Johnson v The Queen

Johnson v The Queen - [1976] HCA 44 - HCA 1976 case summary — Zoe

[58]

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".

[70]

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.

[73]

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].

[92]

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.

[105]

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] :

[114]

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.

[117]

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] :

[121]

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.

[149]

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.

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