Johnson v The Queen

This Court granted an application for special leave to appeal on 27th November 1975, as it clearly raised matters of considerable general importance in the administration of the criminal law. The appeal to this Court is based on the ground of misdirection as to the law in relation to provocation.

The evidence before the jury consisted of medical evidence describing the injuries to the deceased and offering an opinion as to the cause of death, photographic evidence of the body of the deceased, a note in the handwriting of Phillip, statements of the accused to police officers, including signed records of interview, evidence of another brother and of the appellants' mother as to conduct of the deceased over a period of years prior to the date of his death, and the evidence of each of the appellants given on oath.

The case put forward by the Crown was that the appellants killed their father in pursuance of a common design to kill, or to inflict grievous bodily harm upon him. Having regard to a view I have formed as to the propriety of the summing up, it is necessary that I indicate the essential features of the evidence and of the summing up. I will state what the evidence would support, not attempting to make any findings.

The deceased's household at relevant times consisted of himself, his wife and the two appellants. The eldest son and a daughter older than the appellants had married and left home. The deceased had for a time conducted a newsagency but, on disposing of that business, he became employed, and at the time of his death was still employed, by the Rockdale Council as a rate clerk. He was forty-six years of age and weighed fourteen stone. He had an airplane pilot's licence and seemed to use flying as a recreation. He was evidently a heavy drinker and prone to be violent at least when in liquor. He had treated his wife over a considerable period of time to frequent and serious assaults: he had been violent in his handling of all his children through their childhood and teenage. He was dominant in his household and seemingly brooked no challenge to his authority as its head. As a result, each of the children in turn, Paul and Susan doing so whilst still unmarried, left the household at some time and for substantial periods. Phillip, some four and a half months before the death of the deceased, had returned to the home after an absence of some four months. The deceased's wife, forty-three years of age, was an epileptic and an asthmatic: in the week preceding her husband's death, she had entered Sydney Hospital for some tests, presumably connected with these disabilities.

Early on the morning of 5th February, the deceased had accused the appellants of being "hooligans" and the cause of their mother's illness: he had said that he intended to throw them out of the house; it may be that he exhibited some violence towards them on this occasion.

Later that same morning, the deceased told the appellants that they had to leave the house. He said that he intended to throw all their stuff out on the street. There was an argument, apparently centering round the cause of the mother's illness, and about the payment of money by the appellants for board and for the provision of food, during her absence from the house. When told to leave the house, each of the appellants said that they had nowhere to go: the deceased repeated that he intended to throw all their stuff out on the street. The appellants, or one of them, at this time threatened violence to the deceased. He rang the local police station, as a result of which police officers came to the house about 8.30 a.m. The deceased informed the police officers that the appellants had used physical violence on him and that he wanted them put off the premises. The police officers informed the deceased that they had no power to do so and that to effect his purpose he would have to obtain an eviction notice or warrant from a magistrate or "do something like that".

I might interpolate that the appellants had taken some of their clothes to a neighbour's house on the morning of 5th February but, because of ill-health in that household, they did not feel able to seek to reside at the neighbour's house even temporarily.

Peter went to his work on the 5th February but Phillip stayed at home "brooding". At evening, both went to see their mother in hospital. The deceased was already there but did not speak to either appellant; though not speaking to him, the appellants remarks in his presence were designed to "needle" him. The eldest brother, Paul, and his wife also called at the hospital for at least part of the time the appellants were there. In the morning of that day the deceased had taken from the appellants all the money they had, presumably as part of the altercation about payment for food. Paul lent them money with which to get home to Smithfield. Having left their mother, with whom they seem to have had a good rapport, they went to a bar in Menzies Hotel at Wynyard Station drinking beer and also buying some cans of beer. They travelled home together, taking the train to Fairfield and hitch-hiking thence to Smithfield. They drank the cans of beer during the train journey. It was about or just after midnight when they arrived home. The deceased had taken from Peter his key to the house but Phillip had retained his. With this key they entered the house. The deceased was already there and in bed. During that day he had laid a complaint against Peter before a chamber magistrate seeking his exclusion from the house and had obtained a summons in that connexion.

The account given in evidence by the appellants would support the following view of what then occurred.

When the appellants entered the house, they went down a hallway, passed the bedroom occupied by the deceased and then each went into his own bedroom, both of which opened off the hall. Each began to undress for bed. The deceased came out of his room, saying that he had "an eviction notice for you", meaning presumably Peter, and that he wanted them both out of the house "right now".

Peter said to the deceased: "It's too late now. I've got nowhere to go at 12 o'clock at night", but the deceased said they had to go. Peter asked could they stay till morning whereupon the deceased shrugged his shoulders and walked back towards his bedroom. Peter, thinking he could stay, then bent down unlacing his shoes preparatory to undressing for bed. The deceased returned into the bedroom, punched Peter on the nose, which was subsequently found to have a compound fracture, knocking his glasses from his face in the process. He hit Peter on the back of the neck so hard that he fell down. The deceased then grabbed him by the throat so that he could not breathe, attempted to kick him and saying all the while that he would kill him. Peter's nose bled freely. He claimed to be fearful for his safety. Peter suffered from asthma; whilst the deceased was holding him, his face was taking on a deep red purple colour. Peter kicked and punched the deceased during this assault upon him.

Phillip, hearing this commotion, came, as he said, to the rescue of his brother whom he thought would be killed. He saw the deceased punching and strangling Peter who was on the floor. He screamed out to the deceased to leave Peter alone but the deceased did not seem to realize he, Phillip, was there and took no notice of Phillip's words. Phillip then kicked the deceased in the face; the deceased went down but got straight up. He did not seem much affected, though a bit dazed. The deceased screamed and kept screaming out that he was going to kill him, Phillip, too. Phillip, from the look on his father's face, believed that the deceased was going to "get" him. He had never seen his father in as bad a condition before. The deceased apparently turned to face Phillip, Peter sagging back on the floor "pretty dazed". Thereafter, the deceased and Phillip fought with feet and hands in the hallway, the deceased shouting that he would kill Phillip. Phillip obtained knives from the kitchen and the deceased obtained a knife, presumably one dropped by Phillip. Peter attempted to stop the fighting, though himself hitting the deceased; the deceased used a knife, scratching Peter's right upper arm. Phillip struck Peter knocking him out. Whilst Peter was unconscious Phillip and the deceased exchanged blows, including stabs with knives. Phillip reached a point where he claimed "something seemed to snap"; he "chucked a big mental" and punched and kicked the deceased in the head whilst he was down on the floor and jumped upon the deceased's head and body many times; he also made a number of cuts upon him with a knife. Peter recovered consciousness during the fighting but claims neither to have witnessed nor participated in the jumping upon the deceased. He said that Phillip was "raging and kept stabbing" the deceased, "he was pretty wild". Peter had not seen him lose his temper to the same extent.

Both appellants claim that the deceased was fairly heavily in liquor at the time. Both claimed that because of their earlier experience with the deceased, they believed he would carry out his threat to kill them. Phillip then weighed only nine and a half stone.

When Phillip realized that his father was dead, he said to his brother who was pretty white, that they would have to bolt. Phillip went into the backyard and began to dig with a view to burying the deceased's body, but desisted. As he returned to the house he saw a garden fork, took it inside and plunged it into the deceased's stomach twice. Peter on the other hand claims to have seen the fork in the deceased when he recovered consciousness.

The medical evidence was to the effect that the deceased died of abdominal and cerebral haemorrhage. The presumptive cause of the bleeding was the great force applied to the stomach and the head of the deceased. Apart from lacerations caused by knife cuts, the deceased had five fractured ribs on the front on the right side and eight fractured ribs on the front of the left side, injuries which had been received before death. External violence which could have caused these fractures could have caused also the rupture of blood vessels in the abdomen. Kicking or jumping on the body would be consistent with the causation of such injuries. The likelihood of death being caused by the use of the garden fork was remote. Of course, the stab wounds as well as the tines of the garden fork had caused bleeding, which might well have contributed to the ultimate result. This medical evidence would be of considerable importance if one had to decide which of the appellants had in fact caused the death of the deceased. The description of the condition of the deceased's body and the photographs of it indicated that the deceased had been subjected to a savage and brutal attack of great violence.

The statements by Phillip and the record of interview with the police are consistent with and not contradictory of his sworn evidence. But a statement was made to a neighbour at an early stage by Phillip that "we've killed the old man".

The record of interview in Peter's case does not accord with his sworn evidence. In that interview he said that the deceased had received the wounds to the stomach and head by blows delivered by him. He claimed that he had turned on his father when the father cut him on the right arm with a knife and "got stuck into him" - starting with fists and kicks and that when he was semi-conscious he got the garden fork and rammed it into his stomach, slashing him a bit across the stomach and legs with a knife, Phillip meantime kicking the father a few times and slashing him with a knife. Peter said he kicked the deceased in the head a couple of times after the deceased had fallen down: but did not stab him in the head. He claimed to have used a knife found in the bathroom during the struggle with the deceased, Phillip and himself. A great part of this record of interview Peter in evidence said was untrue - in particular those parts which are at variance with his evidence. Phillip said that Peter had made these statements to protect him, Phillip, as being the younger.

Whilst the learned trial judge did tell the jury quite clearly and emphatically that the guilt or otherwise of each accused should be considered separately, the summing up seems to me to have been generally appropriate to a case of common design to kill. The evidence against each accused was not segregated, nor was the question of what acts in particular resulted in death at all emphasized. Doubtless, his Honour qualified his statements as to the effect of common purpose with the statement, "if you find that the acts which caused death were part of a common purpose " But the jury were not given any assistance by analysis of the evidence which might be said to support a common purpose or common design.

Although there was evidence of conversations in which the accused had expressed a willingness to kill the deceased, I have been unable to find any basis in the evidence for a conclusion of a common purpose or common design anterior to the events of the fateful evening. A finding that the accused came home on this evening having agreed to join in killing their father would not, in my opinion, have been supportable on the evidence.

But, the common design, the agreement to join with each other in killing the father, could have been formed during the evening after the trouble began. Nothing in the evidence suggests any communication between the accused during that time. None was suggested in their questioning, either in or out of court. Indeed, if accepted, the evidence of the accused points against an arrangement between them. That evidence, as distinct from the statements in the record of interview, if accepted, really denies any common plan, purpose or design. There could be little doubt that the occurrences of the evening began with the assault by the deceased on Peter. But, if Peter's statement to the police rather than his evidence is accepted, the possibility of concurrent action not springing from arrangement but from identity of interest and response could be considered. That possibility ought, in my opinion, to have been educed before the jury and distinguished from a case of common design.

However, I think it must be conceded that if the jury, using the statements to the police as well as such parts of the sworn evidence as they believed, concluded that the two accused assisted one another in the assault which resulted in death, they could infer there was an agreement, impliedly made, jointly to kill or to do grievous bodily harm. But, again, it would have been preferable to alert the jury to the matters which they could properly consider in this connexion. Some assistance might have been given to the jury as to the relationship of the evidence to a possible finding of common design, and in particular with respect to the possibility of there having been merely concurrent action not in pursuance of agreement or arrangement or with respect to the possibility of the elder boy being an accessory as distinct from a co-operator in pursuance of an agreement.

It is noticeable that no assistance was afforded the jury in the body of the summing up as to what they might do in the event that they did not find a common design. However, no objection was taken to the summing up in any of its aspects to which I have so far referred: nor was a ground of appeal founded on any of them.

However, counsel for the defence at the conclusion of the summing up called his Honour's attention to the fact that reference had not been made by his Honour to the evidence given by the accused. In response, his Honour then went through that evidence. In the course of the recital, his Honour said that if Peter's evidence represented:

what happened, there is no question of any common design, initially at any event, because he was on his own when his father attacked him and he dropped out of the proceedings from then on.

If you were to accept this evidence, or rather to be in the position where the Crown had not convinced you beyond a reasonable doubt of its case and accepted this, you would have to give serious consideration to whether there ever was a common enterprise and to what part Peter, the elder boy, played in the killing of his father at all. If there was no common design he obviously did not strike the blow which killed the father, that was done by his brother.

Counsel for the accused not thinking this direction sufficient, asked for a specific direction " that unless the jury were satisfied beyond reasonable doubt that Peter was not knocked down and consequently took no further part, then the acts of Phillip - ". His Honour anticipated the rest of the submission by saying:

I just told them that. If they accept this evidence and that Peter was out of the fight early on, it would be very difficult to say there was any common design. and that it would follow that Peter was not guilty of any offence.

To continue with the summing up, the matter of self-defence was properly and fairly left to the jury.

In relation to provocation the trial judge took the following course. First, he read to the jury the well-known passage from the judgment of the Court of Criminal Appeal in R. v. Duffy [3] which sets out with approval a direction on provocation given by Lord Devlin as a trial judge in that case. Thereafter, he said:

When you come to consider provocation you bear in mind that it has three elements; the act of provocation, that is, the loss of self-control, both actual and reasonable, and the retaliation and proportion of provocation. 1. [1949] 1 All E.R. 932n.

He then read the jury so much of s. 23 of the Crimes Act, 1900 N.S.W. as amended, ("the Crimes Act ") as included par. (a) as to the provocation not being incited by the accused, and reminded the jury of the evidence as to the accused "needling" their father. He proceeded:

It next has to be shown, and you have to find, that the provocation 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 finally that the act causing death was done suddenly in the heat of passion caused by such provocation, without intent to take life That means without a pre-formed premeditated - intention to take life which had come into being a long time before this provocation arose. The accused has to prove those three things to your satisfaction, on a balance of probabilities. And, again: If you are satisfied that there was provocation offered, if you are satisfied that the retaliation was commensurate with the attack which was offered - the provocation - a reasonable retaliation, and that the accused has made out those three elements about which I have told you, then it would be your duty to find each of the accused not guilty of murder but guilty of manslaughter.

His Honour indicated to the jury the possible verdicts open to them as:

first of all, if you are satisfied beyond a reasonable doubt that the accused - and you have to be satisfied in regard to both of them - killed their father in pursuance of a common design with intent to kill, then they are guilty of murder. You must remember, of course, that in finding that you have to exclude self-defence, and you also have to exclude that they acted using more force than was reasonably necessary for the occasion, because in that case they would be entitled to a verdict of manslaughter. If, of course, you take the view that they were justified in doing what they did in self-defence, as I have defined it, then they are not guilty of any offence and are entitled to be found not guilty. If, of course, you take the view that they acted under provocation, as I have defined it to you, and that the accused have satisfied you on the balance of probabilities of those three matters, then the verdict would be manslaughter. Those are the possible verdicts.

The jury, after an hour's retirement, sent to the judge a note about provocation. His Honour then said to them:

What I told you about provocation was that it only applies to reduce murder to manslaughter. The essential elements of provocation are that provocation is any act or series of acts of a kind which would deprive the ordinary person of self-control and which in fact deprived the accused of self-control, if the accused acts under the immediate influence, before he had time to recover himself. There are three elements: the act of provocation, the loss of self-control, whether both actual and reasonable, and the retaliation being in proportion to the provocation.

His Honour then read part of s. 23 of the Crimes Act, thereafter pointing out that what has to be absent is the previously formed intention to kill. In answer to the judge, the foreman said: "It is pretty clear".

I have been at pains to set out these portions of the trial judge's summing up in order to call attention to three aspects of it: first of all, the absence of any assistance to the jury in relating the evidence to the question of whether or not there was common design and, in the course of doing so, distinguishing between common design and mere concurrent action and distinguishing also the action of an accessory; secondly, that there was no particular emphasis on the possibility that the elder boy could be acquitted on the footing that he had neither himself killed nor assisted to kill even on the footing that the accused were not wholly believed as to the unconsciousness of Peter during part of the attack by Phillip. No particular attention was paid in this connexion to the question - what really was the act or were the acts which caused death? Section 18 of the Crimes Act requires the relationship of the intent to kill or to inflict grievous bodily harm, leaving aside acts done with reckless indifference as an aspect not relevant to the present case, to the act or acts of the accused which caused death; thirdly, to demonstrate that the trial judge placed an onus on the accused to satisfy the jury as a specific matter that the retaliation was proportionate to the provocation. I shall later refer to the first two of these aspects of the summing up when considering what, in all the circumstances, ought to be done in this appeal.

The only submission argued in this appeal was that the direction on provocation was erroneous because it did not put an onus on the Crown to establish that the killing was unprovoked and that the retaliation was undue, but, on the contrary, placed an onus on the accused to satisfy the jury as to proportionate nature of the acts of the accused causing death.

There has been a great deal said in reported cases and in academic writing in recent years about provocation. I have taken the occasion to refresh my recollection of a great part of this literature.

Because of Woolmington's Case (Woolmington v. Director of Public Prosecutions [4] ), it is submitted here that the common law is that the Crown must establish that the killing was unprovoked where there is any material on which it might reasonably be thought that there was a case of provocation. But the present case is governed in relation to provocation at least to some extent, although as I think, entirely, by s. 23 of the Crimes Act. In assigning a meaning to this section and thus determining its operation it must be remembered that its forerunner, namely, s. 370 of the Criminal Law Amendment Act, 1882 N.S.W. expressed in substantially the same terms, was enacted at a time before Woolmington's Case, when it was thought that the common law did place the whole onus of establishing provocation on the accused. That view of the common law was also current at the time s. 23 was passed in 1900. It may be right, of course, to say that those who framed the sections - s. 370 and s. 23 - thought they were merely reproducing the common law, though extending it in so far as language and gesture might be relevantly provocative. But the question is what do the enacted words themselves mean and what Parliamentary intention do they exhibit, as at the time of their enactment bearing in mind the common acceptance of the time as to the common law. That intended meaning, it seems to me will not be altered by the change of view meantime as to what the common law is or ought to be declared to be. The meaning of the words used, in my opinion, will remain. It is not a case of words having a widening denotation with the emergence of a new situation to which they can relevantly apply.

It is submitted that the section does not specify all the matters which need to be considered in deciding that the crime be reduced to manslaughter by reason of provocation. It is said that the proportional quality of the acts causing death to the provocation of the accused, regarded as a separate ingredient of operative provocation, not being a matter mentioned in the section, remains to be negatived by the Crown. It is further submitted that despite the terms of the section the onus remains on the Crown to establish that the acts causing death were unprovoked.

The submission raises two questions, firstly a point of construction, namely, does s. 23 not merely provide that some matters relating to provocation must be established by the accused but, on the contrary, specifies all the matters which, being established to the jury's satisfaction, will warrant the reduction of the crime of murder to that of manslaughter? Secondly, if the answer to the first question is that there are matters to be established or negatived outside those specifically mentioned in the section, is the proportional nature of the relevant acts of the accused a separate element in provocation at common law? There is some interaction of these questions so that their consideration together will be convenient. As I have indicated, the trial judge instructed the jury that the proportional nature of the acts of the accused must be established by the accused on a balance of probabilities as a distinct and separate matter. Thus the correctness of that direction depends on the resolution of these questions.

The words of the section, in my opinion, necessitate the view that it was prescribing matters of which the jury had to be satisfied before provocation could be operative to reduce the crime of murder to manslaughter. In providing that it must appear to the jury that the stated circumstances exist the section, in my opinion, imposes an onus on the accused in respect of those matters. The words of the section clearly state that the jury must find positively the three matters set out in the proviso of the section. This, of necessity, in my opinion, means that they must be satisfied by the accused of all of those things no doubt on a balance of probabilities. But the question remains as to whether those things state the whole of the "elements" of provocation.

The Crown, before provocation becomes an operative factor at all, must have satisfied the jury beyond reasonable doubt that murder, provocation apart, had been committed by the accused. Thus, there is no question from that point on of any acquittal. Oddly enough, where the death penalty is not exacted or provided for, this means that if manslaughter is found, the accused is sentenced by the judge and not as it were by the Executive in commuting the sentence of death if murder has been found.

It is to my mind, important to stress that operative provocation does no more than reduce the crime of murder to manslaughter. Unless the jury would have been prepared to find murder, no question of what I have called operative provocation arises. In order to find murder, there must be present an actual intent to kill or to do grievous bodily harm, leaving on one side the case of reckless indifference to foreseen consequences. I do not understand their Lordships in Attorney-General (Ceylon) v. Perera [5] to have intended that there might be a case of provocation resulting in a verdict of manslaughter when an intent to kill or to do grievous bodily harm was absent. This understanding is reinforced by the reasons for judgment of the Privy Council in Lee Chun-Chuen v. The Queen [6] , where their Lordships were firstly, at pains to dissociate themselves from Viscount Simon's expressions in Holmes v. Director of Public Prosecutions [7] and, secondly, thought it right to reaffirm what was said in Attorney-General (Ceylon) v. Perera [5] .

1. [1953] A.C. 200, at p. 206. 2. [1963] A.C. 220, at pp. 227-228. 3. [1946] A.C. 588. 4. [1953] A.C. 200, at p. 206.

Some members of this Court and of the Privy Council in Parker v. The Queen [8] , took it that the words at the end of par. (c) of the proviso to s. 23, "without intent to take life", referred only to a premeditated intent or an intent formed apart from any effect or consequence of the provocation and, as it were, independently of it. This, although questioned during argument in this matter, was obviously, if I may say so, a correct decision because, as I have pointed out, before provocation becomes a question, the intent to kill or to do grievous bodily harm or relevant reckless indifference must be present. It is not correct, in my opinion, to say, as has been said, that provocation denies malice, unless malice in such a statement is confined to premeditation. I would accept the explanation given by P. A. Landon in Law Quarterly Review, vol. 65 (1949), at pp. 104-105 of the sense in which Viscount Simon ought to be taken to have referred to malice in Holmes v. Director of Public Prosecutions [9] . I would also accept Professor Edwards' explanation in Law Quarterly Review, vol. 69 (1953), at p. 548 of Hale's use of the word "malice". It seems to me s. 23, quite understandably, as does the common law, contemplates that the provocation will have resulted in an actual intent to kill or to do grievous bodily harm or relevant reckless indifference; but because that intent or recklessness is a product of provocation, the crime, the elements of which are otherwise made out, should be reduced to manslaughter.

1. (1963) 111 C.L.R. 610 (H.C.); (1964) 111 C.L.R. 665; [1964] A.C. 1369 (P.C.). 2. [1946] A.C. 588.

An intent to kill may be a premeditated intent, that is to say, an intent existing anterior to the conduct or act which is put forward as provocation. In that event, whatever provocation may supervene will have no relevance. The premeditated intent precludes the possibility of operative provocation. That is reflected in the final words of par. (c) of the proviso to s. 23.

But, as was pointed out in Parker v. The Queen [8] , although there may be no premeditation and although there may be provocation, an intent to kill or to do grievous bodily harm may arise independently, and not because of the provocation. Provocation, whatever it might have been, will not be operative to reduce the crime to manslaughter where the relevant intent has arisen independently of the provocation. This may be so in a case where the effect of the provocation is spent before the intent to kill arises. It is in this connexion that action in the heat of the moment and the absence of a "cooling off" period are such important considerations.

1. (1963) 111 C.L.R. 610 (H.C.); (1964) 111 C.L.R. 665; [1964] A.C. 1369 (P.C.).

The importance of the fatal act having been taken in the heat of passion may also be related to the proportion of that act to the provocation and to whether the provocative act or situation is such as would lead an ordinary man to lose his self-control so as to do an act of the kind of the fatal act done by the accused. If an ordinary man would not be so far affected, there is no case for operative provocation. The accused's act, though done during his loss of self-control, will be accounted as due to malice.

I do not pause to discuss the consequences in connexion with the objective test of loss of self-control of exchanging the ordinary man for the reasonable man in the expression of that element of operative provocation. In relation to the element of loss of self-control, not a condition of applied reason, my own preference is for the objective element to be related to the ordinary man. The objective test is, in my view, better related to human nature rather than to reason and thus to the ordinary man. So to relate it will be to increase the area in which, by use of the objective test, acts in fact done by an accused, hypersensitive or of unusual temperament, though in fact done whilst out of self-control, cannot qualify as acts done under provocation. But none the less, the adoption and proper application of the objective test of loss of self-control better fits the administration of justice than the adoption of a subjective test. What seeming injustice may result from the use of the objective test must be left to the wisdom and discretion of the Executive.

My reading of the early cases relating to provocation leads me to the opinion that it was then conceived that there were degrees of loss of self-control; that the description "loss of self-control" was not of an absolute state; this acceptance that there are degrees of loss of self-control was consistent with the later adoption of the view that whether the accused had relevantly lost self-control depended on whether the ordinary man would, in like circumstances, have lost self-control to the point of doing an act of the kind and degree by which the accused killed the deceased. Disproportion between the provocative act and the fatal act might result in the conclusion that an ordinary man would not have so far lost self-control in like circumstances. The provocation in that case is relevantly inoperative. The notion that a state of loss of self-control is relative is basic to the concept of the objective test. That test properly applied keeps provocation within bounds. I can see little warrant for applying a test of reasonableness to the acts of a man who has justifiably i.e., satisfying the objective test, lost his self-control. First to find such justifiable loss of self-control and then to measure according to reason what the person so out of self-control did, seems to me to be an erroneous step. But I can understand, once the objective test of the lack of self-control has been adopted, that it is necessary to consider in applying it whether an ordinary man would have lost self-control to the requisite extent by reason of the provocation before it is possible to reduce the crime to manslaughter. East's reference to an act of provocation which might heat the blood to a proportionate degree of resentment and keep it boiling to the moment of the commission of the fatal act is understandable, in my opinion, on the footing that the act of resentment must in fact have been the act of a man out of self-control in circumstances where an ordinary man would have lost self-control to the point of doing an act of that kind and degree (see Pleas of the Crown (1803), vol. 1, p. 238). It thus relates both to the extent as well as to causality of the loss of self-control. Keating J.'s remarks in Reg. v. Welsh [10] are, in my opinion, to a like effect: "Something which might naturally cause an ordinary and reasonably minded man to lose his self-control and commit such an act".

Having considered the reported cases and the writings on this matter I have come to the conclusion that the 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. The relationship of the fatal act to the provocation is perhaps best 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.

Too much, it seems to me, has been taken from Lord Devlin's dicta in Lee Chun-Chuen v. The Queen [11] : and perhaps too little prominence has been given to so much of his Lordship's remarks as emphasized the inter-relationship of the three matters of which he spoke. He mentioned "They" - i.e. the stated three elements - "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 emphasize is that provocation in law means something more than a provocative incident". Their Lordship's decision in that case was that the evidence established nothing but a provocative incident without relevant consequence. Lord Devlin's summation of the "elements" in provocation was not for the purpose of detailed analysis of them but as part of the indication that, to be operative, the provocation must have produced an appropriate loss of self-control during which the fatal act was done. His Lordship did not set out separate elements to be considered disjointly in some temporal order. On the contrary, he emphasized the interaction of the several matters, which might be called considerations, to be in mind in deciding whether the provocation was, or could in law be permitted to be, operative in reducing the crime to manslaughter.

This Court in Da Costa v. The Queen [12] did seem to decide that, there being evidence that the provocation was such as to have caused a reasonable person to have lost his self-control, there remained, as a separate matter, the question whether there was evidence on which it could have been concluded that the fatal act was proportional to the provocation. In my respectful opinion this view resulted from treating Lord Devlin's judgment in Lee Chun-Chuen v. The Queen [13] as laying down three independent or separate integers of operative provocation. I have already indicated my opinion that his Lordship did not do so. Consequently, with due respect, I could not adopt the same basis for the Court's conclusion in Da Costa v. The Queen as would appear from Sir William Owen's reasons. But, of course, if the question of loss of self-control is approached as treating the proportion of the fatal act as a matter for consideration in applying the objective test, the decision of the Court in the case could be maintained.

1. (1968) 118 C.L.R. 186. 2. [1963] A.C., at pp. 231-232.

It is relevant at this point to point out that in their joint judgment in Parker v. The Queen, Taylor and Owen JJ. seem to treat the proportion of the retaliation as part of the application of the objective test of loss of self-control. Also they appear to subscribe to the view that loss of self-control is a relative state. Speaking of the proviso in s. 23, their Honours said [14] :

It has been said that the proviso is silent upon the question whether there must be some reasonable relationship between the provocation and the act or acts causing death. This is so in the sense that no express mention is made of this factor. But, surely, when the proviso requires that the provocation must be such 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, it is speaking of loss of the power of self-control in relation to the act or acts causing death. In other words, the question is not whether there was some loss of the power of self-control, but whether the loss of self-control was of such extent and degree as to provide an explanation for or, to constitute, in some measure, an excuse for the acts causing death. And, of course, the provocation must have been of such a character as was calculated to eprive an ordinary person of the power of self-control to that extent. I find myself in agreement with these concepts. 1. (1963) 111 C.L.R., at p. 641.

The practice of directing juries specifically as to the need for no more than a proportionate response to the provocation is said by Professor Glanville Williams in an article "Provocation and the Reasonable Man", [1954] Criminal Law Review, at p. 748, not to have been adopted until "lately". No doubt the language used by Viscount Simon in Mancini v. Director of Public Prosecutions [15] has had its influence in changing the practice. The movement towards the more recent practice finds its culmination in the direction given by Lord Devlin as a trial judge set out in the judgment of the Court of Criminal Appeal in R. v. Duffy [16] , and Lord Devlin's judgment in Lee Chun-Chuen v. The Queen [16a] .

1. [1942] A.C. 1. 2. [1949] 1 All E.R. 932n. 3. [1963] A.C., at pp. 231-232.

It is profitable, I think, to set out Viscount Simon's precise words in Mancini v. Director of Public Prosecutions, his Lordship says [17] :

The test to be applied is that of the effect of the provocation on a reasonable man, as was laid down by the Court of Criminal Appeal in R. v. Lesbini [18] , so that an unusually excitable or pugnacious individual is not entitled to rely on provocation which would not have led an ordinary person to act as he did. In applying the test, it is of particular importance (a) to consider whether a sufficient interval has elapsed since the provocation to allow a reasonable man time to cool, and (b) to take into account the instrument with which the homicide was effected, for to retort, in the heat of passion induced by provocation, by a simple blow, is a very different thing from making use of a deadly instrument like a concealed dagger. In short, the mode of resentment must bear a reasonable relationship to the provocation if the offence is to be reduced to manslaughter. 1. [1942] A.C., at p. 9. 2. [1914] 3 K.B. 1116.

It is to be observed that the emphasis which his Lordship was making was upon the effect of the provocation on a reasonable man. In his Lordship's view, it was very important that the action causing death should have been taken in the heat of passion and not after an interval in which reason might be expected to return. Thus the provocation must have been causal. In calling attention to the instrument used, his Lordship did so, in my opinion, in relation to the determination whether an ordinary man in the circumstances would relevantly have lost self-control. His Lordship meant, as I think, that it will be proper to consider what the accused in fact did and with what he did it, when determining whether the reasonable man would have so lost self-control by reason of the provocation offered as to have done things of the kind and degree which the accused, in fact, did. His Lordship had earlier used a quotation from art. 317 of Stephen's Digest of the Criminal Law as part of the development of his reasons for judgment. That article includes the nature of the fatal act in the circumstances tending to show the state of the accused's mind. His Lordship seems to have related this passage to the objective test of the loss of self-control, for his next sentence refers to that test as laid down in R. v. Lesbini [18] . It was in that sense, it seems to me as I have said, that the early writers should be understood when speaking of the reasonable proportion of the resentment to the provocation. If the extremity of the resentment is due rather to the idiosyncrasy of the accused than to the reactions of an ordinary man in the circumstances, then the provocation cannot be relevantly effective: or that extremity may indicate because of its disproportion, that the reaction generated by the provocation was not the basis of the accused's acts.

To take into account the mode and extent of retaliation when determining whether an ordinary man, subjected to the like acts of provocation in all the circumstances in which the accused then stood, would have lost self-control to the point of doing something akin to what the accused has done is one thing. To require that it be established positively and, as a separate issue or element, whether the act of the accused was in fact proportionate to the provocation, is quite another; or to require the Crown as a specific matter to negative that proportion is quite another. This is particularly so if it be assumed that it has already been concluded that the accused had relevantly lost self-control. In considering whether an ordinary man would have lost self-control so as to form an intent to kill and to kill in the manner in which the accused did so, the jury may think the provocation was such that an ordinary man might react in the way in which the accused reacted. After all, it is the induced intent to kill rather than the induced fatal act which is the critical consideration. As I have stressed, the provocation is irrelevant unless there was an intent to kill or to do grievous bodily harm: and the provocation to be operative must have caused that intent. No doubt the question is difficult, namely: would the actual provocation, which has caused the accused so far to have lost self-control as to have formed an intent to kill, have caused an ordinary man to have lost his self-control and to have formed that intent? To express the objective test as whether the provocation would have caused an ordinary man to have so far lost self-control as to have done an act of the kind or degree done by the accused, tends somewhat to obscure the necessity of there being an intent to kill or do grievous bodily harm. Emphasis on the essential causation of the requisite intent may, on the one hand, make provocation more difficult to establish and, on the other hand, lessen perhaps the importance in the mind of a tribunal of the particular way in which the intent to kill or to do grievous bodily harm was effectuated.

Without indulging in any niceties of proportion, such a tribunal may think that a suggested disproportion is really indicative of the proposition that an ordinary man would have so lost self-control. On the other hand, it may think that the kind and degree of the retaliation is not indicative of loss of self-control but rather is indicative of malice. However, in my opinion, it is in respect of that element of operative provocation that the question of the relation between what the accused did and the provocation has its place. A related consideration is whether the fatal act is attributable to the provocation rather than to malice independent of the provocation. Lord Diplock in Phillips v. The Queen [19] , in my opinion, lends no support to the view that the relationship of the reaction to the provocation is itself a specific issue on which the jury must be directed as such. Rather, his Lordship, as I read his reasons, although stating the test of operative provocation as involving two steps, took the view that there really was but one question: would an ordinary man have so far lost self-control as to have done an act of the kind done by the accused: see p. 137 and second paragraph commencing on p. 138. Though that paragraph relates to the situation following upon the passage of the Homicide Act, 1957 U.K., it is proper, in my opinion, to use it where common law or, as in New South Wales, where s. 23 has effect.

Parke B. in R. v. Thomas [20] puts the matter in a sense which I would respectfully adopt. His Lordship was summing up in a case in which, in response to blows with a fist, an accused, who had a sword-stick in hand, stabbed the prisoner. He was indicted for malicious stabbing. His Lordship said [21] :

There is no doubt, that whenever death ensues from violence inflicted by the hand of another, the law presumes, prima facie, that it is murder; and it must be so treated, unless, upon the evidence for or against the accused, the jury are induced to come to a conclusion that the offence is of a less degree. Here, the question would be, if death had ensued, whether it would have been manslaughter. If a person receives a blow, and immediately avenges it with any instrument that he may happen to have in his hand, then the offence will be only manslaughter, provided the blow is to be attributed to the passion of anger arising from that previous provocation, for anger is a passion to which good and bad men are both subject. But the law requires two things, first, that there should be that provocation, and secondly, that the fatal blow should be clearly traced to the influence of passion arising from that provocation. There is no doubt here, but that a violent assault was committed; but the question is, whether the blow given by the prisoner was produced by the passion of anger excited by that assault. If you see that a person denotes, by the manner in which he avenges a previous blow, that he is not excited by a sudden transport of passion, but under the influence of that wicked disposition, that bad spirit, which the law terms "malice", in the definition of wilful murder, then the offence would not be manslaughter. Suppose, for instance, a blow were given, and the party struck beat the other's head to pieces by continued, cruel, and repeated blows; then you could not attribute that act to the passion of anger, and the offence would be murder. And so if you find that, before the stroke is given, there is a determination to punish any man who gives a blow with such an instrument as the one which the prisoner used, because, if you are satisfied that before the blow was given the prisoner meant to give a wound with such an instrument, it is impossible to attribute the giving such a wound to the passion of anger excited by that blow, for no man who was under proper feelings, - none but a bad man of a wicked and cruel disposition, would really determine beforehand to resent a blow with such an instrument. The question, on the evidence, is, whether the prisoner had determined to do so. 1. (1833) 7 Car. & P. 817 [173 E.R. 356]. 2. (1833) 7 Car. & P., at pp. 818-819. [173 E.R., at p. 357].

I have reached the conclusion that there is no warrant for a direction that the proportionate nature of the fatal act must be considered as a separate and distinct matter. I think that that conclusion is not out of line with the cases, if the basic authorities are properly understood.

At common law, without the constraints of a section such as s. 23 of the Crimes Act, and as it is established after Woolmington's Case [22] , the Crown carries an onus of establishing that the killing was unprovoked where there is sufficient evidentiary material to raise the possibility of operative provocation. The proportion of the fatal act to the provocation may be dealt with in a summing up as a circumstance to be considered generally by a jury who have been directed as to the need to satisfy the objective test of loss of self-control. But it ought not to be put before the jury as a specific matter to be separately dealt with as a distinct and separate element in the establishment of provocation. It may be possible in a case which is governed by the common law and the proportionate nature of the fatal act is left to the jury as a specific issue, to deal with a summing up as the Court of Criminal Appeal dealt with the summing up in Reg. v. Brown [23] . But where the onus is placed on the accused to establish facts, as is the case under s. 23 of the Crimes Act, I would be unable to take that course.

As indicated, I am of opinion that the proportion of the fatal act to the provocation is not, at common law, a separate element to be established apart from the question whether an ordinary man, placed as the accused then was, would have so far lost self-control as to have formed an intent to murder or to inflict grievous bodily harm, doing an act or acts of the kind and degree done by the accused. This conclusion bears, of course, upon the construction of s. 23 of the Crimes Act. Paragraph (c) of the proviso to that section sets out the objective test of loss of self-control. That is the matter on which the jury must be satisfied. A consideration, and no doubt an important consideration, for them in that connexion is the proportion of the fatal act to the provocation. That consideration is embraced in what has to be decided to satisfy par. (c).

Section 23 does not provide that the jury must find that the retaliation, to use a word which has obtained currency, should be proportionate to the provocation. Therefore, having concluded that the proportion of the fatal act to the provocation is not a separate element of operative provocation, I have no difficulty in concluding that s. 23 does not place an onus on the accused to establish that proportion as a specific matter. The section, in my opinion, states all that must be established, and not only some of what must be established, if the crime is to be reduced from murder to manslaughter.

It is perhaps interesting to observe how the Criminal Codes operating in Australia and New Zealand deal with this matter.

The Criminal Code of Queensland in relation to provocation resulting in mere assault, expressly provides that the force used is not to be disproportionate to the provocation and is not intended or is not such as is likely to cause death or grievous bodily harm. Section 304 entitled "Killing on Provocation" contains no such qualification. The provision there is that the act which causes death was done in the heat of passion caused by sudden provocation and before there is time for passion to cool.

Section 160 of the Criminal Code of Tasmania also omits any reference to the proportionate nature of the response.

Section 169 of the New Zealand Crimes Act of 1961 which deals with provocation, does not include the need to have proportionate response.

It follows that I do not think there is, in New South Wales, any onus on the Crown in relation to the provocation. What was said in Parker v. The Queen [24] to the contrary is not, in my opinion, good law. In this connexion it ought to be remembered that provocation is not a defence. Sir John Barry, in an article "The Defence of Provocation", Res Judicatae, vol. 4 (1948), at p. 133, points out that provocation does not mean that malice, as the formation of an intention to kill or inflict grievous bodily harm, is not present, but, that the formation of that intent in the particular circumstances is excusable to the extent that the killing, though criminal, should not have been regarded as punishable by death. The passage usefully reminds us that the provocation does not provide the accused with a defence properly so-called: it affords him a means of avoiding the extreme penalty. It is thus understandable that, though the establishment of all elements of criminality should rest on the Crown, there is no reason why any of the elements of provocation should be established by the Crown. Section 23 gives effect to such a view. It does not create, in my opinion, an unjust or unfair situation.

I ought to add at this point that I fully agree with the majority of the Full Court in thinking that it would be both impractical and most confusing to attempt to sum up in a manner conforming to the observation of Lord Morris in Parker v. The Queen [24] . In my opinion, a trial judge summing up in New South Wales - where there is material proper to be left to the jury on operative provocation, that is to say, both as to provocation and as to its effect on an ordinary man and on the accused - should instruct the jury that they have no need to consider operative provocation until they are satisfied by the Crown of murder. Then, and only then, should they turn to the question whether there should be a verdict of manslaughter because of provocation. They should be told that it is for the accused to satisfy them on a balance of probabilities that there was in fact provocation, not induced by the accused or his conduct, which would have caused an ordinary man, placed in all the circumstances in relation to the deceased as the accused then stood, to have so far lost his self-control as to have formed an intent to kill or to do grievous bodily harm to the deceased and that the accused did in fact so lose his self-control. The jury should be told that, in considering whether the ordinary man would have so far lost self-control, they will consider the nature and degree of the act or acts by which the accused killed the deceased and the proportion of that act or those acts to the nature of the provocation offered.

They should be told that if they find that the deceased was killed by an act premeditated by the accused before any suggested provocation arose, they should not consider returning a verdict of manslaughter based on provocation. They should further be told that if, having considered the question of provocation, they find that the fatal act did not result from the provocation but from an intent to kill formed independently of the provocation, or if they are not satisfied that an ordinary man under the provocation would have formed an intent to kill or to do grievous bodily harm, they should not return a verdict of manslaughter by reason of provocation. If the facts warrant it, a direction as to manslaughter on some other basis should be given.

In the present case, the trial judge instructed the jury that the accused, to make out operative provocation, must establish to their satisfaction on a balance of probabilities as a separate and distinct matter, that their acts done to and upon the deceased were proportionate to the provocation offered by the deceased. The jury may well have found difficulty in accepting the attack made on the deceased as proportionate, divorced from the question whether an ordinary man in the circumstances of the accused would have so far lost his self-control as to have formed an intent to kill or do grievous bodily harm and to have done acts of that kind and degree. The acts were so savage that a direction to treat their proportion as a separate and distinct issue, the proof of which rested on the accused, was likely to dominate the jury's mind and distract attention from an overall consideration of the real question, namely, whether the ordinary man would have so far lost self-control as during that time to have formed the requisite intent and to have done acts of the kind and degree done by the accused: and also, perhaps, distract attention from the quite difficult question of common design.

I have already indicated that I could not consider the summing up as a whole adequate, as was done in Reg. v. Brown [25] . In my opinion, the direction as to provocation though conforming to statements made in decided cases, was in this respect erroneous. In my opinion, the convictions for murder ought not to be allowed to stand. I would be of that opinion quite apart from the other aspects of the summing up to which I have earlier called attention. But bearing in mind those aspects there is a stronger case for setting aside the convictions and regarding it as unsafe to sustain them.

There remains to consider what ought to be done in this matter. Ought there to be a new trial? If, on the one hand, an acquittal of either or both the accused might result, or if, on the other hand, a verdict of murder might be returned, a new trial would be appropriate. But, if the Crown does not press for the opportunity to seek a verdict of murder and if, by reason of the course of the trial which has been had, neither of the accused has any claim to an opportunity for acquittal, there would seem little sense in directing a new trial, simply to afford an opportunity for the return of a verdict of manslaughter.

This is a case in which, in my opinion, a properly instructed jury could return a verdict of murder. In that respect it does not resemble Pemble v. The Queen [26] , as I saw and still see the facts of that case and the implications of the jury's verdict. Here the jury, in my opinion, have not believed the accused's story. Although I have offered criticisms of the summing up, it must be taken that the jury have accepted that there was a common design to kill or do grievous bodily harm. Further, they were instructed as to the possibility of acquitting Peter. They did not: from which it should be taken that they did not accept his sworn evidence and so much of Phillip's evidence as confirmed Peter's non-participation in the fatal blows. Thus, I do not think that either accused now has a claim to have a further opportunity of an acquittal.

There was material, in my opinion, from which the jury could have found that the acts of the deceased caused a loss of self-control of both the accused. Whether or not the provocation would have caused an ordinary man to lose his self-control to the point of forming an intent to kill or do grievous bodily harm and doing what the accused did is a real question. But, in my opinion, if the Crown, being apprised of the Court's intention to set aside the convictions for murder and of its willingness to enter a verdict of manslaughter, does not insist on a new trial, I would set aside the convictions for murder, enter a verdict of manslaughter and remit the case to the Supreme Court for sentence. There are many instances in the books in which courts have made such a substitution in a variety of circumstances: see Hall [27] ; Corbett [28] ; Ayes [29] and Pemble v. The Queen [30] .

1. (1928) 21 Cr. App. R. 48. 2. (1940) 28 Cr. App. R. 11. 3. (1810) Russ. & Ry. 166 [168 E.R. 741]. 4. (1971) 124 C.L.R. 107. Gibbs J.

This is an appeal brought by special leave from an order of the Court of Criminal Appeal of New South Wales dismissing appeals brought by the appellants Peter Andrew Johnson and Phillip Alexander Johnson against their conviction on an indictment charging them with the murder of Kenneth Gauley Johnson [31] . The appeal raises important questions as to the proper directions to be given to a jury in New South Wales trying a charge of murder when an issue of provocation is raised.

On 6th February 1974, the date of the killing which gave rise to the charge, the appellants were young men aged respectively almost twenty and almost seventeen. Kenneth Gauley Johnson ("the deceased") was their father. Relationships within the family had become degraded; there was evidence that the deceased had on many occasions assaulted his wife and children and that the appellants felt only hatred towards him. On the morning of 5th February the deceased had tried, unsuccessfully, to have the appellants removed from his house. That evening the appellants visited their mother in hospital. The deceased also was at the hospital, and there was some unpleasantness - there is evidence that on the one hand the deceased was aggressive and that on the other hand Phillip appears to have gone out of his way to insult and annoy his father. After the appellants left the hospital they both had a good deal to drink. They returned home at about midnight. The only direct evidence of what then occurred is to be found in statements which the appellants allegedly made to the police and evidence which they gave at the trial. These accounts are in conflict in important respects, but it is not necessary for present purposes either to go into the details of the various versions of the incident or to discuss their inconsistencies. There was evidence which the jury could have accepted that the deceased, having been awakened, entered Peter's bedroom, told him to leave the house and then, without reason or warning, hit him hard in the face, breaking his nose; the deceased then seized Peter by the throat, threatening to kill him, and at the same time punching and kicking him. Phillip heard the noise and entered the room; he saw the deceased apparently attempting to strangle Peter and came to his brother's assistance. He screamed out to the deceased to leave Peter alone, but the deceased took no notice; Phillip then kicked the deceased in the face; the deceased went down, but got up again, now screaming threats to kill Phillip, who ran out to the kitchen, and returned with two knives. There followed a violent struggle in the course of which the deceased sustained the injuries from which he died. An examination of his body revealed haemorrhages throughout the brain as well as from ruptured blood vessels in five separate places within the abdomen - it was these haemorrhages that probably caused his death. Thirteen of his ribs were fractured and his left lung was punctured. There were numerous abrasions, cuts and scratches on his body, including no less than fourteen cuts in the abdomen as well as lacerations of the penis and scrotum. His abdomen bore also eight circular wounds caused when he was twice impaled with a garden fork. He had been the victim of a most brutal assault. It was not disputed that his injuries had been caused by one or both of the appellants. Phillip Johnson admitted both in his statements to the police and in his evidence that he had stabbed and kicked the deceased many times - according to his statement to the police he jumped upon the deceased's head about thirty or forty times, but in evidence he said that he thought that this statement was an exaggeration. He admitted driving the garden fork into the deceased but said that he believed that by the time that this was done the deceased was already dead. He said, both in his statement to the police and in his evidence, that he entered the fight to rescue his brother but then lost control of himself: "I couldn't control myself"; "something seemed to snap"; "I chucked a big mental". However, there was evidence that he left a hand-written note which read: "He's been such a cunt I decided to kill him for my mother's best interests." Peter Johnson in his statement to the police admitted kicking, punching and stabbing the deceased and said that it was he who drove the fork into his body, and at a time when the deceased was semiconscious, but in evidence he said that he had made these statements to protect his brother and that in fact they were not true. He said - and his brother confirmed in his evidence - that soon after Phillip had intervened and the deceased had fallen to the ground he tried to restrain Phillip who thereupon knocked him unconscious and that he took no part in the struggle except to defend himself at the very outset. Peter did not say that he lost control of himself but an express assertion to that effect is of course not necessary to raise an issue of provocation - an issue which might arise in his case if the jury rejected his evidence and acted upon his statements to the police, as they apparently did.

The sole question for decision in the appeal is whether the learned trial judge properly directed the jury on the issue of provocation. The submission on behalf of the appellants, put shortly, is that the direction was erroneous in two respects - (1) in directing the jury that the onus of proving all the elements necessary to constitute provocation rested on the accused, and (2) in directing them that the accused must show that there was a reasonable relationship between the provocation and the mode of retaliation. It is unnecessary to set out in full the directions given by the learned trial judge on the issue of provocation. They are quoted and carefully analysed in the judgments of the Court of Criminal Appeal. For the purpose of considering the first of the appellants' submissions it is enough to say that it may be accepted that the jury would have understood the summing up as meaning that the appellants bore the onus of proving all the elements necessary to constitute provocation. For the purposes of the second submission it is, however, desirable to refer to some passages from the summing up. The learned trial judge commenced his exposition of provocation by reading to the jury a passage from the direction given by Devlin J. in R. v. Duffy [32] , which concluded with the following words [33] :

Secondly, in considering whether provocation has or has not been made out, you must consider the retaliation in provocation - that is to say, whether the mode of resentment bears some proper and reasonable relationship to the sort of provocation that has been given. Fists might be answered with fists, but not with a deadly weapon, and that is a factor you have to bear in mind when you are considering the question of provocation. His Honour went on to tell the jury that provocation "has three elements; the act of provocation, that is [sic] the loss of self-control, both actual and reasonable, and the retaliation and proportion of provocation". He then discussed the provisions of the three paragraphs of the proviso to s. 23 (2) of the Crimes Act, 1900 N.S.W., as amended, and told the jury that "the accused has to prove those three things to your satisfaction, on a balance of probabilities". He concluded his directions on provocation by saying: If you are satisfied that there was provocation offered, if you are satisfied that the retaliation was commensurate with the attack which was offered - the provocation - a reasonable retaliation, and that the accused has made out those three elements about which I have told you, then it would be your duty to find each of the accused not guilty of murder but guilty of manslaughter. After the jury had retired they returned to court with a request for a further direction on the question of provocation. In acceding to that request his Honour again told the jury that "There are three elements: the act of provocation, the loss of self-control, whether both actual and reasonable, and the retaliation being in proportion to the provocation." 1. [1949] 1 All E.R. 932n. 2. [1949] 1 All E.R., at p. 933.

The question whether these directions were correct depends in large part on the effect of s. 23 of the Crimes Act. That section reenacts, with minor changes of punctuation and arrangement, the provisions of s. 370 of the Criminal Law Amendment Act of 1883 N.S.W.. It provides as follows:

(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.

The arguments in support of the appellants' submissions may be briefly restated as follows. At common law on a charge of murder the prosecution bears the onus of proving beyond a reasonable doubt that the killing was unprovoked. The provisions of s. 23 (2) were not intended to affect the onus of proof at all; alternatively, s. 23 (2) affects the common law rules only to the extent that the accused is required to prove on the balance of probabilities the three matters mentioned in pars (a), (b) and (c) of the proviso to that sub-section. At common law provocation "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": Lee Chun-Chuen v. The Queen [34] , cited in Da Costa v. The Queen [35] . Section 23 (2) deals only with the second of these elements - the loss of self-control. Therefore the onus of proving the other elements - that there was a provocative act and that the retaliation was proportionate to the provocation - remains on the prosecution. Alternatively s. 23 states exhaustively the law with regard to provocation, or at least all the elements of provocation; if that is so, it is wrong to suggest to a jury that it is an element of provocation that the retaliation was in proportion to the provocation. 1. [1963] A.C. 220, at p. 231. 2. (1968) 118 C.L.R. 186, at p. 214.

In Parker v. The Queen [36] the effect of s. 23 was considered both in this Court and in the Judicial Committee but not all of the difficulties caused by that provision were resolved. The question that fell directly for decision in that case was whether in all the circumstances the issue of provocation should have been left to the jury. This question was answered adversely to the accused by a majority of this Court but in his favour by the Judicial Committee. A preliminary question was whether the proviso to s. 23 (2) applies to all cases where provocation is in question or is limited to provocation alleged to be constituted only by the use of language and gestures. It was held in both courts that the proviso is not limited in that way but is of general application. That question may now be regarded as settled and it is perhaps the only matter of law which the case actually decided.

1. (1963) 111 C.L.R. 610; (1964) 111 C.L.R. 665; [1964] A.C. 1369.

However, both in this Court and before their Lordships particular consideration was given to two other questions arising under s. 23. The more important of those questions for the purposes of that case was whether the words "without intent to take life" in par. (c) of the proviso to sub-s. (2) should be understood without qualification, or whether they refer only to a premeditated intention, that is an intention which was formed independently of the provocation. In the Judicial Committee their Lordships considered that whichever view was accepted on this question the issue of provocation ought not to have been withdrawn from the jury on the facts of the case. It was therefore unnecessary for the purposes of the decision to decide the question, but the matter had been fully argued and their Lordships went on to express their conclusions upon it. They held (accepting the views of Dixon C.J. and Windeyer J. in preference to those of the majority in this Court) that the section applies only to a premeditated intent, by which they meant "that the homicidal act was the result of the passionate impetus caused by the provocation (assuming always that the conditions of pars (a) and (b) are satisfied) and that it was not done pursuant to an "intent" to take life which was either formed previously to or was formed independently of the provocation" [37] . In support of this view they pointed out that if the words of s. 23 were construed according to the strictest possible literal interpretation then provocation could reduce the crime of killing from murder to manslaughter if the loss of self-control caused by the provocation induced an intent to cause grievous bodily harm but not if it induced an intent to take life; this would be a surprising distinction and one which would impose a very difficult task upon a jury [38] . Further, they said that the rule now accepted in the common law, that provocation may arise where there is an intention to kill, is not a new one, and that it was unlikely that the language of the proviso to s. 23 (2) was intended to disturb principles long recognized and well established [39] . They agreed with Windeyer J. that the words of par. (c) form a single composite description of an act which is provoked, and went on to say [40] :

Something which is done, "suddenly" and "in the heat of passion" caused by provocation is, as it were, something done automatically or impulsively and at a time when there is a temporary suspension of the reason: an act so done is not controlled or planned or preconceived or deliberate. It would seem, therefore, that the concluding words in par. (c) were designed to cover an intent which in whole or in part does not arise from the passion and which is unrelated to the provocation and is not caused by it. The learned trial judge in the present case summed up in accordance with these views. He was right in doing so, for in my respectful opinion the reasons which their Lordships gave for reaching their conclusion on this point are convincing and the conclusion itself is correct. Even if the jury considered that the appellants intended to kill the deceased, the issue of provocation was still open if the intention arose "from sudden passion involving loss of self-control by reason of provocation" (Attorney-General (Ceylon) v. Perera [41] ). 1. (1964) 111 C.L.R., at p. 681; [1964] A.C., at p. 1391. 2. (1964) 111 C.L.R., at p. 678; [1964] A.C., at p. 1388. 3. (1964) 111 C.L.R., at pp. 680-681; [1964] A.C., at pp. 1390, 1391. 4. (1964) 111 C.L.R., at pp. 680-681; [1964] A.C., at p. 1391. 5. [1953] A.C. 200, at p. 206.

The other question discussed obiter by both courts in Parker v. The Queen [42] was whether s. 23 (2) casts an onus of proof upon the accused. Taylor, Menzies and Owen JJ. considered that the effect of s. 23 (2) is that an accused person cannot succeed on the issue of provocation unless the jury is satisfied affirmatively of the matters specified in the proviso, but they did not expressly say whether or not they considered that any onus of proof on this issue remained on the prosecution [43] . Windeyer J. recognized that the question was doubtful but thought that s. 23 did not affect the common law rules as to the onus of proof [44] . Dixon C.J. was apparently also of that opinion [45] . In the Judicial Committee their Lordships agreed with the majority of this Court that s. 23 casts some onus on the accused. Lord Morris of Borth-y-Gest said [1] :

It seems to their Lordships that the duty which lies upon the prosecution to prove the guilt of an accused person beyond reasonable doubt is not affected save to the extent that s. 23 lays it down that there can only be a reduction from murder to manslaughter by reason of provocation if the jury positively find that the requirements of pars (a) and (b) and (c) of the proviso are satisfied. The duty and onus of the prosecution to negative provocation is to that extent lightened for the reason that provocation may only be found if the evidence in a case entitles a jury to find that the requirements of the proviso are satisfied. To that extent there is in such cases an onus cast upon the accused but such onus does not require proof beyond reasonable doubt but is satisfied if on a consideration of the evidence and if on the balance of probabilities the jury consider that the requirements of the proviso are satisfied. In such cases and if the prosecution have not otherwise negatived the possibility of provocation then the jury may reduce a crime from murder to manslaughter. 1. (1963) 111 C.L.R. 610. 2. (1963) 111 C.L.R., at pp. 638, 645. 3. (1963) 111 C.L.R., at pp. 661-662. 4. (1963) 111 C.L.R., at p. 632. 5. (1964) 111 C.L.R., at p. 682; [1964] A.C., at p. 1392.

The learned judges in New South Wales have very properly regarded themselves as bound to apply this dictum but they have differed as to its meaning. Clearly it places an onus on the accused to prove on the balance of probabilities the matters mentioned in pars (a), (b) and (c) of the proviso to s. 23 (2). On one view the Judicial Committee have said that the onus on the accused extends no further, so that the burden of disproving any other matters relevant to provocation remains on the prosecution. On this view, if there is any material upon which a reasonable jury could find that there was a provocative incident, the onus would rest upon the prosecution to prove beyond reasonable doubt that such incident had not occurred. Further, if it is an element of provocation that the retaliation was proportionate to the provocation, the onus would rest on the prosecution to prove that the retaliation was disproportionate. These in substance were the views taken by Moffitt A.J.A., as he then was, in Reg. v. Guerin [2] , by Isaacs J. in Reg. v. Cox [3] , and by Nagle J., the dissentient member of the Court of Criminal Appeal, in the present case [4] . The other view, which was taken by Street C.J. and McClemens C.J. at C.L. in Reg. v. Cox [5] , and by the majority of the Court of Criminal Appeal (Street C.J. and Lee J.) in the present case [6] , is that the accused bears the onus of establishing the acts, words or conduct alleged to have been provocative as well as the presence of the three matters specified in the proviso to s. 23 (2). If this view is correct it would no doubt follow that if it is an element of provocation that the retaliation was proportionate to the provocation the accused bears the onus of showing that the retaliation was proportionate.

1. [1967] 1 N.S.W.R. 255, at p. 269. 2. [1974] 2 N.S.W.L.R. 529, at pp. 534-535. 3. [1975] 2 N.S.W.L.R., at pp. 540-544. 4. [1974] 2 N.S.W.L.R., at pp. 531-533. 5. [1975] 2 N.S.W.L.R., at pp. 533, 553-562.

I am unable to accept the view that the proviso does no more than lay down the conditions necessary for reducing murder to manslaughter by reason of provocation and does not affect the onus of proof. It is true that there is much force in the argument that the only alteration of the common law as to provocation intended to be made by the section was in relation to provocative words and gestures, that the proviso to s. 23 (2) affirmed the common law and that when s. 23 (and its predecessor s. 370) were enacted it was not intended to alter the rules as to the onus of proof of provocation, which in 1883, and still in 1900, was thought to rest upon the accused, since Woolmington's Case [7] had not then been decided. However, even if the framers of the section intended to do no more than maintain the position then thought to exist at common law, the enactment must be given its proper effect. The opening words of the proviso to s. 23 (2) are plain and unambiguous. They preclude the jury from extenuating a crime from murder to manslaughter unless the jury find the matters mentioned. Upon the ordinary and natural construction of those words it would not be enough that the jury entertained a doubt as to whether or not the specified matters were established. This can only mean that before the crime can be reduced to manslaughter the jury must be satisfied of those matters - in other words, an onus is placed on the accused to satisfy the jury of them. Of course the onus may be discharged on the balance of probabilities.

The two possible views of the section are that it affects the onus but only to the extent of requiring the accused to prove the matters expressly mentioned, and that it places the onus of proof of provocation entirely on the accused. It seems to me that Lord Morris of Borth-y-Gest in the passage cited did intend to indicate that some onus of disproving provocation remained on the prosecution. He did not, however, indicate what matters the prosecution is required to negative. Certainly he did not suggest that s. 23 (2) leaves resting on the prosecution the onus of proving that the provocative acts or words alleged did not occur, and it does not seem to me correct to construe s. 23 (2) as having that effect. In my opinion a jury could not find "that such provocation was not intentionally caused by any word or act on the part of the accused" unless they first found that there had been "provocation" in the sense of a provocative incident. Similarly, the jury could not find that "it", that is the provocative incident, did in fact deprive the accused of the power of self-control unless they found that the provocative incident had occurred. They could not find that the act causing death was done "in the heat of passion caused by such provocation" if they were not satisfied that there had been a provocative incident. It therefore seems to me that upon its proper construction the proviso places upon the accused the burden of proving the occurrence of the provocative incident as part of the proof of the matters specified in pars (a), (b) and (c).

The question that remains is whether there are any elements of provocation which are not covered by the words of the proviso and which need not be proved by the accused but must be disproved by the prosecution if the circumstances raise a case of provocation fit for consideration by a jury. In particular, is it an element of provocation that the retaliation should be proportionate to the provocative incident and, if so, does the onus of disproving that the retaliation was proportionate lie on the Crown? In Mancini v. Director of Public Prosecutions, Viscount Simon L.C. said [8] :

The test to be applied is that of the effect of the provocation on a reasonable man. In applying the test, it is of particular importance (a) to consider whether a sufficient interval has elapsed since the provocation to allow a reasonable man time to cool, and (b) to take into account the instrument with which the homicide was effected, for to retort, in the heat of passion induced by provocation, by a simple blow, is a very different thing from making use of a deadly instrument like a concealed dagger. In short, the mode of resentment must bear a reasonable relationship to the provocation if the offence is to be reduced to manslaughter. As a proposition of law the concluding sentence in this passage has been subjected to criticism by textwriters, who have said that if taken literally it would mean that only a murderous attack upon the man provoked would justify him using in return force intended to kill and would leave little or no scope for the operation of the doctrine of provocation: see Russell on Crime, 12th ed. (1964), p. 548 et seq., and Kenny, Outlines of Criminal Law, 19th ed. (1966), pp. 173-175. However, the principle thus stated by Viscount Simon had "an early and respectable origin", as Windeyer J. said in Parker v. The Queen [9] . It appears as early as 1762 when, in Foster's Crown Law, at p. 292, it was said that "the mode of resentment must be in a reasonable proportion to the provocation to render the offence manslaughter" (see Reg. v. Welsh [10] , where the passage is cited). Foster's words were repeated in succeeding editions of Archbold's Pleading and Evidence in Criminal Cases, including that current when the Criminal Law Amendment Act, 1883 N.S.W. was passed - see the nineteenth edition of Archbold (1878), p. 687. Since Mancini v. Director of Public Prosecutions [8] it has been held again and again (even in jurisdictions in which the question of provocation is dealt with by a statute which does not expressly refer to the question of proportion) that it is proper to direct a jury when considering an issue of provocation to have regard to the question whether the mode of retaliation bore a reasonable relation to the provocation: see Attorney-General (Ceylon) v. Perera [11] ; Taylor v. The King [12] ; and Reg. v. Noel [13] ; see also Reg. v. Callope [14] , decided on the Criminal Code Q. which has been held to render the rules of the common law as to provocation applicable to a charge of murder. It has further been held that where the evidence is such that no reasonable jury could find that the force used by the accused person was proportionate to the provocation offered, a trial judge is not in error in refusing to leave an issue of provocation to the jury (see, e.g. Reg. v. Enright [15] ; Reg. v. Rose [16] ; and, in this Court, Da Costa v. The Queen [17] ). In New South Wales it has been consistently accepted that the same position obtains under s. 23 of the Crimes Act: Reg. v. Tsigos [18] ; Reg. v. Stone [19] ; Reg. v. Guerin [20] ; Reg. v. Vassiliev [21] ; and Reg. v. Minehan [22] . 1. [1942] A.C. 1, at p. 9. 2. (1963) 111 C.L.R., at p. 658. 3. (1869) 11 Cox C.C. 336, at p. 337 n. (b). 4. [1942] A.C. 1, at p. 9. 5. [1953] A.C. 200. 6. [1948] 1 D.L.R. 545, at pp. 551, 559-560. 7. [1960] N.Z.L.R. 212, at pp. 216-219. 8. [1965] Qd. R. 456, at pp. 464-465. 9. [1961] V.R. 663, at pp. 669-670. 10. [1967] Qd. R. 186. 11. (1968) 118 C.L.R. 186. 12. [1964-5] N.S.W.R. 1607, at pp. 1612-1613, 1623-1625, 1634. 13. [1965] N.S.W.R. 898, at p. 909. 14. [1967] 1 N.S.W.R., at p. 260. 15. (1967) 68 S.R. (N.S.W.) 74, at pp. 84-86. 16. [1973] 1 N.S.W.L.R. 659, at pp. 665-668, 681-684.

Murder can only be reduced to manslaughter on the ground of provocation if the provocation in fact had the effect of depriving the accused of the power of self-control. 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, 19th ed. (1966), p. 173, "Human frailty must be measured by the general average standard of ordinary men". An ordinary man in a civilized 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. It is still true to say, as was said in East's Pleas of the Crown (1803), vol. 1, p. 238, in the passage quoted by Dixon C.J. in Parker v. The Queen [23] : "in those cases where the mercy of the law interposes in pity to human frailty, it will not try the culprit by the rigid rule of justice, and examine with the most scrupulous nicety whether he cut off the exact pound of flesh".

The appellants, in their submission, accept that the common law is as I have stated it. However, the foundation of their argument is the proposition that the common law treated the proportionate nature of the retaliation as an element of provocation separate and independent from those restated in the proviso to s. 23 (2). If this is so then, it is said, there is an element of provocation in relation to which no onus has been placed on the accused by s. 23 (2), and it was wrong to direct the jury that they had to be satisfied that the retaliation was commensurate with the provocation; it would be enough if they had a reasonable doubt on that aspect of the case. Alternatively, it was submitted that s. 23 was intended to displace the common law completely, and left no place for any requirement that fell outside the words of the proviso.

No doubt support can be found in the cases for the view that the proportionate nature of the retaliation is an element in itself, additional to the requirement that the provocative act in fact caused the accused, and would have caused an ordinary person, to lose his self-control. Some remarks of Owen J. in Da Costa v. The Queen [24] support that view, as Lee J. rightly pointed out in Reg. v. Minehan [25] . However, it seems to me impossible to agree that the elements that go to make up provocation are quite separate and distinct. At the least it seems to be clear that the question whether the acts of the accused bore a reasonable relation to the provocation is a matter to be considered in applying the test of the effect of the provocation on a reasonable man, and this it appears is what Viscount Simon meant in the passage quoted from Mancini v. Director of Public Prosecutions [26] . In Phillips v. The Queen [27] , Lord Diplock said that the remark that "the mode of resentment must bear a reasonable relationship to the provocation" 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 in Reg. v. Brown [28] the view was expressed (independently of the effect of the Homicide Act, 1957 U.K.) that Viscount Simon's remark was intended not as a statement of legal principle, but as "a guide to one of the considerations which a jury has to take into account on the issue of provocation, namely, whether a reasonable man would have lost his self-control and acted as the accused did". In my respectful opinion it is also a matter to be considered in relation to the questions whether the accused had in fact been deprived by the provocation of the power of self-control, and whether he acted as he did in the heat of passion caused by the provocation. It is true that in Lee Chun-Chuen v. The Queen [29] Lord Devlin referred to "three elements", one of which was "the retaliation proportionate to the provocation", but he immediately added [30] : "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 true position at common law was that the relationship of the force to the provocation was one of the matters - in some cases it might be the most important matter - to consider on the issue of provocation, not a disparate question to be considered in isolation. There is nothing in s. 23 that would exclude this question of relationship from consideration in relation to the matters arising under pars (b) and (c) of the proviso, to which it is naturally relevant. In New South Wales it is therefore proper, and indeed necessary, for a jury in deciding the issues arising under pars (b) and (c) of the proviso to consider whether the mode of retaliation was disproportionate to the provocation offered. I agree with the remarks of Taylor and Owen JJ. in Parker v. The Queen [31] :

But, surely, when the proviso requires that the provocation must be such 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, it is speaking of loss of the power of self-control in relation to the act or acts causing death. In other words, the question is not whether there was some loss of the power of self-control, but whether the loss of self-control was of such extent and degree as to provide an explanation for or, to constitute, in some measure, an excuse for the acts causing death. And, of course, the provocation must have been of such a character as was calculated to deprive an ordinary person of the power of self-control to that extent. It does not seem to me that anything that was said in the judgment of the Judicial Committee in Parker v. The Queen [32] is inconsistent with this view. 1. (1968) 118 C.L.R., at p. 215. 2. [1973] 1 N.S.W.L.R., at p. 683. 3. [1942] A.C., at p. 9. 4. [1969] 2 A.C. 130, at p. 137. 5. [1972] 2 Q.B. 229, at p. 232. 6. [1963] A.C., at p. 231. 7. [1963] A.C., at pp. 231-232. 8. (1963) 111 C.L.R., at p. 641. 9. (1964) 111 C.L.R. 665; [1964] A.C. 1369.

For these reasons I consider it right to say that in New South Wales, in considering whether provocation has been made out, the jury should consider whether the mode of resentment bore any reasonable relationship to the provocation that was given. In New South Wales at least, the fact that the retaliation was proportionate is not a separate element which the jury is required to consider in addition to the other matters mentioned in the proviso; rather, the question whether the retaliation was proportionate has a bearing on whether those matters have been established. On this view the accused, in endeavouring to discharge the onus cast upon him by the proviso, must satisfy the jury that the retaliation bore a reasonable relationship to the provocation, in so far as that question is in issue. In my opinion the effect of s. 23 is to remove entirely from the prosecution the onus of proving that the killing was unprovoked - the onus of establishing provocation is placed entirely on the accused, for nothing relevant to that issue falls outside the proviso. If Lord Morris of Borth-y-Gest in Parker v. The Queen [33] intended to suggest a different view I am, with all respect, unable to agree with it. We are not bound by an expression of opinion in the Judicial Committee which is merely obiter, although we should of course give the greatest weight to any considered dictum of the Board. After the most anxious consideration, I have reached the conclusion that s. 23, in placing upon the accused the onus of proving the matters mentioned in pars (a), (b) and (c) of the proviso, has left nothing in relation to provocation which the prosecution is required to disprove. The onus of proving the guilt of the accused, of course, remains on the prosecution but if the question of provocation is raised by the evidence the onus of proving that the killing was provoked is cast by s. 23 upon the accused.

1. (1964) 111 C.L.R., at p. 682; [1964] A.C., at p. 1392.

It follows from what I have said that the summing up in the present case was correct in casting the whole onus of proving provocation on to the appellants and in raising, for the consideration of the jury, the question of the relationship of the acts done to the provocation offered, but was erroneous in the way in which it dealt with the latter question. To say this is not to criticize the learned trial judge, for what he said was in accordance with much authority. In my opinion it was misleading to repeat the statement that fists might be answered with fists, but not with a deadly weapon, for that statement has never been correct. It was erroneous to instruct the jury that the fact that the retaliation was proportionate to the provocation was a separate element, or to tell the jury that they were required to be satisfied that the retaliation was commensurate with the provocation that was offered; they should instead have been told that the question whether the appellants' acts were disproportionate to the provocation was a matter for them to consider in deciding whether the provocation was reasonably calculated to deprive an ordinary person of the power of self-control and to cause him to act as the appellants did, and in deciding whether in fact it did deprive the appellants of the power of self-control and whether the appellants did the acts which caused the death in the heat of passion caused by the provocation. This misdirection may have determined the result, for the jury may well have concluded that the violence used by the appellants was so disproportionate to the provocation offered that they were bound to return a verdict of murder. It would therefore be unsafe to allow the convictions to stand. Since on the evidence a jury, properly directed, could have returned a verdict of murder, there should be a new trial on a charge of murder if the Crown requires it. It is, however, clear that the appellants are not entitled to be completely acquitted, and justice might well be done, and the public interest best served, by setting aside the convictions for murder and entering convictions for manslaughter. That is the course that I would take if the Crown does not wish to insist on a new trial.

I have had the advantage of reading the reasons for judgment prepared by Gibbs J. with which I agree.

Section 23 of the Crimes Act, 1900 N.S.W. provides as follows:

(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.

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.

The question which arises in the present appeal is the effect, if any, which s. 23 (2) has upon the onus of proof of provocation.

Since Woolmington v. Director of Public Prosecutions [34] it has been accepted that under the common law the onus of proving beyond reasonable doubt that the act causing death was not provoked lies upon the Crown. It may be accepted that at the time of the passing of s. 23 (2) the view was current that at common law all homicide is presumed to be malicious until the contrary appears and that it is incumbent upon the prisoner to make out such circumstances to the satisfaction of the court and jury unless they arise out of the evidence produced against him. It is also clear that although the onus of proof lies wholly upon the Crown, an issue of provocation should not be left to the jury unless there is evidence in the case, whether it emerges in the Crown case or in the defence case, which is capable of amounting to provocation, of satisfying the elements of provocation established at common law and largely, if not wholly, reproduced in pars (a), (b) and (c) of s. 23 (2). This has been described by Lord Devlin in extrajudicial writing as an anomaly.

There have been great differences of opinion upon the question whether the effect of s. 23 (2) is to alter the onus of proof imposed on the Crown by the principles of the common law. In Parker v. The Queen [35] Dixon C.J. indicated his view that the onus of proof was not altered [36] . Windeyer J. [37] gives his reasons for reaching the same view. However, the other members of the Court, Taylor and Owen JJ. in a joint judgment [38] and Menzies J. in a separate judgment [39] , in the course of concluding that there was no case of provocation fit to be left to the jury expressed the view that the onus of proof of provocation by virtue of s. 23 (2) lay upon the accused. Special leave to appeal was therefore refused by majority.

1. (1963) 111 C.L.R. 610. 2. (1963) 111 C.L.R., at p. 632. 3. (1963) 111 C.L.R., at pp. 661-662. 4. (1963) 111 C.L.R., at p. 638. 5. (1963) 111 C.L.R., at p. 645.

On the petition to Her Majesty in Council in the same matter special leave to appeal was granted and the appeal from the Supreme Court of New South Wales was allowed upon the ground that there was an issue of provocation fit to be submitted to the jury (Parker v. The Queen [40] ). Their Lordships concluded their advice by consideration of the question where the onus of proof lay.

It remains to consider what effect the proviso has in New South Wales upon the question of the burden of proof in a trial for murder where the issue of provocation arises. It seems to their Lordships that the duty which lies upon the prosecution to prove the guilt of an accused person beyond reasonable doubt is not affected save to the extent that s. 23 lays it down that there can only be a reduction from murder to manslaughter by reason of provocation if the jury positively find that the requirements of pars (a) and (b) and (c) of the proviso are satisfied. The duty and onus of the prosecution to negative provocation is to that extent lightened for the reason that provocation may only be found if the evidence in a case entitles a jury to find that the requirements of the proviso are satisfied. To that extent there is in such cases an onus cast upon the accused but such onus does not require proof beyond reasonable doubt but is satisfied if on a consideration of the evidence and if on the balance of probabilities the jury consider that the requirements of the proviso are satisfied. In such cases and if the prosecution have not otherwise negatived the possibility of provocation then the jury may reduce a crime from murder to manslaughter. [41] 1. (1964) 111 C.L.R., at p. 682; [1964] A.C., at p. 1392.

The question of the appropriate direction on provocation arose in Reg. v. Cox [42] where it was held by Street C.J. and McClemens C.J. at C.L. that s. 23 (2) "operates to relieve the Crown from all concern with the act, words or conduct possibly amounting to provocation and with the three ingredients in the proviso to that sub-section" (per Street C.J. [43] ). In other words it was held that no onus lay upon the Crown to disprove beyond reasonable doubt the act, words or conduct which might be relied on as provocation. Isaacs J. held that there still remained an onus on the Crown to negative the provocative act, words or conduct and to prove in an appropriate case that the retaliatory acts of the accused were disproportionate to any proved or admitted provocative act of the deceased but that otherwise in accordance with the statement of their Lordships in Parker v. The Queen [40] the onus lay upon the accused [44] .

1. [1974] 2 N.S.W.L.R. 529. 2. [1974] 2 N.S.W.L.R., at p. 532. 3. (1964) 111 C.L.R. 665; [1964] A.C. 1369. 4. [1974] 2 N.S.W.L.R., at pp. 534-535.

In the present case the Court of Criminal Appeal in New South Wales by majority adhered to the views expressed by the majority in Reg. v. Cox [42] . Nagle J. dissented, concluding that an onus still remained upon the Crown in respect of the matters adverted to by Isaacs J. in Reg. v. Cox.

This Court granted special leave to appeal and on hearing of the appeal it has been submitted that notwithstanding s. 23 (2) the whole onus of negativing provocation still lies upon the Crown provided that there was some evidence of provocation fit to be submitted to the jury within the principles of the common law as they are reproduced in pars (a), (b) and (c) of s. 23 (2). Secondly, it has been submitted that if this be not correct, there is still that onus on the Crown expressed by the dissenting judges in Reg. v. Cox and the present case.

The determination of the questions which arise are complicated by two factors. First, there is the recognized "anomaly" in the common law situation. Secondly, there is the fact that the law on onus in respect of provocation was not correctly understood at the time when s. 23 (2) was enacted.

If it were not for certain words and sentences in the passage of their Lordships in Parker v. The Queen [45] , to which I have referred, it might be thought that their Lordships were referring to the anomaly which would exist both at common law and under the statutory provision even if in the latter case the general onus of negativing provocation still remained upon the Crown. However, their Lordships referred to the jury "positively" finding that the requirements of pars (a), (b) and (c) of the proviso are satisfied and later in the passage make it clear that there is an onus on the accused which is satisfied if on a consideration of the evidence and if on the balance of probabilities the jury consider that the requirements of the proviso are satisfied. These words are clearly intended to place an onus in the strict sense on the accused, an intention not apparent from the preceding sentence: "The duty and onus of the prosecution to negative provocation is to that extent lightened for the reason that provocation may only be found if the evidence in a case entitles a jury to find that the requirements of the proviso are satisfied." [45] The latter words would be appropriate to an intended reference to the "anomaly".

1. (1964) 111 C.L.R., at p. 682; [1964] A.C., at, p. 1392. 2. (1964) 111 C.L.R., at p. 682; [1964] A.C., at, p. 1392.

It is clear, however, that their Lordships firmly regarded some onus as still lying upon the Crown and within the terms of their Lordships' statement it was, in my view, correct to recognize the omission which must have been deliberate of any reference to the proof of the act of provocation. Whether or not the omission of any reference to proof that the retaliatory act was disproportionate was deliberate it is more difficult to say.

On the other hand it must be recognized that a situation where proof of the act relied on as provocation lies upon the Crown but proof that that act satisfies the conditions laid down in pars (a), (b) and (c) lies upon the accused introduces a great complexity into the law, and it is this complexity and the inconvenience arising therefrom which has led the majority in the Court of Criminal Appeal to the view that the jury should be directed that the onus of proof of the act of provocation as well as the matters in pars (a), (b) and (c) lay upon the accused.

I am inclined to think that what was said by their Lordships was obiter in the strict sense, the subject matter of the application before them being whether or not in the particular facts of that case there was any evidence of provocation fit to be submitted to the jury. Whether or not that be correct, the uncertainties which have arisen on the precise application of their Lordships' words and the fact that the Court of Criminal Appeal has felt it necessary to depart from their Lordships' view that some onus still remains upon the Crown make it necessary for this Court, particularly in view of the division of opinion in Parker v. The Queen [46] when it was before this Court, to determine where under the statute the onus lies.

I agree with Windeyer J. when he says in Parker v. The Queen [47] that the answer is not easy. On consideration of the matter I find myself convinced by the reasons expressed by Windeyer J. for his conclusion that s. 23 (2) was not intended to alter, and did not alter, the onus of proof. I would respectfully adopt all that he said and I do not wish to add a great deal thereto.

It is a cardinal principle of the interpretation of statutes that where there is any doubt what the legislature intended, that is to say, any ambiguity in the language used, it is presumed that the legislature does not intend to overturn a principle deeply seated in the common law and that if such a principle "is to be overturned it must be overturned by a clear, definite, and positive enactment, not by an ambiguous one " Leach v. The King [48] . These are the words of Lord Atkinson [49] . It is said for the Crown, however, that this principle is not applicable where there are strong grounds for assuming that at the time of the enactment of s. 23 (2) and of the earlier section which it replaced the legislature did not know the deep-seated principle of the common law, and that the true principle was commonly misunderstood. I do not think that this submission helps the respondent at all. It has been said that "when the existing law is shewn to be different from that which the Legislature supposed it to be, the implication arising from the Statute cannot operate as a negation of its existence": Mollwo, March, & Co. v. Court of Wards [50] . I would apply these words, in conjunction with the cardinal principle to which I have earlier referred, in order to state that particularly when the existing law in respect of a deeply seated principle of the common law is shown to be different from that which the legislature assumed it to be, and even though words are for that reason used which might be construed as altering or negating that principle, an intention to alter or negate the principle of the common law must be the express or necessary intendment of the words used.

1. [1912] A.C. 305. 2. [1912] A.C., at p. 311. 3. (1872) L.R. 4 P.C. 419, at p. 437.

Is it the necessary intendment of the words used in s. 23 (2) to reverse the criminal onus of proof? An affirmative answer depends wholly upon the presence in the proviso of the words "the jury find That " If these words did not appear, I do not think that there could be any argument but that the proviso was expressing principles of substantive law only. I turn then to the context in which these words appear. Section 23 (2) commences with the clause "Where, on any such trial, it appears that the act or omission causing death does not amount to murder " If and only if that condition is satisfied "the jury may acquit the accused of murder". To whom must it appear that the act or omission causing death does not amount to murder? Clearly the answer is - to the jury. But this does not mean that the accused must satisfy the jury that the act or omission causing death does not amount to murder. It may be that the legislature misunderstood the law on the onus of proof in a criminal case but the word "appears" beyond any doubt refers to the state of mind of the jury when, properly applying the law on the onus of proof, the jury finds that the accused is not guilty of murder. If the legislature had intended otherwise it would need to have used some adverb before the word "appears", the most appropriate adverb being "positively". Then the proviso deals with the application of s. 23 (2) in the particular case of provocation. It commences by providing that "in no case shall the crime be reduced from murder to manslaughter, by reason of provocation, unless " The crime appears to mean the act or omission causing death which amounts at least to manslaughter. But such a crime is not on a correct understanding of the law "reduced" from murder to manslaughter. It is made to appear to the jury that the act or omission causing death does not amount to murder but does amount to manslaughter. Thus the concept of s. 23 (2) in its apparent, but not real, reversal of the onus of proof is carried forward into the proviso, which continues with the words "unless the jury find " Does this mean "positively find" or "find according to the principles governing the onus of proof generally in criminal cases"? Here is the essential ambiguity in the language of the sub-section. It is the reason why their Lordships in the passage in Parker v. The Queen [51] found it necessary to use the word "positively" when expressing the view which they did on the onus of proof, that is to say, when they were particularly directing their attention to the onus of proof.

1. (1964) 111 C.L.R., at p. 682; [1964] A.C., at p. 1392.

It is notoriously difficult to express the substantive principles of the criminal law without using expressions which can be misunderstood to be a reversal of the criminal onus of proof. It would be a mistaken expression of the substantive principles relating to provocation to say that the jury do not have to find the provocation and the ancillary circumstances. That this is so is borne out by the fact that there must be evidence which is in law sufficient to enable such a finding to be made. But such an expression of the substantive principles says nothing on the onus of proof. It is my view, unaided by the principle of interpretation which I have stated but nevertheless greatly reinforced thereby, that s. 23 (2) likewise says nothing on the onus of proof.

Another way of expressing the matter is that, just as there is no verdict of "not proven" under the common law, so no fact relevant to the determination of guilt or innocence remains, at the end of a criminal trial under the common law, in the state "not proven". A fact which must be proved by the Crown beyond reasonable doubt, if it is not so proved, is not a fact for the purpose of determining guilt or innocence. A fact which the Crown must prove beyond reasonable doubt not to have existed, if it is not so proved not to have existed, does exist for the purpose of determining guilt or innocence. The jury must find accordingly in the ultimate determination of the question entrusted to them. In that way, when the criminal onus is borne in mind, it is not misuse of language to say as the legislature has done, that a jury must find provocation and at the same time to leave untouched the deeply seated principle of the common law that the guilt of an accused person must be proved by the Crown beyond reasonable doubt. I am further reinforced in my view by decisions in respect of other statutory provisions in respect of the elements of provocation. I refer particularly to Kwaku Mensah v. The King [52] , where the words of the Criminal Code of the Gold Coast s. 233 were that intentional homicide should be manslaughter only if it was "proved on the accused's behalf " But, as appears from pp. 92-94 of the report the onus remained upon the Crown. See also The King v. Kahu [53] on the New Zealand Code and Packett v. The King, per Dixon J. [54] on the Tasmanian Code.

1. [1946] A.C. 83, at p. 93. 2. [1947] N.Z.L.R. 368. 3. (1937) 58 C.L.R. 190, at p. 212.

As to the element in provocation that the mode of retaliation must be proportionate, I agree that it has its place in the law of New South Wales even though it is not expressly mentioned in s. 23 (2). I agree with the reasons for this view which have been expressed by Gibbs J.

The question here concerns the onus of proof in provocation and the proportionate response to provocative conduct and involves the interpretation of a difficult statutory provision, s. 23 of the Crimes Act, 1900 N.S.W.. The ground of appeal is that the trial miscarried because the issue of provocation was not properly put to the jury. Section 23 has been subjected to much judicial examination, but basic questions of its application have not been settled.

Section 23. The section first became part of the law of New South Wales as s. 370 of the Criminal Law Amendment Act, 1883 which was mainly the work of Sir Alfred Stephen, former Chief Justice of New South Wales, who said of the legislation on 8th November 1882:

There is not a single sentence which contains repetition or is difficult to comprehend by an ordinary mind, unless that mind sees objects only through the medium of some extraordinary crochet.

Section 370 was carried into the Crimes Act, 1900. Stephen C.J.'s statement was not confirmed by the judicial history of the section which records extraordinary differences of judicial opinion, persisting even after its consideration by the High Court and the Privy Council.

Most of the difficulty has arisen from the proviso in s. 23 (2) and centres on whether the proviso places on the accused the onus of proof of the matters included in pars (a), (b) and (c) and whether these paragraphs are exhaustive. Much of the debate has hinged on whether s. 23 (2) is to be read literally. If it is read literally, its introductory words are perplexing. They suggest that establishment of the elements of provocation does not automatically operate to reduce murder to manslaughter: "the jury may acquit the accused of murder, and find him guilty of manslaughter". This does not fit with the earlier words: "Where it appears that the act or omission causing death does not amount to murder, but does amount to manslaughter". If the word "may" is intended to give the jury a discretion, the section is silent on what factors are to be taken into account.

Onus of Proof. In 1883 and in 1900, the onus of proof of provocation at common law was generally thought to be on the accused. The respondent contended that s. 23 preserves this position and that the accused bears the onus of proving a defence of provocation.

In Parker [1] , Dixon C.J. and Windeyer J. were in the minority in considering that s. 23 does not alter the common law onus on the prosecution. The Judicial Committee of the Privy Council [2] stated that s. 23 altered the common law only to the extent of requiring the accused to prove, on a balance of probabilities, the matters mentioned in pars (a), (b) and (c) of s. 23 (2).

1. (1963) 111 C.L.R. 610. 2. (1964) 111 C.L.R. 665; [1964] A.C. 1369.

Section 23 can be read so that the onus is on the prosecution to negative provocation. I agree with Windeyer J. that the section is not "too stubborn and intractable to yield" such a result [3] .

Whatever the common or decisional law view of the onus of proof in 1883 or 1900, the section should be taken as constantly speaking in the present (see Courtenay Ilbert, Legislative Methods and Forms, (1901); Craies on Statute Law, 5th ed. (1952), p. 29; Halsbury's Laws of England, 2nd ed., vol. 27, p. 572; The Commonwealth v. District Court of the Metropolitan District [4] ). In my opinion, the section should not be read as incorporating a pre- or rather non-Woolmington approach to the onus of proof in provocation. The statement in Woolmington that [5] :

throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt subject to the defence of insanity and subject also to any statutory exception has been generally accepted. 1. (1954) 90 C.L.R. 13, at p. 21. 2. [1935] A.C. 462, at p. 481.

Viscount Simon (with the concurrence of the other judges) said of Woolmington [6] :

The only exceptions arise in the defence of insanity and in offences where onus of proof is specially dealt with by statute (my emphasis). (Mancini [7] ). It is not hard to take the view that onus of proof is not "specially dealt with" by s. 23, as there is no reference to it in the section. If a formula such as "expressly or by necessary implication" is used as a test, s. 23 does not, in my opinion, specially deal with the onus of proof. Section 23 should be construed as operating within the general fabric of the fundamental principles (which are reshaped from time to time) of the decisional law applying to crime. 1. [1935] A.C. 462. 2. [1942] A.C. 1, at p. 11.

It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness. (Murugiah v. Jainudeen [8] ). See also Cox v. Hakes [9] . For examples of this approach in provocation, see Kwaku Mensah [10] and Packett [11] . 1. [1955] A.C. 145, at p. 153. 2. (1890) 15 A.C. 506. 3. [1946] A.C. 83. 4. (1937) 58 C.L.R. 190.

This approach attributes to the Parliament of New South Wales an intention which would conform not only generally with the fabric of the criminal law and its onus of proof, but also particularly with the statutory and decisional law approach to provocation taken in other Australian states and other countries. The contrary interpretation would make the section stand out as a "sore thumb" in the criminal law.

So, s. 23 (2) should be construed that the prosecution will succeed in negativing provocation if it negatives any of the elements of provocation described in pars (a), (b) and (c). On the issues whether (a), (b) and (c) are to be found, the prosecution bears the onus of proof beyond reasonable doubt. If the prosecution fails to negative (a), (b) and (c), then the jury should find (a), (b) and (c) in favour of the accused.

If this interpretation is not accepted, I would agree with Windeyer J.'s suggestion that the section be "recast in a form in harmony with the modern views of responsibility for homicide that prevail elsewhere" [12] .

Reasonable or Proportional Retaliation. The trial judge directed the jury that they should reduce from murder to manslaughter only if the accused satisfied them that (amongst other things) the retaliation to the provocation was proportional or commensurate to the provocation (that it was a reasonable retaliation).

There is no reference to a requirement of reasonable or proportional retaliation in the proviso to s. 23 (2), and there is no warrant for putting such a gloss on any of pars (a), (b) and (c) which would add a factor unfavourable to an accused. No doubt the response of the accused to the provocation may be relevant in finding whether the provocation "did in fact deprive the accused of the power of self-control" (in (b)) and whether the act "was done suddenly, in the heat of passion caused by such provocation, without intent to take life" (in (c)). I agree that the words "intent to take life" refer to an intent not resulting from the provocation. The importation of "proportionality of response" does not seem relevant in finding whether the provocation "was reasonably calculated to deprive an ordinary person of the power of self-control" in (b). It seems even more inappropriate when the criterion in (b) is not loss of self-control, but deprivation of "the power of self-control" which does not convey any notion that degrees of loss of self-control are to be considered.

Is proportionality of response required apart from the proviso? There is a pronounced tendency in this (as in some other branches of the law) for judges' opinions on facts and inferences from facts to be treated as propositions of law. Contrary to some opinions, it would be open to a jury to find that a disproportionate response was strong evidence of loss of self-control, and that a proportionate response tended to disprove loss of self-control.

Although "proportionality of response" is an English judicial creation (mentioned in early texts) with no statutory indorsement (in England or New South Wales), after the United Kingdom Homicide Act 1957, it was no longer treated as a rule. It was said in Phillips that [13] :

Since the passing of the legislation it may be prudent to avoid the use of the precise words of Viscount Simon in Mancini v. Director of Public Prosecutions [14] "the mode of resentment must bear a reasonable relationship to the provocation" unless they are used in a context which makes it clear to the jury that this is not a rule of law which they are bound to follow, but merely a consideration which may or may not commend itself to them. (See also [1974] Criminal Law Review 396; Brown [15] .) 1. [1969] 2 A.C. 130, at p. 138. 2. [1942] A.C. 1. 3. (1972) 2 Q.B. 229.

I agree with Professor Brett's view that the reasonable relationship rules assume a particular view of human behaviour ("The Physiology of Provocation", [1970] Criminal Law Review 634). They treat a human being as basically a rational being who, if he does respond to a provocative act, can control the duration of his anger and the extent of his response. As Brett said, it is important to realize that the bodily system in a state of anger functions in a way quite different from that supposed by some of the judges. Responses are not nicely proportioned to the intensity of the precipitating anger or fear. Although there are degrees of loss of self-control (as Lord Diplock emphasized in Phillips [16] ), the defence of provocation arises only where self-control has been so far lost that the accused killed under provocation. Leaving aside all considerations of self-defence, how can killing another with criminal intent be reasonable retaliation? The law of provocation is not concerned with reasonable retaliation, but with unreasonable retaliation.

Some of the propositions in the case would mean, for all practical purposes, that murder would never be reduced to manslaughter by reason of provocation (see Samuels, Excusable Loss of Self Control in Homicide, Modern Law Review, vol. 34 (1971), p. 163).

My conclusion is that there is no requirement (either as a separate element or as part of the matters in s. 23 (2) (b) or (c)) that murder is not to be reduced to manslaughter unless the retaliation is proportional or reasonable. The proviso is exhaustive of the requirements. Apart from the relevance of the response to the findings on (b) and (c), if there is a discretion to reduce from murder to manslaughter (of course subject to the proviso), the proportionality of the response would be a factor to be taken into consideration.

This branch of the law is far from satisfactory. One solution may be to substitute some new offence such as culpable homicide as proposed by Alec Samuels, loc. cit. Smith and Hogan (Criminal Law, 2nd ed. (1969), p. 215) also suggest that "the objective test should be abolished, and a purely subjective [test] applied" which would reduce the defence of provocation to a defence of "loss of self-control" and make the cause of the loss of self-control irrelevant.

As directions to the jury were not in accordance with what I consider is the correct construction of s. 23, I would uphold the appeal, quash the convictions for murder and substitute convictions for manslaughter.