Kaporonovski v The Queen

(b) Whether ss. 268 and 269 of the Code apply to a charge under s. 320 of the Code of unlawfully doing grievous bodily harm.

The jury convicted the applicant and the learned trial judge postponed judgment until the two questions had been considered and decided by the Court of Criminal Appeal of the State of Queensland. That Court, specially constituted by five judges, heard argument on the questions, and by a majority determined that both questions should be answered in the negative and that the case should be remitted to the learned trial judge to pronounce sentence on the applicant [1] . From this decision application is made to us for special leave to appeal. 1. [1972] Qd. R. 465.

The case transmitted by the learned trial judge to the Court of Criminal Appeal, although not altogether precise, appears upon analysis to reveal the following facts. Bajric spoke to the applicant words which constituted a wrongful insult of such a nature as to be likely, when offered to an ordinary person, to deprive him of the power of self-control and to induce him to assault the person by whom the insult was offered. The applicant was in fact provoked by that insult to act as he did. He took hold of Bajric's wrist and pushed Bajric's hand, which was holding a glass of beer, back towards Bajric's face. Bajric pushed back with his own hand. The glass was forced against Bajric's eye causing him grievous bodily harm. At some time during this incident the glass broke, but it is not clear whether that occurred before or after the glass touched Bajric's face. It was also stated in the case that there was some evidence that the applicant had acted in self-defence, but this is not relevant to the questions reserved.

The first question raised is whether a defence under s. 23 of the Code was available in the circumstances of the case. Section 23 provides as follows:

Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident.

Unless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole or part, by an act or omission, the result intended to be caused by an act or omission is immaterial.

Unless otherwise expressly declared, the motive by which a person is induced to do or omit to do an act, or to form an intention, is immaterial so far as regards criminal responsibility.

By s. 1 the term "criminally responsible" means "liable to punishment as for an offence", and s. 2 provides that "An act or omission which renders the person doing the act or making the omission liable to punishment is called an offence".

The first paragraph of s. 23, after the introductory proviso as to negligent acts and omissions, states two rules which, although they deal with related matters, are quite distinct. For present purposes the discussion of these rules may be confined to the case of acts, since it was acts and not omissions that resulted in the applicant being held criminally responsible in the present case. The first rule, that a person is not criminally responsible for an act which occurs independently of the exercise of his will, requires that the act for which a person is criminally responsible shall be his own act, and an act which results from the exercise of his will. Thus the section has been held to have the effect that an employer is not liable for the act of his servant done without his authority and contrary to his instructions (Hunt v. Maloney; Ex parte Hunt [2] ), that a person driving a motor vehicle would not be liable for causing the death of another if he had fallen asleep without any prior warning of his inability to keep awake and in circumstances where a reasonably careful driver would not have been aware that he was likely to fall asleep (R. v. Scarth [3] ) and that a person is not criminally responsible for acts done in a state of automatism caused by an injury to the head (Cooper v. McKenna; Ex parte Cooper [4] ). Of course other sections of the Code may render the exculpatory provisions of s. 23 inapplicable; for example, s. 7 may render a person who falls within its provisions criminally liable for an offence committed by another, and ss. 27 and 28 will govern cases of insanity and intoxication that might otherwise have fallen within s. 23. However, the first rule of s. 23, in so far as it applies to acts of the accused himself, requires that those acts should be of his own volition - that he should have willed that the acts themselves should happen. That rule is not concerned with the consequences of an act which the accused has willed. It is the second rule, that a person is not criminally responsible for an event which occurs by accident, that exculpates an accused from liability for the accidental outcome of his willed acts. Moreover, neither rule deals with the result intended to be caused by an act or omission; the second paragraph of s. 23 renders that immaterial unless the intention to cause a particular result is expressly declared (that is, in the provision creating the offence) to be an element of the offence constituted, in whole or part, by the act or omission.

1. [1959] Qd. R. 164. 2. [1945] St. R. Qd. 38. 3. [1960] Qd. R. 406.

There has been a difference of opinion as to what is comprehended within the meaning of the word "act" in the first paragraph of s. 23. One view is that it refers to any act forming an element of the offence charged; another is that it means what Dixon C.J., in Vallance v. The Queen [5] , called "the external elements necessary to form the crime". In the present case the submission of the applicant takes as its starting point the latter view. It was conceded that the pushing of the glass towards Bajric's face was an act which resulted from the exercise of the will of the applicant, but it was submitted that the "act", for the purposes of the first rule in s. 23, included everything that happened from the time when the applicant commenced to push against Bajric's hand until Bajric was occasioned grievous bodily harm, and that it should have been left to the jury to consider whether the pushing of the glass into Bajric's face with a degree of force sufficient to cause him grievous bodily harm was an act accompanied by the exercise of the applicant's will. This is very close indeed to a submission that the jury should have been invited to consider whether the applicant had an intention to cause grievous bodily harm - a question which was quite irrelevant to the charge.

In Vallance v. The Queen [6] , where the accused was charged with the offence of unlawfully wounding another, the Court discussed the meaning of the word "act" in s. 13(1) of the Criminal Code Tas., a section which although similar to s. 23 has important points of difference from that section. Section 13(1) provides:

No person shall be criminally responsible for an act unless it is voluntary and intentional, nor, except as hereinafter expressly provided, for an event which occurs by chance. 1. (1961) 108 C.L.R. 56.

Dixon C.J. said that the words of the first part of this subsection refer to the punishable acts of the accused and that since in that case the wounding was the punishable act it was the wounding which must be voluntary and intentional [7] . Windeyer J. was of a like opinion. He said [8] :

The statement that no person shall be criminally responsible for an act, unless it is voluntary and intentional refers, I think, as a mere matter of construction, to an act for which, if done voluntarily and intentionally, a person would be criminally responsible. The definition of criminally responsible in s. 1 seems to confirm this construction. The "act" referred to is thus a deed that, if done wilfully and intentionally (and in cases where a specific intent is an ingredient of the crime, done with that intent), would make the doer criminally responsible. Since nothing less than the act of wounding would, if done intentionally, give rise to criminal responsibility, he too considered that the wounding was the act to which s. 13(1) referred. However, this view was rejected by Kitto and Menzies JJ. Kitto J. said [9] : In my opinion, s. 13(1) is framed with a recognition that there is a distinction to be drawn between, on the one hand, a bodily action performed by a person, entailing criminal responsibility either per se or in virtue of some quality of the action, some consequence caused by it , some accompanying intent or state of mind , and, on the other hand, something eventuating in consequence of the action and attracting a criminal responsibility which the action otherwise would not have produced. When s. 13(1) speaks of an act being voluntary and intentional, before turning to the event and speaking of that as not occurring by chance, it seems to me to be addressing itself only to the question whether a person charged acted of his own free will and by decision, before asking whether that which eventuated from his act was a merely chance result. Menzies J. said [10] that the "act" was the act of shooting and not the act of wounding - the latter was the "event" or result brought about by the "act" of shooting. The other member of the Court, Taylor J., did not expressly deal with the question, although the reasons which he gave for his judgment [11] suggest that he was of a similar opinion to Kitto and Menzies JJ. 1. (1961) 108 C.L.R., at pp. 60-61. 2. (1961) 108 C.L.R., at p. 79. 3. (1961) 108 C.L.R., at p. 64. 4. (1961) 108 C.L.R., at p. 71. 5. (1961) 108 C.L.R., at pp. 68-69.

In my respectful opinion, the differences between s. 13(1) of the Tasmanian Code and s. 23 of the Queensland Code are not such as to render it necessary to give to the word "act" in the latter section a meaning different from that which it bears in the former. However, in Timbu Kolian v. The Queen [12] , the meaning of s. 23 of the Code, as adopted in Papua and New Guinea, fell for consideration and three members of the Court took the view that the question was not concluded by Vallance v. The Queen [13] . The facts were that the accused had, in the darkness, picked up a stick and aimed a blow at his wife but had struck and killed a baby who was being carried in his wife's arms. The accused did not know of, and had no reason to suspect, the presence of the baby. The whole Court held that the operation of s. 23 required the acquittal of the accused. Barwick C.J. and McTiernan J. were of opinion that the first rule in s. 23 applied. Their view was that the "act", for the purposes of s. 23, was the striking of the child on the head, and not the actual wielding of the stick. Kitto, Menzies and Owen JJ., on the other hand, considered that the second rule applied; Menzies J. said [14] that the death of the child from being struck upon the head with the stick was an event which occurred by accident, and Owen J. (with whom Kitto J. concurred) said [15] that the fact that the blow struck the child was an event which occurred by accident. Windeyer J. held that both rules applied: the act of the accused, namely hitting the child on the head with a stick thereby killing him, was not an intended act; alternatively, the striking of the child causing the death was an event which occurred by accident. Although in this case three members of the Court adopted an interpretation of s. 23 similar to that given to s. 13(1) of the Tasmanian Code by Dixon C.J. and Windeyer J. in Vallance v. The Queen [15a] , and the other members of the Court did not expressly dissent from that interpretation, it would in my opinion be quite wrong to regard the decision as an authority binding this Court to adopt that interpretation. To hold that the second rule applied, and that the death of the child was an event caused by accident, was in my opinion implicitly to reject the view that the first rule was applicable. Although of course one set of facts may call for a consideration of both rules and, as Timbu Kolian v. The Queen shows, those called upon to decide the question may agree that s. 23 applies while differing as to which rule is applicable, nevertheless, as Barwick C.J. pointed out in Timbu Kolian v. The Queen [16] , the second rule is directed to the consequences of an act which was accompanied by the will of the actor. Although it may be that in an exceptional case the applications of the two rules may not be mutually exclusive, that is not true of circumstances such as those under consideration in Timbu Kolian v. The Queen. The decision of Menzies, Kitto and Owen JJ. in that case that the killing or the striking of the child was an event which occurred by accident ought to lead to the conclusion that neither the killing nor the striking of the child was an "act" which occurred independently of the will of the accused. The Court was in effect evenly divided as to whether the first rule in s. 23 applied, and the question of the meaning of the word "act" in that section remains an open one upon which I am now free to give effect to my own opinion.

1. (1968) 119 C.L.R. 47. 2. (1961) 108 C.L.R. 56. 3. (1968) 119 C.L.R., at p. 56. 4. (1968) 119 C.L.R., at p. 71. 5. (1961) 108 C.L.R. 56. 6. (1968) 119 C.L.R., at pp. 52-53.

I can, with respect, appreciate the force of the argument that since s. 23 is intended to relieve an accused person from responsibility in the cases to which it applies, the "act" referred to must be one which renders the person doing it liable to punishment. However, it would in my respectful opinion be a departure from the ordinary meaning of the word to regard "act" as including all the ingredients of the crime other than the mental element. As has been pointed out, in many cases the bodily acts of the accused by themselves do not entail any criminal responsibility. Putting aside cases where a specific intention is required, there are many offences which are constituted only if the act of the accused was accompanied by some extrinsic circumstance (e.g. absence of consent on a charge of rape or the age of the girl on a charge of unlawful carnal knowledge) or had some particular consequence (e.g. the causing of grievous bodily harm, as in the present case). It would be straining language to regard the word "act" as extending to all such external circumstances. Further, the phrase "negligent acts" in the first paragraph of s. 23, and the word "act" in the second and third paragraphs, obviously can only apply to physical actions and do not refer, for example, to the consequences of those actions. However, perhaps the strongest indication of the intent with which "act" is used in the first paragraph of s. 23 is to be found in the very words of that paragraph, which, by distinguishing between an act and its consequences, show that "act" is not intended to embrace the consequences as well as the action that produced them. Section 23 is elliptical and when it speaks of criminal responsibility for an act or for an event it does not mean that the act or event per se would necessarily give rise to criminal responsibility, but rather refers to an act or event which is one of the circumstances alleged to render the accused person criminally responsible. It seems to me that this must be beyond argument in so far as the section refers to an event, for an event - the consequences of an act - alone could hardly give rise to criminal responsibility. In my opinion the "act" to which the first rule refers is some physical action, apart from its consequences - the firing of the rifle rather than the wounding in Vallance v. The Queen [17] and the wielding of the stick, rather than the striking or the killing of the baby in Timbu Kolian v. The Queen [18] . I thus respectfully adopt the views of Kitto and Menzies JJ. in Vallance v. The Queen [17] rather than the contrary opinions.

1. (1961) 108 C.L.R. 56. 2. (1968) 119 C.L.R. 47. 3. (1961) 108 C.L.R. 56.

The pushing, by the applicant, of the hand holding the glass was an action willed by the applicant. It was not an action which occurred independently of the exercise of his will and the first rule in s. 23 therefore had no application.

In my opinion, the second rule does not apply. It must now be regarded as settled that an event occurs by accident within the meaning of the rule if it was a consequence which was not in fact intended or foreseen by the accused and would not reasonably have been foreseen by an ordinary person: seeVallance v. The Queen [19] , Mamote-Kulang v. The Queen [20] , Timbu Kolian v. The Queen [21] and Reg. v. Tralka [22] . It is impossible to say that the grievous bodily harm suffered by Bajric was so unlikely a consequence of pushing a glass forcibly towards his face that no ordinary person could reasonably have foreseen it - indeed no very strong argument was advanced to the contrary. In the present case the provisions of s. 23 did not exculpate the applicant and the first question was rightly answered in the negative.

1. (1961) 108 C.L.R., at pp. 61, 65, 82. 2. (1964) 111 C.L.R. 62, at pp. 69, 72. 85. 3. (1968) 119 C.L.R., at pp. 67, 71. 4. [1965] Qd. R. 225, at pp. 228, 233-234.

The second question, in effect whether a defence of provocation is available on a charge of unlawfully doing grievous bodily harm, is one that has occasioned considerable controversy. The answer to it depends upon the proper construction of ss. 268 and 269 of the Code which appear in Ch. 26 ("Assaults and Violence to the Person Generally: Justification and Excuse") and read as follows:

268. Provocation. - The term "provocation", used with reference to an offence of which an assault is an element, means and includes, except as hereinafter stated, any wrongful act or insult of such a nature as to be likely, when done to an ordinary person, or in the presence of an ordinary person to another person who is under his immediate care, or to whom he stands in a conjugal, parental, filial, or fraternal, relation, or in the relation of master or servant, to deprive him of the power of self-control, and to induce him to assault the person by whom the act or insult is done or offered.

When such an act or insult is done or offered by one person to another, or in the presence of another to a person who is under the immediate care of that other, or to whom the latter stands in any such relation as aforesaid, the former is said to give to the latter provocation for an assault.

A lawful act is not provocation to any person for an assault.

An act which a person does in consequence of incitement given by another person in order to induce him to do the act, and thereby to furnish an excuse for committing an assault, is not provocation to that other person for an assault.

An arrest which is unlawful is not necessarily provocation for an assault, but it may be evidence of provocation to a person who knows of the illegality.

269. Defence of provocation. - A person is not criminally responsible for an assault committed upon a person who gives him provocation for the assault, if he is in fact deprived by the provocation of the power of self-control, and acts upon it on the sudden and before there is time for his passion to cool; provided that the force used is not disproportionate to the provocation, and is not intended, and is not such as is likely, to cause death or grievous bodily harm.

Whether any particular act or insult is such as to be likely to deprive an ordinary person of the power of self-control and to induce him to assault the person by whom the act or insult is done or offered, and whether, in any particular case, the person provoked was actually deprived by the provocation of the power of self-control, and whether any force used is or is not disproportionate to the provocation, are questions of fact.

From the time of the enactment of the Code, and for some decades afterwards, it was accepted by the courts in Queensland without question that s. 269 had the effect that provocation, as defined in s. 268, was, subject to the conditions stated in s. 269, a defence to a charge of manslaughter, unlawfully doing grievous bodily harm, or unlawfully wounding, where the death, grievous bodily harm or wounding had been caused by an assault committed by the accused: R. v. Coupland ((1901) Griffith C.J.) and R. v. Smeltzer ((1905) Cooper C.J.), cited in Macleod's Queensland Criminal Code Supplement, at pp. 94-96; R. v. Foxcroft (Real J.) [23] ; R. v. Harris (Court of Criminal Appeal) [24] ; R. v. Sabri Isa (Stanley and O'Hagan JJ.) [25] . The Code in defining those crimes does not use the word "assault", and does not make an assault a necessary component part of the offence, but the defence of provocation was nevertheless held applicable where the commission of an assault was alleged to have been in fact an element of the offence charged. However, a shift of opinion became manifest in Reg. v. Martyr [26] , where Philp J., in the course of expressing his view that under s. 291 of the Code (which provides that "it is unlawful to kill any person unless such killing is authorized or justified or excused by law") an accused person escapes liability only if the killing itself is authorized, justified or excused, and that it is not enough that the blow or other act causing death was authorized, justified or excused, went on to say [27] :

Thus by s. 269 of the Code a person is not criminally responsible for an assault committed upon a person who gives him provocation for the assault. The assault is justified but if death be caused by the assault the mere fact that the assault was justified is immaterial to the question whether the killing was justified or excused. The question fell for discussion again in Reg. v. Johnson [28] , where the Court of Criminal Appeal was called upon to consider the meaning of provocation in s. 304 of the Code, a section which appears in Ch. 28 ("Homicide: ") and which then read as follows: 304. Killing on provocation. - When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute wilful murder or murder, does the act which causes death in the heat of passion caused by sudden provocation, and before there is time for his passion to cool, he is guilty of manslaughter only. (The words "wilful murder or" have since been omitted from the section.)The actual decision in that case was that the word "provocation" in s. 304 was used in the sense in which it was understood at common law and not with the meaning given to it by s. 268. In reaching that conclusion Philp J. [29] expressed again his earlier opinion that s. 269 affords no exculpation so far as manslaughter is concerned. Lucas J. was of a similar opinion. He said [30] : Wilful murder and murder are not offences of which an assault is an element, and it is only in connection with offences of wilful murder and murder that s. 304 has any operation. It is true that many, perhaps most, cases of wilful murder and murder are cases in which an assault has occurred, but this does not, in my opinion, make these offences offences of which an assault is an element. These remarks of Philp and Lucas JJ. were treated by Hart J. in Reg. v. Sleep [31] , as mere dicta and not binding upon him, and upon consideration he followed the earlier authorities and held that s. 269 affords a defence to a charge of manslaughter. In Reg. v. Day [32] Hoare J. took the same view. These authorities were discussed by the Court of Criminal Appeal in Reg. v. Williams [33] , where it was held that the interpretation of ss. 268 and 269 reached in Reg. v. Johnson [28] was correct and that Reg. v. Sleep [31] was wrongly decided. Notwithstanding this decision, in Reg. v. Pickett [34] , Hart J. held that the facts in Reg. v. Williams [35] had raised no question of provocation and that the observations of the Court in that case were only dicta: he accordingly felt free to adhere to the views that he had earlier expressed in Reg. v. Sleep [35a] . It was in the light of this striking conflict of judicial opinion that a Special Court of Criminal Appeal of five members was convened in the present case. 1. (1911) 5 Q.J.P. 129. 2. [1930] Q.W.N. 22. 3. [1952] St. R. Qd. 269, at pp. 288-289, 303-305. 4. [1962] Qd. R. 398. 5. [1962] Qd. R., at p. 414. 6. [1964] Qd. R. 1. 7. [1964] Qd. R., at p. 5. 8. [1964] Qd. R., at p. 20. 9. [1966] Qd. R. 47. 10. Unreported, 7th June 1966; Supreme Court of Queensland. 11. [1971] Qd. R. 414. 12. [1964] Qd. R. 1. 13. [1966] Qd. R. 47. 14. [1972] Qd. R. 425. 15. [1974] Qd. R. 414. 16. [1966] Qd. R. 47.

The same question has also fallen for decision in Papua New Guinea, where the Quensland Code has been adopted as part of the law, and it has there been held that s. 269 does make provocation a defence to a charge of manslaughter: Reg. v. Nantisantjaba [36] .

A controversy not unrelated to that concerning the application of ss. 268 and 269 has also raged in relation to the meaning of provocation in s. 304. Its relevance to the present case is that if the definition contained in s. 268 applies to provocation in s. 304, that would afford support to the view that the words "an offence of which an assault is an element" in s. 268 do not limit the application of that section to offences of which an assault is, by definition, a necessary element. It was assumed in the Court of Criminal Appeal in Queensland (at least by E. A. Douglas J.) in R. v. Willis [37] , and held by a majority of the same Court in R. v. Sabri Isa [38] , that provocation in s. 304 has the meaning given to that expression by s. 268. However, in Reg. v. Herlihy [39] , the Court of Criminal Appeal, by a majority (Mansfield C.J. and Mack J.), held (on grounds the validity of which it is unnecessary to canvas) that R. v. Sabri Isa [38] did not amount to a binding decision and that upon the proper construction of s. 304 "provocation" in that section was to be understood according to its meaning at common law. This has since been accepted in Queensland as settled doctrine: Reg. v. Young [40] ; Reg. v. Johnson [41] . However, in Western Australia, where a Code in similar terms is in force, and in Papua New Guinea, the decided cases strongly support the view that provocation in s. 304 is to be interpreted as defined in s. 268: Mehemet Ali v. The Queen [42] ; Reg. v. Hamo-Tine [43] ; Reg. v. Zariai-Gavene [44] ; Reg. v. Iawe-Mama [45] ; Reg. v. K. and J. [46] .

1. Unreported, 1946; Supreme Court of Queensland. 2. [1952] St. R. Qd. 269. 3. [1956] St. R. Qd. 18. 4. [1952] St. R. Qd. 269. 5. [1957] Qd. R. 599, at p. 603. 6. [1964] Qd. R., at pp. 6, 22. 7. [1957] 59 W.A.L.R. 28. 8. (1960) 8 F.L.R. 381. 9. [1963] P. & N.G.L.R. 203. 10. [1965-66] P. & N.G.L.R. 96. 11. Unreported, 17th November 1972; Supreme Court of Papua New Guinea.

This Court is not bound by any of these authorities and is free to resolve these disputed questions according to its own opinion. Although it is unnecessary to canvass in further detail the reasoning to be found in these decisions, it ought to be said that the judgments contain clearly stated arguments in favour of the contending views and have been most helpful in enabling me to reach a decision.

The question that now falls to be decided is one of construction. The instrument to be construed is a Code. It is hardly necessary to repeat, although it is of importance not to forget, the rules of construction of codifying instruments that have been laid down in such authorities as Bank of England v. Vagliano Brothers [47] ; Robinson v. Canadian Pacific Railway Co. [48] ; Brennan v. The King [49] ; and Wallace-Johnson v. The King [50] . The proper course in the first instance is to turn to the language of the Code itself and to construe it according to its natural meaning. However, if the Code uses an expression (such as "provocation") which has acquired an accepted technical meaning, that accepted meaning may be attributed to the word if the Code itself has not defined it.

1. [1891] A.C. 107, at pp. 120, 144-145. 2. [1892] A.C. 481, at p. 487. 3. (1936) 55 C.L.R. 253, at p. 263. 4. [1940] A.C. 231, at p. 240.

The section of the Code which, in cases to which it applies, makes provocation a defence, is s. 269. In my opinion if that section stood alone it would (subject, of course to the conditions which it specifies) exculpate an accused person who stood charged with manslaughter, unlawfully doing grievous bodily harm or unlawfully wounding, if the death or injury had resulted from a provoked assault. If the accused is not criminally responsible for the assault he cannot, in my opinion, be held responsible for the death or injury which has resulted from it. To say, as Philp J. did in Reg. v. Martyr [51] , that the provocation may excuse the assault but not the killing, would in my opinion, with all respect to that eminent judge, be to place altogether too narrow a construction on the exculpatory words of s. 269 and to construe s. 291 with a slavish literalism which would ignore the sense of the section and its relation to other provisions of the Code. However, the words of s. 269 must of course be understood in the light of s. 268 and it is upon the phrase "used with reference to an offence of which an assault is an element" contained in that section that much of the argument in favour of a restricted view of s. 269 is based.

It has been said that the fact that the definition of "provocation" appears in s. 268, in the chapter dealing with assaults,rather than in s. 1, the definition section, of the Code, provides an indication that the definition is intended to be applied only for limited purposes. It has also been said that the introductory words of the definition show that it governs the meaning of "provocation" only when that term is used in the Code in respect of an offence which, as enacted, makes an assault an element. However, the word "provocation" appears in the Code only in ss. 25, 268, 269, 270 and 304, although the word "provoked" is also used in ss. 271 and 272, and "provoke" is used in ss. 61 and 73. In none of those sections is "provocation" used with reference to an offence of which an assault is declared to be a necessary element. It is of course clear that the definition in s. 268 must govern the word provocation in s. 269 - if that were not so, and if it did not apply to s. 304, it would have no effective application at all. However, strictly speaking, "provocation" in s. 269 is not used with reference to any offence, for the section describes circumstances in which no offence has been committed notwithstanding that there was an assault, for the person who committed the assault is absolved from criminal responsibility for it. Further, s. 269 is expressed to apply to any case in which an assault has been committed upon a person who has given provocation for the assault and there is nothing in that section to confine its operation to cases where the offence as defined specifies an assault as an element of it. If the definition in s. 268 is to apply to the term provocation in s. 269 - as it must - the opening phrase of s. 268 cannot mean "used with reference to an offence of which an assault is expressly declared to be a necessary element". The phrase, which is imprecise and not well chosen, must therefore be given some such meaning as "used with reference to a case in which an assault in fact formed an element (or the sole element) of the offence charged". On this view the definition would apply to s. 304 in cases where the manslaughter was caused by an assault. But whatever meaning is given to the phrase in s. 268 it is impossible to avoid the conclusion that the definition of provocation in s. 268 applies to the term as used in s. 269, and since all that s. 268 does is to define the meaning of "provocation" there is no justification for regarding the introductory phrase in that section as imposing a further limitation on the scope of s. 269.

We were referred to the many sections of the Code in which the word "element" is used but they provide little assistance in resolving the present question. "Element" is an equivocal word; an element of an offence must be a constituent part of the offence but it may be either an essential component of the offence as defined or a part of the offence as it was actually committed. It is true that in quite a number of sections of the Code (of which ss. 22, 23 and 28 are only a few) the context shows that the word "element" can only mean an element of the offence as defined but in others (e.g. ss. 12, 557 and 685) it can clearly enough be used in either sense. The word is also used in s. 575 and the cases in which that section has been discussed (cases which it is not here necessary to consider) show the doubt that can attend the meaning of the word. A consideration of the sections in which "element" appears does not indicate that in the Code the word is always used to mean a component part of the offence as expressly defined.

If the defence given by s. 269 were to be confined to offences in which an assault is expressed to be a necessary element of the offence, the result would be that the Code would in some circumstances have a quite capricious operation. It would mean that the availability of the defence of provocation would depend on the expression used in the Code to define the offence, rather than on any rational considerations. For example, the defence would be available to a person charged with unlawfully assaulting another and thereby doing him bodily harm (s. 339) but not to a person charged with unlawfully wounding another (s. 323) when the wounding was caused by an assault, although both offences carry the same maximum punishment and although a case of unlawful wounding will not necessarily be any more serious than one of assault causing bodily harm. It is legitimate, in choosing between the possible meanings of this ambiguous provision in the Code, to adopt a construction that would avoid anomalies of this kind.

Further, it would be somewhat surprising to find that in the Code, whose authors went to pains to frame provisions that would exclude and supersede the general rules of the common law as to criminal responsibility, and who provided a full and careful definition of "provocation" that in some respects differed from the common law, should nevertheless have intended that to ascertain the meaning of the word "provocation" in s. 304 it should still be necessary to roam over the various authorities in which the scope of the doctrine had been defined at common law. The fact that the law of homicide was materially altered by the provisions of ss. 301 and 302 (which have since respectively been repealed and amended) lends some further support for the view that it was not likely to have been intended that the rules of the common law with regard to provocation should continue to apply.

Certain other arguments have been advanced in favour of the view that s. 268 can only apply in relation to offences of which an assault is a necessary element according to the definition of the offence, and does not define the word as used in s. 304. It has been said that even if the definition contained in s. 268 were read into s. 304, the statement of the law with respect to the reducing effect of provocation on charges of murder would be defective and that recourse must in any case be had to the common law to fill the gap. In particular it has been suggested that s. 304 does not contain any express requirement that the accused should be "in fact deprived by the provocation of the power of self-control" and does not contain a requirement that "the force used is not disproportionate to the provocation" (cf. s. 269.). However, s. 304 speaks of an act done "in the heat of passion caused by sudden provocation" and those words imply that the act was done by a person who, acting in the heat of passion, had lost his power of self-control. As to the absence from s. 304 of a requirement that the force used should not be disproportionate to the provocation, the omission was in my opinion deliberate. Section 304 applies only to cases in which the person who gave the provocation has been killed, and the force used that resulted in the killing must necessarily have been disproportionate to the provocation offered, except perhaps in a case where a complete defence would have been available on the ground of self-defence. In my opinion there is no reason on the face of the sections why the definition in s. 268 should not be read into s. 304 as well as into s. 269. It has also been said that s. 304 can apply to a killing which has been caused otherwise than by an assault, e.g. as the result of an interference with a ship, motor car or aircraft, and that this shows that s. 268, which applies only to assaults, has no application to s. 304. Murders effected by damaging the vehicle in which the person killed was travelling or about to travel are not unknown, but it must indeed be a rare and exceptional case - if indeed one has ever arisen - where the interference with a vehicle which resulted in death was done in the heat of passion rather than as a result of malevolent deliberation. However that may be, in my opinion the framers of s. 304 did not contemplate that the doctrine of provocation could apply to a case in which the killing had been brought about in circumstances in which there was no assault. I reject the conclusion that s. 304 was intended to incorporate some of the common law rules as to provocation. On the contrary, in my opinion s. 268 provides the definition of provocation in s. 304, and if this is so, the words of s. 268 cannot be restricted to the case of offences whose definition includes an assault as an element.

My conclusion may be shortly stated. Section 269 absolves from criminal responsibility for an assault a person who is acting under provocation in the circumstances mentioned in the section. Of course the section does not apply to cases of murder: that is the effect of the proviso to the first sub-section. However, to absolve a man from criminal responsibility for an assault must similarly be to absolve him from liability for an offence which was in fact constituted by the assault. If there were a conflict between the words of s. 268 and s. 269, those of the latter section ought to prevail since it is the operative section, and has been enacted in favour of the liberty of the subject. However, the words of s. 268 do not in my opinion mean that the definition in that section can only be applied to the case of an offence of which an assault is declared by the provisions creating the offence to be an element.

For these reasons, and with great respect to those who have taken a contrary view, in my opinion the second question in the case should have been answered "Yes".

The question then arises, what order ought to be made in the matter? By s. 668B the question reserved is to be heard and determined as an appeal. It follows from what I have said that the defence of provocation should have been left to the jury unless on the evidence no reasonable jury could fail to have been satisfied that the force used was disproportionate to the provocation or was intended or likely to cause death or grievous bodily harm. It is not possible on the facts stated to say that a reasonable jury must have been so satisfied. If the evidence had shown that the glass had been broken before it was pushed towards Bajric's face it would have been difficult to escape the conclusion that the force used by the applicant was likely to cause grievous bodily harm. However, it does not appear when the glass became broken and although it was foreseeable that the pushing of an unbroken glass into Bajric's face might cause grievous bodily harm it was a matter for the jury to say whether it was likely in all the circumstances to cause grievous bodily harm. Further, on the facts stated it is not possible to say that notwithstanding the failure to leave the question of provocation to the jury no substantial miscarriage of justice has actually occurred, within the meaning of the proviso to s. 668E. The conviction ought therefore to be set aside.

On behalf of the applicant it was submitted that having regard to the considerable delays that have occurred since the conviction (which were explained in part by a hope that the decision in Reg. v. Williams [52] would conclude the question in issue and by the difficulty of convening a Court of Criminal Appeal of five judges) we should refrain from ordering a new trial. It would seem to me, however, that nothing has been shown in the material before us that would justify us in declining to order a new trial. No doubt the Crown in deciding whether to proceed with a new trial will give such attention as may be proper to the delays that have occurred.

For these reasons I would grant special leave to appeal. I would answer the first question "No" and the second question "Yes", would quash the conviction and would order a new trial.

On this appeal there arise for decision two questions of law reserved by the learned trial judge in the course of the trial of the accused. A case was stated for the Queensland Court of Criminal Appeal, specially constituted of five judges, and a majority of that Court answered each question in the negative; from that decision special leave is now sought to appeal to this Court.

I have had the advantage of reading the reasons for judgment of Gibbs J. With the considerable assistance which I have derived from the arguments of counsel in this case and from the judgments of each of the members of the Court of Criminal Appeal I have concluded that I do not wish to add anything to what is said by my brother Gibbs concerning what are important and very vexed questions affecting the interpretation of the Criminal Code of Queensland. I agree both with his reasons for judgment and with the form of order which he proposes.