another when
they agree to engage in or concur in
engaging in any conduct that, if engaged in, would
involve them ... or one of them in
the commission of an
offence or a tort."
21. As noted earlier, it is clear from the evidence that Ron Larry had not
personally
given Jameson Haywood any provocation. I consider that Jameson
Haywood could not have had any reasonable (though mistaken) belief
on the
facts that Ron Larry had been driving the Police vehicle when it struck him,
or had been acting in concert with the constable
at the time. There is no
evidence which fairly raises that issue. Section 12(1) has no application on
the facts; it applies only
to offences, and it is not suggested that the
constable by his manner of driving committed any offence. Section 8 has no
application
on the facts; see the observation at p 13 on "wrongful act".
22. As to Jameson Haywood's assault upon the constable with the bottle,
I
consider that in terms of s.34(1)(d) it is clear beyond doubt that no
"ordinary person" (in the sense referred to at p 18) similarly
circumstanced
to Jameson Haywood at the time would have acted in the same way as he did, or
in a similar way, and the excuse of provocation
is thereby excluded by virtue
of s.34(1)(d) of the Code.
23. For the injury to Jameson Haywood by the Police vehicle to constitute
"provocation" under s.34(1) of the Code, the driving by Constable Pritchard
off the road for 9 metres, in itself or by the manner
in which he drove and in
the circumstances which then obtained, had to constitute "an act that (was)
wrong by the ordinary standards
of the community"; see the definitions of
"provocation" and "wrongful act" at pp 4 and 5. I consider that very clearly
it was not
wrong by the ordinary standards of any community in the Territory.
24. For these reasons, I consider that the excuse of provocation
is negatived
and Jameson Haywood was rightly convicted on both charges he faced; I dismiss
his appeal against those convictions.
(2) Peter Corbett Jabarula, Clarrie Haywood Jambajimba and Lennie Corbett
Jabarula
(a) The appellants' submissions
25. As to the
other 3 appellants, Mr Lindner submitted that his Worship had
erred in ruling that they could not rely on the excuse of provocation
and had
therefore erred in proceeding to convict them. He submitted that his
Worship's conclusion (p 7) that provocation was not
open to these 3 appellants
must have proceeded on the basis that they had not themselves been injured by
the Police vehicle, unlike
Jameson Haywood, and that to rely on the excuse of
provocation, the Code required that they themselves had been provoked. That
is
to say, in terms of the Code, the submission was that the Magistrate had
wrongly proceeded on the basis that the excuse of provocation
under s.34(1)
was only available when the victim "gave him (that is, the accused) that
provocation". The question raised by this
submission is whether indirect
provocation may constitute provocation under the Code.
(b) Indirect provocation
26. Mr Lindner submitted
that the question for determination, in general
terms, was whether the excuse of provocation under Code s.34(1) could be open
to
A for his assault on B, where there had been an act of provocation by B (or
A reasonably believed that there had been an act of provocation
by B) in the
presence of A which had clearly not been directed at A, but directed at C. In
other words, can provocation under the
Code be indirect, or must the
provocative act of the accused's victim be directed at the accused? Mr
Lindner submitted that provocation
may be indirect in this sense; he relied on
R v Kenney [1983] VicRp 106; (1983) 2 VR 470. I turn to examine that case to see whether it is
authority for that proposition; it will be seen that it is not.
27. (His Honour
then discussed Kenney (supra) in detail, and concluded:)
It can be seen that his Honour was dealing in Kenney (supra) with a
situation
where the accused's retaliation was misdirected, and not with a
situation of indirect provocation. Accordingly, the case does not
support the
proposition for which Mr Lindner contends. I note incidentally that at common
law it seems that provocation was restricted
to acts done by the victim; see
the discussion in R v Davies (1975) QB 691 (CA) at pp 699-700.
28. The terms of s.34(1) of the Criminal Code, which define the scope of
provocation by reference to acts of the
accused "committed ... upon the person
... who gave (the accused) that provocation", clearly require both that the
victim did the
provoking act, and that his provocation was directed to the
accused. Thus cases of indirect provocation and misdirected retaliation
are
not included in the scope of the excuse under s.34(1).
29. However, s.34(1) must be read in the light of the excuse of honest
and
reasonable mistaken belief in s.32. I consider that the effect of reading
both provisions together is that an honest and reasonable,
though mistaken,
belief by an accused that his victim had done the act which provoked him (an
act which was in fact done by another),
renders the excuse of provocation
under s.34(1) of the Code open to the accused who, provoked by that act and
under that mistaken
belief, misdirects his retaliation. See in general the
observations of Brennan J. on the effect of mistaken belief, in He Kaw Teh
v
The Queen [1985] HCA 43; (1984) 157 CLR 523 at pp 573-6.
30. The question posed by Mr Lindner in relation to the charge faced by
Clarrie Haywood of assaulting Constable Pritchard
concerns indirect
provocation, not misdirected retaliation; see the discussion of these concepts
by R.S. O'Regan in (1968) Crim LR 319.
31. I do not think that indirect provocation, as discussed, is open as an
excuse under the Code as it stands. That result was possibly
unintended. The
use of the words "in the presence" of an ordinary person in the definition of
"provocation" in s.1 of the Code,
may indicate that substantive provision for
indirect provocation was intended to follow. But there is nothing in that
definition
corresponding to the following provision in s.268 of the Queensland
Code, viz.
"When such an act ... is done ... by one person
... in the presence of another to a person who is under
the immediate care of that other, or to whom the latter
stands in
any such relation (as earlier set out), the
former is said to give the latter provocation ..."
(emphasis mine)
That provision
clearly provides for indirect provocation, caused by
provocative acts to restricted categories of persons in the presence of the
accused, to be treated as provocation under that Code, an approach which
follows the common law, and that of the various States e.g.
s.23(2)(a) of the
Crimes Act (NSW). The absence of any such provision in the Territory Code
means that provocation cannot be indirect,
in the light of the language in
s.34(1).
32. I consider that if I am wrong on this, and Clarrie Haywood could rely on
indirect provocation
(constituted by the injury to Jameson Haywood) to excuse
his assault on the constable, it is clear in terms of s.34(1)(d) that "an
ordinary person similarly circumstanced would (not) have acted in the same or
a similar way" as he did. It is necessary to elaborate
on what is meant by
the "ordinary person" in this connexion.
33. The Territory has developed its own jurisprudence in relation to
the
"ordinary person", who constitutes the objective standard which an accused
must meet, both for loss of self-control in the definition
of "provocation" in
s.1, and for the nature and degree of retaliation in s.34(1)(d). It stems from
the path-breaking judgments of
Kriewaldt J., as his Honour gradually adapted
the common law of provocation, which then applied in the Territory, to the
cultural
patterns of Aboriginal life in the Territory. In 1951 in R v
Patipatu (1951-1976) NTJ 18 at p 20 his Honour summed up to the jury
on
provocation in terms of the reactions of "an ordinary reasonable (Aboriginal)
person in that vicinity and of that description".
In 1953 in R v MacDonald
(1951-1976) NTJ 186 at p 190 the summing up was in terms of "the average
reasonable (Aboriginal) native of Australia". In 1956 in R v Muddarubba
(1951-1976)
NTJ 317 at p 322 in his summing up, his Honour said:-
"In my opinion, in any discussion of
provocation the general principle
of law is to create a
standard which would be observed by the average person
in the community in which the accused person lives.
It
is clear from the cases decided by Courts whose
decisions bind me that in white communities matters
regarded as sufficient
provocation a century ago would
not be regarded as sufficient today. This suggests
that standard is not a fixed and unchanging
standard,
it leaves it open, and I think properly so, to regard
the Pitjinjara (sic) tribe as a separate community for
the
purpose of considering the reaction of the average
man. I tell you that if you think the average member
of the Pitjinjara
tribe (and you must remember these
are 'Myall' blacks) would have retaliated to the words
and actions of the woman by spearing
her, then the act
of spearing is not murder, but manslaughter. If
provocation sufficient for the average reasonable
person
in his community to lose his self control
exists, then the unlawful killing is manslaughter and
not murder. I may be wrong
but until put right by a
higher court I shall continue to tell juries that the
members of the Pitjinjara tribe are to be considered
as
a separate community for the purposes of the rules
relating to provocation. I shall not apply to them the
standard applied
to the white citizens of the Northern
Territory." (emphasis mine)
34. In 1959 in R v Jimmy Balir (1951-1976) NTJ 633 at p 637 as in 1956 in R v
Nelson (1951-1976) NTJ 327 at p 335, his Honour made it clear that while the
law was the same for everyone, the jury could take the view that an ordinary
Aboriginal
man might take longer to cool down after being provoked than would
a non-Aboriginal, and might retaliate in a different way.
35.
The question of the "ordinary person" in the law of provocation with
which his Honour grappled, now comes increasingly to the fore
as presenting a
general problem in Australia's pluralistic society: how to balance
individualized justice and cultural pluralism
with the need to create a broad
sense of community common purpose, and commonly-shared values. While
Aboriginal communities in the
Territory remain as distinct communities
possessing a separate culture and identity and a degree of physical separation
from the
wider community, so the standard of the "ordinary person" will vary
in its application in the Territory.
36. As his Honour said,
the standard is not "fixed and unchanging". The
lifestyle of many of the Aboriginal inhabitants of the Territory has greatly
changed
over the last 30 years. However, there are still many Aboriginal
communities such as Ali Curung, relatively isolated, oriented in
part to
traditional ways of life, and still possessing a distinct Aboriginal cultural
identity.
37. A similar approach to that taken
by Kriewaldt J. has been adopted in
Queensland. In R v Rankin (1966) QWN 10 an Aboriginal on a settlement was
charged with wilful murder. A question arose as to the manner in which the
jury should be directed
on provocation. Campbell J. held that the question for
the jury's consideration was whether the provocation was sufficient to deprive
an ordinary Aboriginal who lived on an Aboriginal settlement, of his power of
self control. I respectfully agree with that approach,
which has, I believe,
been the consistent approach of the judges of this Court. It may be noted
that in Rankin (supra) "a cross-section
of such Aboriginals appeared before
the jury and gave evidence". Presumably, this afforded the jury a better
opportunity to decide
the question whether the provocation met this objective
standard as to loss of self-control. Direct evidence directed to establishing
the standard is not in my view admissible; see Phipson (supra, p 6).
38. Following Kriewaldt J., I consider that an "ordinary person"
for the
purposes of s.34(1)(d) of the Code means, in the circumstances of this case,
an ordinary Aboriginal male person living today
in the environment and culture
of a fairly remote Aboriginal settlement, such as Ali Curung. He is neither
drunk nor affected by
intoxicating liquor, does not possess a particularly bad
temper, is not unusually excitable or pugnacious, and possesses such powers
of
self control as everyone is entitled to expect an ordinary person of that
culture and environment to have. He possesses such
of the appellants' general
cultural characteristics as might affect their reaction to the injury to
Jameson Haywood caused by the
constable's driving, in the atmosphere and
context in which that accident occurred.
39. Adopting that standard for the "ordinary
person" I consider, as noted
earlier, that the 3 appellants' actions went well beyond the reactions of an
ordinary person. I have
no doubt his Worship was quite correct, in ascribing
their actions on this occasion largely to drunkenness.
40. Since Lennie Corbett,
Clarrie Haywood and Peter Corbett are unable to
rely on s.34(1) to excuse their admitted assaults, they were rightly
convicted, and
their appeals against their convictions are dismissed.