Criminal Law (N.S.W.) - Murder - Provocation - Relevance for prosecuting authorities - Relevance at committal proceedings - Crimes Act 1900 (N.S.W.), s. 23(1) - Justices Act 1902 (N.S.W.), s. 41.

APPLICATION for special leave to appeal from the Supreme Court of New South Wales.

MASON C.J., DEANE, GAUDRON AND McHUGH JJ. This is an application, brought out of time, for special leave to appeal from a decision of the Court of Criminal Appeal of New South Wales. That Court allowed an appeal from a decision and order of Sully J. granting a permanent stay of an indictment "charging (Richard Kolalich ("the applicant")) with the crime of murder which indictment (the Director of Public Prosecutions ("the DPP")) has indicated he proposes to present ex officio ... upon (the applicant's) forthcoming presentment for trial".

2. The proposed indictment is to be presented ex officio because, although the applicant was originally charged with murder, committal proceedings resulted in his committal for trial on the lesser charge of manslaughter. Evidence was given at the committal proceedings of an altercation in a restaurant. According to that evidence the deceased struck the applicant with a wine bottle; a little later, the deceased, followed by the applicant, went to the kitchen where he received fatal stab wounds. That evidence raised the possibility of provocation and the presiding magistrate held that it reduced "the crime that a jury could convict of from murder to manslaughter".

3. The DPP wrote to the applicant's solicitors informing them that he had found a bill for an indictment for murder. No explanation was offered for the decision to proceed in that way rather than on an indictment for manslaughter. Sully J. rejected an argument that the decision was made in bad faith. That argument was based on a paragraph in the letter indicating that a plea to manslaughter might be accepted. However, his Honour held that proceedings on an ex officio indictment charging murder would constitute oppression and, thus, an abuse of process.

4. The Court of Criminal Appeal set aside the order of Sully J. on the basis that, by s.23(1) of the Crimes Act 1900 (N.S.W.), provocation is an issue which does not arise for consideration outside the confines of a murder trial. It followed on that view that provocation should not have been considered in the committal proceedings. If that view be correct, it also follows, as was accepted by the Solicitor-General in his argument on behalf of the DPP, that prosecuting authorities could not, on account of provocation, charge manslaughter rather than murder.

5. Section 23(1) of the Crimes Act is as follows:

"Where, on the trial of a person for murder, it appears

that the act or omission causing death was an act done or

omitted under provocation and, but for this subsection and

the provocation, the jury would have found the accused

guilty of murder, the jury shall acquit the accused of

murder and find the accused guilty of manslaughter."

not say what anyone else must or must not do. Neither language nor subject-matter provides any basis for treating the provision as having an operation beyond its terms.

6. The words "(w)here, on the trial of a person for ..." appear in various sections of the Crimes Act, including ss.23(1), 23A(1) and (5), 40, 129 and 130. The other sections of the Crimes Act which commence with these words are ss. 34, 127, 128, 163, 182, 183, 191, 425 and 427. In ss.23(1), 40, 129 and 130 they introduce provisions specifying, in relation to a particular offence, s. 23-murder; s.40-using poison so as to endanger life; s.129- cattle killing; s.130-cattle stealing, what, in specified circumstances, s.23-if provocation appears; ss.40, 129 and 130-if the jury are not satisfied that the accused is guilty of the offence charged but are satisfied that he is guilty of a specified lesser offence, the jury must s.23(1)-"shall acquit ... of murder an find the accused guilty of manslaughter", or may ss.40, 129 and 130-"may acquit ... of the offence charged and find him guilty of (the specified lesser) offence", do. In s.23A(1) the same words introduce the statutory formulation of the "defence" of diminished responsibility which, like provocation, may be raised only in answer to murder. And, in s.23A(5), they introduce a provision enabling the prosecution, in a case where the defence relies on one or other of diminished responsibility or mental illness, to call evidence tending to show one mental state rather than the other.

7. The wider context provided by ss.23A, 40, 129 and 130 makes it clear that the words "on the trial of a person for ..." serve no special purpose. They merely provide the setting in which, in certain circumstances, certain consequences follow. There is no scope, in that wider context, for treating the opening words of s.23(1) as importing the notion that provocation cannot be considered outside the confines of a murder trial.

8. The "defence" of provocation is different from "defences" which raise a reasonable doubt as to some element of the offence. As the wording of s.23(1) makes clear, the "defence" of provocation only comes into operation if, but for provocation, the jury "would have found the accused guilty of murder". See, in relation to mens rea, Johnson v. The Queen [1976] HCA 44; (1976) 136 CLR 619, per Barwick C.J. at p 633; Van Den Hoek v. The Queen [1986] HCA 76; (1986) 161 CLR 158, at p 166. And, provocation merely serves to reduce the offence from murder to manslaughter. However, those features, which are also common to the "defence" of diminished responsibility provided by s.23A of the Crimes Act, do not provide a basis for treating the issue of provocation differently from any other issue which might arise in the course of a criminal trial. Accordingly, it is an issue which may properly be considered by prosecuting authorities. They may decide that, on that account, manslaughter should be charged rather than murder. And, as foreshadowed in the letter from the DPP to the applicant's solicitors, they may also decide that, on that account, a plea of guilty to manslaughter should be accepted in satisfaction of an indictment for murder. Whether provocation is also a matter to which regard may be had in the course of committal proceedings depends on s.41 of the Justices Act 1902 (N.S.W.).

9. Section 41 of the Justices Act provides for committal proceedings with respect to indictable offences. It appears from s.41(1) that such proceedings are instituted after the accused has been charged on information with a specific offence. The first part of the proceedings involves the taking of the prosecution evidence. Section 41(2) governs the position at the end of the prosecution case in these terms:

"When all the evidence for the prosecution has been

taken, the Justice or Justices shall, after considering

all the evidence before the Justice or Justices -

(a) if not of the opinion referred to in paragraph (b)

- forthwith order the defendant to be discharged

as to the information then under inquiry; or

(b) if of the opinion that, having regard to all the

evidence before the Justice or Justices, the

evidence is capable of satisfying a jury beyond

reasonable doubt that the defendant has committed

an indictable offence -

(i) if the defendant is present - proceed as

provided by subsections (4), (5) and (6); or

(ii) if the defendant is not present - proceed as

provided by subsection (6)."

It is clear from s.41(2) that, notwithstanding that the accused has been charged with a specific offence, the proceedings extend beyond "the information then under inquiry" to embrace any indictable offence. However, s.41 does not disclose the steps which are to be taken in the event that an opinion is formed that the evidence cannot sustain the charge in the information but can sustain some other charge.

10. If an opinion is formed in accordance with s.41(2)(b), the accused person is given an opportunity, if present, to make a statement or to give evidence s. 41(4) and (5). An opportunity is also provided for the calling of witnesses on behalf of the accused person s.41(5). By s.41(6) the Justice or Justices is or are required to:

"after considering all the evidence ... -

(a) if of the opinion that, having regard to all the

evidence before the Justice or Justices, a jury

would not be likely to convict the defendant of an

indictable offence - forthwith order the defendant

to be discharged as to the information then under

inquiry; or

(b) if not of that opinion - commit the defendant for

trial."

Again, s.41(6) distinguishes between "the information then under inquiry" and "an indictable offence". And again, the steps which are to be taken in the event that an opinion is formed that a jury would not be likely to convict on the charge in the information but would be likely to convict of some other offence are not disclosed. It was suggested in the course of argument that a person could be committed for trial without being made aware of the offence for which he or she is committed. That course would be most unsatisfactory and contrary to the rules of natural justice. Sub-section (6) should not be construed in that way. However, that issue does not arise in this case where, as earlier indicated, the applicant was committed for trial on a charge of manslaughter.

11. The direction in s.41(6) of the Justices Act to form an opinion, having regard to all the evidence, whether a jury would be likely to convict of an indictable offence clearly requires that, in a case such as the present, regard be had to whether a jury would be likely to convict of murder, that being an "indictable offence" by reference to which category of offences s.41(6) operates. And that necessarily requires a consideration of the issue of provocation, which, as earlier indicated, is not restricted to the confines of a trial.

12. Although the presiding magistrate was bound to consider provocation, it does not follow that, because he formed the view that a jury would not be likely to convict for murder, proceedings for that offence would constitute oppression and, thus, an abuse of process. The DPP clearly has power to present an ex officio indictment charging a person with an offence notwithstanding that the committing magistrate has declined to make an order committing him for trial on a charge of that offence. Indeed that is common ground between the parties. Circumstances could arise in which an exercise by the DPP of that power would constitute an abuse of the process of the Supreme Court. However, where we respectfully disagree with the thoughtful judgment of the learned primary judge in the present case is that it appears to us that, once it is accepted (as his Honour found) that the reference in the DPP's letter to a possible plea of manslaughter did not justify a finding of bad faith, the DPP's filing of an ex officio indictment alleging murder would not, in the circumstances as established by the evidence, constitute such an abuse of process.

13. It is true that the fact that the magistrate declined to make an order committing the applicant for trial on a charge of murder is a significant consideration militating against a charge of murder being brought by an ex officio indictment. The DPP should take account of that consideration in determining the contents of any indictment to be presented against the applicant. There are, however, countervailing considerations which the DPP was entitled to take into account. There is, for example, much to be said for the view that the question whether the prosecution has established that what would otherwise be murder is not reduced to manslaughter by provocation is, except in an exceptional case, best left for the determination of a jury entrusted with deciding whether, absent such a defence of provocation, the accused is guilty of murder. For one thing, any defence evidence on the primary charge of murder, which is unlikely to be led on the committal hearing or to be available to the prosecuting authorities before the trial, may throw significant light on the issue of provocation, especially the subjective element of that defence. In that regard, it needs to be borne in mind that a denial of one or other of the elements of a defence of provocation may well turn out to be at least implicit in the substantive case for the defence on the primary charge at the trial.

14. If that view be accepted, as it would seem to be by the DPP, it is difficult to see how the circumstances of this case, including the lapse of time between the suggested provocation and the actual killing, could bring it within the exceptional category of case in which the question whether what would otherwise be murder is reduced to manslaughter by provocation should not be left to the jury. So to say is not to suggest that the learned magistrate was in error in declining to make an order committing the applicant for trial on the charge of murder. It is simply to say that, in all the circumstances, it was open to the DPP, in the proper exercise of the administrative discretion vested in that office, to decide that an ex officio indictment charging murder should be presented.

15. As mentioned above, the Solicitor-General, in seeking to uphold the reasoning of the Court of Criminal Appeal, accepted that a consequence of his argument would be that the DPP could never, by reason of facts supporting a defence of provocation, properly file an indictment charging manslaughter rather than murder. However, the material before this Court does not establish that the DPP acted on that mistaken basis in deciding to present an indictment charging murder in the present case. If he did, he is plainly under an obligation to reconsider the question whether, notwithstanding the learned magistrate's refusal to commit the applicant for trial on a charge of murder, an indictment charging murder should be presented.

16. Notwithstanding that we take a different view of the effect of s.23(1) of the Crimes Act to the Court of Criminal Appeal, it follows from our reasoning that the actual decision of the Court was correct. Accordingly, this case does not warrant the grant of special leave. In the circumstances the appropriate order is that the application for an extension of time within which to make application for special leave to appeal be refused.

BRENNAN J. In this case, the applicant accepts that the order committing him for trial on a charge of manslaughter "to the District Court ... or such other Court ... as the Attorney General shall appoint" was validly made. It is therefore unnecessary to consider whether Ex parte McQuillan (1932) 49 WN (NSW) 87 which sanctioned the practice of orally recharging a person appearing before Justices with an offence different from the offence charged in the information then under inquiry and committing that person for trial on the offence orally charged, is consistent with the provisions of s.41 of the Justices Act 1902 (N.S.W.). Nor is it necessary to consider the jurisdiction of a Judge of the Supreme Court of New South Wales to order a permanent stay of proceedings in that Court on an indictment which the Director of Public Prosecutions "has indicated he proposes to present ex officio against the (applicant) upon his forthcoming presentment for trial". In this Court, the Director of Public Prosecutions did not challenge the jurisdiction of Sully J. to make such an order before an indictment charging the applicant with murder had been presented. Assuming that Sully J. had jurisdiction to order a stay of the proceedings which would be commenced by presentation of such an indictment where the continuance of such proceedings would constitute an abuse of the Court's process, the question is whether proceedings on an indictment charging the applicant with murder would constitute an abuse of the Court's process.

2. The propounded "abuse of process" was said to be established by an unexplained decision by the Director of Public Prosecutions to present an ex officio indictment charging murder when the committing magistrate refused to commit on a charge of murder and had committed only on a charge of manslaughter, the circumstances allegedly suggesting that the decision was designed to encourage the applicant to plead guilty to manslaughter. In my opinion, this argument falls far short of showing any abuse of process. There is no suggestion that proceedings taken on an indictment of the applicant for murder would have any purpose save the due execution of the criminal law. See Jago v. District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23, at pp 30,47,71. If such an indictment is presented ex officio, there will be no occasion for the grant of a temporary stay until committal proceedings are held. The committal proceedings were held on an information charging murder. The case is quite different from Barton v. The Queen [1980] HCA 48; (1980) 147 CLR 75. A decision by the Director of Public Prosecutions to indict ex officio on a charge for which an accused has not been committed is not of itself evidence of an abuse of process: it is simply the exercise of a discretion he possesses to put the accused on trial. In the circumstances of this case, where the facts revealed in the depositions might reasonably be thought sufficient to support a verdict of murder, a decision to indict for murder rather than manslaughter does not justify an inference that the decision has been taken for any purpose alien to the purpose for which the power to present an ex officio indictment was conferred. Prima facie, the purpose of the decision is to ensure the due execution of the criminal law.

3. As to the scope of the power to commit and the power to indict, I am in agreement with the majority and, in particular, with the construction and operation which their Honours attribute to s.23(1) of the Crimes Act 1900 (N.S.W.). There is power to commit and to indict on a charge of manslaughter where the evidence shows an intentional killing but there is evidence of provocation and it is sometimes appropriate for the prosecution on a murder indictment to accept a plea of guilty to manslaughter in such a case. But, I would add, it should be an exceptional case before any of these powers is exercised so as to withhold the issue of provocation from a jury when the evidence is otherwise sufficient to establish a killing with intent to kill. I agree that, on the facts revealed in the depositions, this is not such an exceptional case. Though I would prefer to dismiss the appeal, I am content to join in the making of the order proposed.

Application for an extension of time within which to apply for special leave to appeal refused.