Moffa v The Queen

It therefore becomes necessary for me to consider the submissions made on behalf of the applicant as to the propriety and sufficiency of the summing up on relation to provocation. These submissions are recounted in the reasons of my brother Gibbs; I have no need to repeat them. I shall deal, first, with the submission that the learned trial judge did not tell the jury that, if they thought the accused's account of the events of the fatal morning was reasonably possible and further thought that it was reasonably possible that such a situation would cause an ordinary man to lose his self-control so far as to form an intent to kill or do grievous bodily harm, the onus lay on the Crown to establish beyond reasonable doubt that the killing was unprovoked. I have expressed the submission in this expanded form in order to bring out the essential elements. As I have said, the State of South Australia has not by statute varied the relevant common law. The question of onus is therefore governed by Woolmington v. Director of Public Prosecutions [26] . The difficulties which that decision places in the path of the Crown in its endeavour to establish an unlawful killing are obvious: and the difficulty a jury must have in applying the onus in a case where the provocation may be marginal in some or all of its necessary ingredients is equally obvious. Thus extreme care is called for in the instruction of a jury where provocation is open to them if a proper balance is to be maintained between Crown and accused. In my reasons for judgment in Johnson v. The Queen [27] I indicated that a claim to the reduction of murder to manslaughter by reason of provocation is not really a matter of defence which the Crown should be required to negative beyond reasonable doubt: and that it would not be unjust or unfair to place upon the accused the satisfaction of the jury on a balance of probabilities of all the elements necessary to warrant a refusal to find murder and a finding of manslaughter. The administration of criminal justice would, in my opinion, be aided and not impaired by the production by statute of such a position.

But, as the law stands in South Australia, if there is room for a finding of provocation, it is for the Crown to establish beyond reasonable doubt that the killing was unprovoked. It is essential that the jury be so instructed in plain and direct terms. There is no doubt the trial judge did not do so in this case. Indeed, the impression I get from reading and rereading the summing up is that the jury would, by its terms, be led to believe that the onus was on the accused. I take the following extracts from the summing up, which, though extracted, do present a fair picture of the summing up as a whole.

Though the judge correctly instructed the jury that it was for the Crown "to prove beyond reasonable doubt that the killing was unlawful, without lawful excuse", it is plain from the illustration immediately given by the judge, an illustration related to self-defence, that this direction was not in any way related to the matter of provocation.

After dealing with the necessity in murder of an intent to kill or do grievous bodily harm, the judge said:

There is another form of act - and probably what the defence suggests in this case may bring it nearer to this type of act - which would reduce murder to manslaughter. That is where there is an intention to cause at least bodily harm - grievous bodily harm - but the conduct, or some act or series of acts on the part of the deceased person has been such as is likely to cause a reasonable person to be so rendered subject to passion or loss of control as to be led to use the violence which results in the death and does in fact lead the accused to use such violence. Now, if that happens, then the crime is reduced from murder to manslaughter; and that may happen even where there is an actual intention to kill if the intention arose from a loss of self control in the accused by reason of provocation in the way in which I have defined provocation. Such provocation must have been such that it might have caused a reasonable person to use the violence which the accused used and it did in fact cause the accused to use that violence. You have to discriminate between an act done in the heat of passion which is provoked by such conduct and an act which is done in retaliation for such conduct. That is why the law talks of a cooling off time and that is why it talks of the reasonable man. Some conduct may cause even a reasonable person to get into a fury; but if there is time for him to think about it, he will not do the act which causes the death; and anyone who does do that act is doing it in retaliation, not in the heat of provocation. That is where the cooling off time is important.

But, in the case of this accused, if you find it reasonably possible that he was acting under provocation such as would have caused a reasonable man to act as he acted and such as did cause him to act as he did act, then he is to be convicted of manslaughter and not murder, even though you may find not only that he killed his wife, but that he intended to kill her. You may find that he killed his wife, he didn't intend to kill her, he intended to do her some harm, he intended to do her grievous bodily harm, but if you think it reasonably possible that he was acting under provocation in the sense which I have described, that is sufficient to find him guilty of manslaughter and not murder. In considering whether a reasonable man would have been so provoked as to commit an act of violence which led to this death, you will consider the whole of the acts or conduct alleged to constitute provocation in deciding whether this accused had time to cool off after the provocation - if you decide there was any provocation - or whether the whole conduct of the victim was such - as has been said before - as might heat the blood to a proportionable degree of resentment and keep it boiling until the moment of the act. So that one of the factors that you have to take into account in evaluating the actions of the accused is what you believe was the provocation, if you find there was any provocation, and what was the act - what was the degree of violence of the act; because you will have to decide if you think that there was provocation whether the act was one of revenge - which would amount to murder - or an act done in the heat of the moment, which reduces the crime to manslaughter. To take a silly example - if someone steps on the toe of another deliberately, and the other person hits him across the face, you may say, "Well, he was provoked into doing it". But if, when his toe is stepped on, he draws his revolver and shoots the person who steps on his toe, I doubt whether you would think that that was sufficient provocation to reduce the crime of murder to manslaughter. That is why you have got to look at the acts which you may think amount to provocation and look at what was done in order to decide whether what was done was retaliation - which is murder - or whether it was done under such stress as to amount to manslaughter.

The judge devoted a considerable part of the summing up to indicating available criticisms of the applicant's evidence, with constant emphasis upon the need for the jury to believe what he had said in his statement in the Court and on several occasions counselling them to look for corroboration of parts of that statement. The judge said:

and you then come back once again to the question - "Did she so provoke him as to reduce this from murder to manslaughter?"

Well, one of the things of course that you will do is that you will consider what he said when he first spoke to other people and what he has said to you, because you have to decide whether what he has said to you could reasonably possibly be true. If you believe that he is not telling you the truth, then you may find it difficult to find anything other than that he intended to kill her and that he was not sufficiently provoked for it to amount to manslaughter.

At another point, the judge said: If, of course, you don't believe she said what he said she said on the last day about screwing everyone in the street, if you don't believe that provoked him into killing her, do you believe that in fact it was because she wanted a divorce, because he says she wanted more money than he was able to give her? After discussing the applicant's evidence as to the events of the morning of the killing, the judge said: You will doubtless find that such things would not provoke a reasonable man to inflict the injuries which this man inflicted upon his wife and is not enough provocation sufficient to reduce murder to manslaughter.

Of course, if a jury does not believe the account of the accused of the matters which are suggested to constitute provocation, it may be said that the Crown has satisfied the onus of establishing that the killing was unprovoked. But their function is not merely to weigh the accused's credit. If the accused's account is a reasonably possible account - and that is the first step they must take - they must in substance be satisfied beyond reasonable doubt that those events did not happen. Disbelief of the accused may not in all circumstances compel that satisfaction to the requisite degree. Thus, the continual emphasis in this summing up upon criticism of the accused's statement and the need to believe it, at least tended to give the impression that the accused bore an onus of in fact establishing those events.

In making these observations upon the summing up, I am not unmindful of the considerable difficulty faced by a trial judge in ensuring, on the one hand, that the onus is properly expressed and, on the other, that the jury are assisted in their difficult task of examining the facts in relation to each necessary ingredient of operative provocation. But, allowing for the difficulty, I am clearly of opinion that this summing up failed properly to instruct the jury as to the onus of proof, if the possibility of provocation reasonably appeared. For this reason, being of the view that provocation was open upon the facts of the case, the conviction for murder cannot stand.

Having reached that conclusion, it is unnecessary for me to deal with the other submissions. No doubt for the future, having regard to this Court's decision in Johnson v. The Queen [1] , the place of proportionality in provocation will be clearly left to a jury. It might not be out of place, however, for me to remark that the antithesis of "provocation" and "retaliation" does not seem apt in explaining the legal situation to a jury. It may be correct on an occasion when there is a long interval of time between the acts said to be provocative and the killing that the latter wears the aspect of cold-blooded retaliation rather than hot-blooded response. But in a case such as the present the antithesis - and, indeed, the emphasis on a cooling off period - would seem to me more to confuse than to enlighten.

There remains the question whether there should be a new trial or whether we should adopt the course taken in Johnson v. The Queen. The Crown was asked to indicate whether, in the event that the Court was of opinion that the conviction for murder could not stand, it would insist upon a new trial. We have been informed that, in the circumstances of the case, the Crown does not do so. Accordingly, in my opinion, the conviction for murder should be set aside and a conviction for manslaughter substituted, there being no basis on which the accused could be acquitted.

The applicant was convicted of the murder of his wife. He now seeks special leave to appeal from the judgment of the Court of Criminal Appeal of South Australia which dismissed an appeal from his conviction [2] .

At the trial the applicant did not dispute that he had killed his wife. She died as a result of injuries received when, using considerable force, he struck her a number of blows to the head and neck with a piece of iron piping. His case was that the killing was provoked and that the proper verdict was guilty of manslaughter. On the application before us it was conceded that on the evidence it was open to the jury to find the applicant guilty of murder. It was, however, submitted that the learned trial judge (Mitchell J.) had misdirected the jury, and that for that reason there had been a miscarriage of justice.

The summing up was said to be defective in three respects. First, it was submitted that the law as to provocation was not adequately explained to the jury. It was contended that the effect of the summing up was to tell the jury that it is a separate and distinct element of provocation that the acts of the accused ("the retaliation") should have been proportionate to the provocation offered by the deceased. If the learned trial judge did instruct the jury to that effect, her direction would have been erroneous. The law on that question is now established by the decision of this Court in Johnson v. The Queen [3] . Alternatively it was submitted that the learned trial judge suggested to the jury that they should consider whether the retaliation was proportionate to the provocation only for the limited purpose of deciding whether there was time for the applicant's passion to cool. Again it would have been erroneous to tell the jury that the relationship of the retaliation to the provocation should be considered for so limited a purpose. The law on this matter generally is sufficiently discussed in Johnson v. The Queen. Secondly, it was submitted that the learned trial judge instructed the jury inadequately as to the onus of proof. There is of course no doubt that in South Australia, where the rules of the common law on this matter remain unaffected by statute, the burden of proving beyond reasonable doubt that the act which caused the death was unprovoked lies on the Crown. The submission made on behalf of the applicant was that this was not made clear to the jury. Finally, it was argued that the summing up was unbalanced and unfair and did not adequately present the case for the defence of the applicant. No objection was taken to the summing up at the trial on these, or indeed on any, grounds, but for reasons which I am about to give I do not find it necessary to analyse the summing up for the purpose of deciding whether it contained any of the defects which counsel for the applicant submits will be found in it.

It is now well settled that at common law homicide will not be extenuated to manslaughter by reason of the fact that the act which caused death was done in the heat of passion, involving loss of self-control, caused by provocation, unless the provocation was sufficient to make a reasonable person do what the accused did. In considering a question of provocation, it is necessary to apply both a subjective and an objective test - did the provocation in fact cause the accused to lose his power of self-control, and could a reasonable person so provoked have lost his self-control and acted as the accused did? I have throughout this judgment referred to a "reasonable person", in conformity with the usage of many of the authorities, but in this context a "reasonable person" obviously does not mean one who acts reasonably, but one who has reasonable powers of self-control, and the expression "ordinary person" may be preferable. Although the onus of establishing that the killing was not provoked lies on the Crown, it is a question for the decision of the judge whether there is evidence upon which a jury could reasonably return a verdict of manslaughter on the ground of provocation, and it is established that a trial judge should withdraw an issue of provocation from the jury if the evidence could not reasonably support the conclusion that the provocation was of such a character as could have deprived a reasonable person of the power of self-control to such an extent as to lead him to do what the accused did. In Holmes v. Director of Public Prosecutions [4] , Viscount Simon said:

In dealing with provocation as justifying the view that the crime may be manslaughter and not murder, a distinction must be made between what the judge lays down as matter of law, and what the jury decides as matter of fact. If there is no sufficient material, even on a view of the evidence most favourable to the accused, for a jury (which means a reasonable jury) to form the view that a reasonable person so provoked could be driven, through transport of passion and loss of self-control, to the degree and method and continuance of violence which produces the death it is the duty of the judge as matter of law to direct the jury that the evidence does not support a verdict of manslaughter. If, on the other hand, the case is one in which the view might fairly be taken (a) that a reasonable person, in consequence of the provocation received, might be so rendered subject to passion or loss of control as to be led to use the violence with fatal results, and (b) that the accused was in fact acting under the stress of such provocation, then it is for the jury to determine whether on its view of the facts manslaughter or murder is the appropriate verdict. That passage has been cited with approval again and again, in England and in Australia, and is supported by the views expressed recently in this Court in Johnson v. The Queen. In applying the test there is, however, a practical difference between the approach of a trial judge and that of an appellate court. "A judge is naturally very reluctant to withdraw from a jury any issue that should properly be left to them and he is therefore likely to tilt the balance in favour of the defence. An appellate court must apply the test with as much exactitude as the circumstances permit": Lee Chun-Chuen v. The Queen [5] . 1. [1946] A.C. 588, at p. 597. 2. [1963] A.C. 220, at p. 230.

The question then arises in the present case whether a jury would have been justified in forming the view that the provocation offered to the applicant could have led a reasonable person to the sort of violence which the applicant in fact used. The version of facts most favourable to the applicant was that which he himself gave in his unsworn statement from the dock. The statement is a long one and it is unnecessary to attempt to repeat the effect of all that the applicant said about his relationship with his wife before 21st August 1975, the day that she was killed. The applicant was born in Italy in 1926 and has lived in Australia since 1952. He married the deceased in 1957. She was about fifteen years younger than he. They had three children. In 1975 the applicant visited Italy for a month. On his return he found his wife indifferent to him. During a period of more than a month before 21st August she refused sexual intercourse, although she gave the state of her health as the reason for that. She also frequently told him that she had ceased to love him and planned to leave him. This upset him greatly and during this period he frequently pleaded and expostulated with her. On the night of 20th August he talked with her throughout most of the night praying and begging her not to leave. On the following morning he resumed this conversation in the bedroom of their home. At this point it is desirable to give in his own words his account of what occurred:

She said "Mick, don't you understand? I don't want to look at you any more. I'm not going to stop with you."

I said "Kay, this is no bloody good to do these sort of things. All the people around here will make a very bad name."

She said "I don't care about these other people around here."

As I went near her she said "Don't come near me - I'll scratch your eyes out."

She said "Don't you understand. I don't love you any more, I don't want to look at your face any more. Don't you understand I've been enjoying myself screwing with everybody on the street. You fucking bastard. You understand that all right?"

At this point she took the photographs from her drawer and she said "If you want to look at me, look at the pictures" and threw them at me.

I said "Why have you done this? You promised you would never do it."

I said "Kay, why have you done this to me?" and I started to cry.

When I was crying she was laughing at me and she said "Get out you black bastard."

I then lost control and I remember going out to the back of the house.

I came in and I said "Is this what you want? You force me to do it."

When she saw me she said "I'm not scared of you, you fucking bastard."

I pulled the door shut but I don't remember locking it.

Somewhere between leaving the house and arriving at Lenzi's I threw the pipe away.

I went to Lenzi's first because I wanted him to look after the children.

It should be explained that it appears from one of the photographs exhibited in evidence that the telephone was attached to a cord which plugged into a socket and that the plug had been pulled out. The photographs that the deceased produced and threw at her husband were photographs of the deceased herself; most of them showed her naked, and in some of them she was posed in a way that was apparently intended to be provocative, in a different sense of that word. At the trial the applicant admitted that he himself had taken some of those photographs, but he denied that he had taken them all.

The statement made by the applicant suggests that it was the fact that the deceased threw the telephone at him that finally caused him to lose control. There is no evidence that the telephone hit the applicant or that the deceased offered him any other violence. However, it is no doubt right to infer that the throwing of the telephone was only the last straw that caused the applicant's control to collapse. In any case, in deciding whether there is sufficient evidence of provocation, it is necessary to have regard to the whole of the deceased person's conduct at the relevant time, for acts and words which considered separately could not amount to provocation may in combination, or cumulatively, be enough to cause a reasonable person to lose his self-control and resort to the kind of violence that caused the death. Everything that the deceased said and did on 21st August must therefore be considered in deciding whether there was provocation.

In Holmes v. Director of Public Prosecutions [7] the House of Lords authoritatively expounded the rules of the common law on the question whether provocation can be constituted by "mere words". At the time when that case was decided it was already settled that insulting or abusive language (not being menace of immediate bodily harm) could not reduce murder to manslaughter [8] . The law was not so clear as to whether words used as a means of conveying information might constitute provocation. As to this, their Lordships held that a confession of adultery - even a sudden confession - without more is never sufficient to reduce to manslaughter an offence which would otherwise be murder [9] . This rule has been affected by statute in some places but it is still the rule of the common law: see Phillips v. The Queen [10] and Reg. v. Tsigos, per Walsh J. [11] . Their Lordships added that "in no case could words alone, save in circumstances of a most extreme and exceptional character, so reduce the crime. When words alone are relied upon in extenuation, the duty rests on the judge to consider whether they are of this violently provocative character, and if he is satisfied that they cannot reasonably be so regarded, to direct the jury accordingly."

1. [1946] A.C. 588. 2. [1946] A.C., at p. 599. 3. [1946] A.C., esp. at p. 600. 4. [1969] 2 A.C. 130, at p. 137. 5. [1964-65] N.S.W.R. 1607, at p. 1610.

In the light of this authority, I find it impossible to hold that the evidence in the present case raised an issue of provocation fit to be considered by a jury. It was not open to a jury to find that a reasonable man could have been provoked by the words and actions of the deceased to such an extent as to use the violence to which the applicant resorted. The question has to be decided in the light of contemporary conditions and attitudes, for what might be provocative in one age might be regarded with comparative equanimity in another, and a greater measure of self-control is expected as society develops. The words of the deceased on 21st August, although calculated to disturb or enrage, were not of that "violently provocative" character which might lead a reasonable man to lose his self-control and resort to violence causing death - a character which words alone would possess only in an extreme and exceptional case. According to the applicant's statement (which it must be assumed would be accepted), the deceased repeated, what she had previously been saying, that she did not love her husband and intended to leave him; she admitted that she had promiscuously committed adultery, and she uttered some vulgar abuse. The confession of adultery may have been the more disturbing because of the production of the photographs, but the jury could not have disregarded the fact that the applicant himself had taken some of those photographs. The only act of violence committed by the deceased was the throwing of the telephone, which was not likely to cause serious harm or apprehension to the applicant, and so far as the evidence discloses did not do so. Accepting the view of the facts most favourable to the applicant, the words and acts of the deceased were not such as could have caused a reasonable man to act as the applicant did.

Since the issue of provocation should not have been left to the jury, any misdirection on that issue could not have caused a miscarriage of justice: see Lee Chun-Chuen v. The Queen [12] . The applicant was rightly convicted of murder. Special leave to appeal should in my opinion be refused.

The grounds for this application for special leave to appeal disclose little that is debatable in point of law. The applicant's killing of his wife was not in issue; in his unsworn statement made to the jury he described how he came to kill her. That the killing was felonious is also not in issue, but it is said that her words and conduct amounted to provocation such as would serve to reduce the killing from murder to manslaughter.

Were the issue of provocation one proper to be left to the jury I would agree with all that is said by the Chief Justice concerning the learned trial judge's charge to the jury; it was such as would call for the grant of special leave and, in the light of the attitude of the Crown, the substitution of a conviction for manslaughter for that of murder. If, on the contrary, no such issue should have been left to the jury no ground would then exist for disturbing the jury's verdict, despite the defects in the charge.

I can confine myself to the applicant's unsworn statement, which is the version of the facts most favourable to his case and which, for present purposes, I assume that a jury would have accepted. (I do not stay to consider whether the jury could in fact accept that part of the applicant's statement which related to the production by his wife of photographs of herself; it plays, after all, a relatively minor role in this question of provocation). After describing in detail the rather troubled course of his married life, in which he featured as the industrious, generous and forgiving spouse and his wife as his inconstant, ungrateful and spendthrift partner, the applicant comes to the events of the morning on which he killed her and of the preceding night. She having, for some considerable time before that, refused him intercourse and having told him she was leaving him, he spent, he says, much of the night before seeking a reconciliation, begging her not to leave, but all to no end. He did not sleep at all and had been humiliated by her cold rejection of him. It may be inferred that he was in a strained and highly emotional state next morning, exhausted by his sleepless night and frantic at the imminent prospect of his wife's departure.

In those circumstances, when he renewed his plea to her to stay and sought to approach her to caress her, she threatened to scratch his eyes out if he did and told him in the coarsest, and no doubt the most provocative, of language that she had been having intercourse "with everyone on the street"; she threw at him photographs of herself which the jury might have understood to have been taken, unknown to the applicant, by another man, and to be obscene, inviting him to look at them if he wanted to look at her. He "became very mad", asked her why despite past promises she had done "this" and wept, but she merely laughed, called him a "black bastard" and threw a telephone at him. He then "lost control", went outside, returned with a length of pipe and, after exchanging a few words, when she swore at him again, hit her a number of times. As a result she died.

It is essentially upon what the deceased was thus described as saying and doing that the case of provocation is founded. Minds may well differ, as they have in this case, upon what is sufficient to constitute provocation when what is in question is a combination of words describing past conduct, words of abuse and some physical violence. Here the element of physical violence was relatively slight, there is in fact no suggestion that the applicant was struck by the telephone. The element of abuse I can only regard as of little weight; in part it was common, meaningless obscenity, only the reference to colour possibly having a sting when spoken by this Australian wife to her Italian husband. There remains the admission, or rather the boast, about having had intercourse with everyone on the street. This is to be judged in the context of and cumulatively upon both the other two matters and the events leading generally up to the killing. The question to be asked is whether it would have been open to a jury to conclude on this material that a reasonable, or ordinary, man might, in such circumstances suffer such a loss of self-control as to act as the applicant did. It is clear, as the applicant said, if believed, that this in fact happened to him; it is the objective test, what effect it might have upon an ordinary man, that is in question.

In answering this question one bears in mind that no mere confession of adultery, however sudden, suffices (Holmes v. Director of Public Prosecutions [13] ). Words alone, whether in themselves insulting or obscene or which recount a necessarily provocative event or fact, would, as Viscount Simon there said, have to involve "circumstances of a most extreme and exceptional character" if they were to reduce murder to manslaughter.

The deceased in this case, the jury might believe, did not simply admit to an adulterous relationship, she boasted of wholesale promiscuity with the men in the suburban street where she and her husband lived and had brought up their family; she showed no contrition although, according to the applicant, she was a much loved and well treated wife and the mother of his children; she combined her boast with abuse and with some show of violence; all this despite night-long and abject avowals of devotion by the applicant. If the jury were to accept this version of the matter I cannot for myself say that they might not properly conclude that an ordinary man might be so provoked as to lose self-control and act as the applicant said he did.

It follows from this conclusion that provocation was an issue properly left to the jury. In these circumstances, as I have already said, I can only regard the charge to the jury as defective and this for the reasons expressed in the judgment of the Chief Justice.

In view of the attitude of the Crown no new trial need be ordered; instead the appeal may be allowed, a conviction of manslaughter being substituted for that of murder.

In his summing up to the jury in Reg. v. Rothwell Blackburn J. said [14] :

As a general rule of law, no provocation of words will reduce the crime of murder to that of manslaughter, but under special circumstances there may be such a provocation of words as will have that effect; for instance, if a husband suddenly hearing from his wife that she had committed adultery, and he having had no idea of such a thing before, were thereupon to kill his wife, it might be manslaughter. 1. (1871) 12 Cox C.C. 145, at p. 147.

Subsequently in Holmes v. Director of Public Prosecutions [15] , the House of Lords decided that a sudden confession of adultery by a wife could not amount to provocation. Viscount Simon (with whom the other members of the House of Lords agreed) said [16] :

the duty of the judge is to tell the jury that a confession of adultery without more is never sufficient to reduce an offence which would otherwise be murder to manslaughter, and that in no case could words alone, save in circumstances of a most extreme and exceptional character, so reduce the crime. When words alone are relied upon in extenuation, the duty rests on the judge to consider whether they are of this violently provocative character, and if he is satisfied that they cannot reasonably be so regarded, to direct the jury accordingly. 1. [1946] A.C. 588. 2. [1946] A.C., at p. 6??

The precise point on which the House of Lords disagreed with Blackburn J., that is, whether a sudden confession of adultery is enough in itself to constitute provocation, we may put to one side because what the wife said to the applicant in the present case went far beyond that. What is important for present purposes is the acknowledgment by Blackburn J. that "in special circumstances" and by Viscount Simon that "in circumstances of a most extreme and exceptional character" words may amount to provocation reducing the crime from murder to manslaughter.

There is no absolute rule against words founding a case of provocation. The existence of such an absolute rule would draw an arbitrary distinction beween words and conduct which is insupportable in logic. No doubt provocative acts justifying the reduction of murder to manslaughter are more readily imagined and more frequently encountered than provocative words which justify the same result. Violent acts, rather than violent words, are more likely to induce an ordinary person to lose his self-control. And a case of provocation by words may be more easily invented than a case of provocation by conduct, particularly when the victim was the wife of the accused. There is, therefore, an element of public policy as well as common sense in requiring the close scrutiny of claims of provocation founded in words, rather than conduct.

The observations of Blackburn J. and Viscount Simon to which I have referred are salutary warnings against a too ready acceptance of claims of provocation based on words alone. They emphasize the necessity for compliance with the demanding requirements which underlie the concept of provocation.

In Parker v. The Queen Dixon C.J. said [17] : "I do not think that the criteria of "provocation" should nowadays be expressed in terms directed to duels and personal quarrels among men who ordinarily bear arms or to violence produced by violence." On appeal [18] the Judicial Committee held that the existence of an intention to kill does not necessarily negative a case of provocation reducing murder to manslaughter, although their Lordships acknowledged that existence of a premeditated intention so to do before the provocation occurred would have that effect. It was decided that in the circumstances of the case the interval of time between the provocation and the act causing death was not fatal to the case of provocation.

1. (1963) 111 C.L.R. 610, at p. 630. 2. (1964) 111 C.L.R. 665; [1964] A.C. 1369.

It was for the jury to determine what was the "act causing death": it was for them to determine whether it was done suddenly in the heat of passion caused by provocation and without intent to take life. It was for them to consider the nature and duration of the provocation and whether it was reasonably calculated to deprive an ordinary person of the power of self-control and whether the appellant was so deprived and whether he continued to be so deprived at the time that he committed the act causing the death of the deceased. The jury might well have taken the view that the appellant was tormented beyond endurance. His wife, whom he loved, was being lured away from him and from their children despite protests, appeals and remonstrances. In open defiance of his grief and his anguish his wife was being taken by one who had jeered at his (the appellant's) lesser strength and who had spoken with unashamed relish of his lascivious intents. Though there was an interval of time between the moment when the appellant's wife and the deceased went away and the moment when the appellant overtook them and then caused the death of the deceased a jury might well consider, and would be entitled to consider, that the deceased's whole conduct was such as might "heat the blood to a proportionable degree of resentment, and keep it boiling to the moment of the fact" (see East's Pleas of the Crown, vol. 1, p. 238). 1. (1964) 111 C.L.R., at p. 679; [1964] A.C., at p. 1389.

The questions for the jury here, then, were whether the acts relied upon by the applicant were reasonably calculated to deprive an ordinary man of the power of self-control, whether they in fact did so deprive the applicant and whether he continued to be so deprived at the time he struck the deceased with the pipe. The question for us is whether it can be said that no reasonable man could answer these questions favourably to the applicant in light of the account of the relevant events given by him at the trial. For my part, I feel some diffidence in predicting with assurance how an ordinary man placed in the applicant's situation might react if he were confronted with the occurrences on which the applicant relied. I am not prepared to say that no reasonable man could conclude that an ordinary man would be so deprived of his power of self-control by what occurred as to form an intention to kill or do grievous bodily harm to his wife.

If the applicant's version of events is to be believed, and we must make this assumption, his wife's remarks went far beyond a confession of adultery, even a sudden confession of adultery. What she said and did is related in the judgment of Gibbs J. and I see no need to examine in any detail the precise effect of her remarks or indeed to characterize them by an adjectival description except to say that to my mind they amount to words which are "violently provocative in character". What is more, they were in my opinion so provocative that they might well so enrage an ordinary man beyond endurance as to goad him into impulsive action of a most drastic kind. Beyond expressing this conclusion I see no advantage in speculating upon the particular feelings or emotions which the wife's words and conduct might inspire. It is enough to say that in my opinion a jury could reasonably take the view that the words and conduct were so provocative as to cause an ordinary man to lose his power of self-control and that they had this effect in the instant case.

Accordingly, the issue of provocation was a proper one to go to the jury. Having arrived at this conclusion I agree with the Chief Justice in thinking that the summing up was defective and that in other circumstances a new trial should be ordered. However, it is appropriate in this case that in lieu of an order for a new trial a conviction for manslaughter should be substituted for the conviction for murder. The Solicitor-General for South Australia has raised no objection to our taking this course in the event that the Court finds the summing up to be defective.

In the result, I would grant special leave to appeal, allow the appeal and substitute a conviction of manslaughter for that of murder.

After a jury trial before Mitchell J. in the Supreme Court of South Australia, the applicant, Michele Moffa, was convicted of murdering his wife. He appealed to the Supreme Court (Criminal Appeal jurisdiction) on the ground that the trial judge had not directed properly on the issue that there was provocation reducing the murder to manslaughter. His appeal was rejected and he now seeks special leave to appeal to this Court.

The accused admitted killing his wife, but claimed he did so under provocation. In his lengthy statement from the dock, he outlined his history. He was born in Italy in 1926, had an early marriage to an Italian (which ended in divorce) and migrated to Australia in 1952. He married the deceased (who was born in Australia) about seventeen years ago and they had three children. He worked hard as a builder. His marriage was happy, then there were several separations and reconciliations. After he spent a month in Italy in 1975 with his dying mother, his wife ceased to show any affection for him and, for a month before he killed her, repeatedly told him she intended to leave him. On the morning of 21st August 1975, after he had pleaded with her all night to remain, she said she was finished with him and repulsed his attempts to caress her. She said, "Don't come near me. I'll scratch your eyes out". She grabbed at him and he pushed her away. She said, "Don't you understand, I don't love you any more. Don't you understand I've been enjoying myself screwing with everybody on the street. You fucking bastard. You understand that all right". She then said, "If you want to look at me, look at the pictures" and threw some nude photos of herself at him. He became "very mad", remonstrated with her and began crying. She laughed at him, said, "Get out you black bastard", and threw the telephone at him. He lost control, went to the back of the house, picked up a piece of iron pipe, came back and said to her, "Is this what you want - you force me to do it". She said, "I'm not scared of you, you fucking bastard". He then hit her, lost control and hit her again. He apparently hit her a number of times, but could not remember how many.

(1) The trial judge did not give a clear and unequivocal direction that the onus was on the prosecution to prove beyond reasonable doubt that the killing was unprovoked;

(2) The trial judge wrongly directed that the response by the accused must be a reasonable or proportional response to the provocation. Alternatively, the trial judge wrongly directed that proportionality of response was to be regarded only in relation to whether there was time for the applicant to regain his self-control;

(3) The trial judge was unfair in her treatment of the applicant's claim of provocation.

The prosecution contended that there was no evidence of provocation and any error by the trial judge was immaterial because, firstly, the substantial provocative conduct alleged here was the use of mere words which is not sufficient and, secondly, the alleged provocative conduct was not enough to cause a reasonable (or ordinary) man to do as the applicant did (the "reasonable" or "ordinary" man test, often referred to as the objective test).

Common law provocation. In South Australia, the law of provocation is entirely decisional. We are not bound by statutory directions as we were in Johnson v. The Queen [20] . Provocation is a defence to murder (and arises when the elements of murder are present). The defence is that the accused killed because the deceased's provocative conduct caused him to lose self-control. This basic formulation of the defence is often referred to as the subjective test (the behaviour of the accused is considered without reference to objective standards).

Provocative conduct has generally been regarded as involving physical violence. The refusal to recognize provocation by words or gestures is no longer justifiable, although it may have been on public policy grounds when the practice of carrying weapons and duelling persisted.

Rulings on whether certain words amount to provocation reflect the attitudes of society, or even of particular judges. For example, a sudden confession of adultery was sufficient provocation in Reg. v. Rothwell [21] , but no in Holmes v. Director of Public Prosecutions [22] . Such rulings are a by-product of the reasonable man test.

1. (1871) 12 Cox C.C. 145. 2. [1946] A.C. 588.

The " reasonable " or " ordinary " man test. This test requires the accused's behaviour to be of the standard which a reasonable or ordinary man would exhibit. This is used in addition to the subjective test.

Provocation was originally treated as a question of law but, for some time before the invention of the reasonable man test, it was treated as a question of fact for the jury (see R. v. Lynch [23] ; R. v. Hayward [24] ; R. v. Thomas [25] ; Russell on Crime, 12th ed. (1964), Ch. 29). The test appeared at least by 1837 when Coleridge J. stated:

Though the law condescends to human frailty, it will not indulge human ferocity. It considers man to be a rational being and requires that he should exercise a reasonable control over his passions. (Reg. v. Kirkham [26] .) Its invention, however, is usually credited to Keating J. who directed that: There must exist such an amount of provocation as would be excited by the circumstances in the mind of a reasonable man, and so as to lead the jury to ascribe the act to the influence of that passion. (Reg. v. Welsh [27] .) This was approved in R. v. Alexander [28] and R. v. Lesbini [29] , and the test has been applied in cases such as Mancini v. Director of Public Prosecutions [30] ; Holmes v. Director of Public Prosecutions [31] ; Bedder v. Director of Public Prosecutions [32] ; and Lee Chun-Chuen v. The Queen [33] . 1. (1832) 5 C. & P. 324 [172 E.R. 995]. 2. (1833) 6 C. & P. 157 [172 E.R. 1188]. 3. (1837) 7 C. & P. 817 [173 E.R. 356]. 4. (1837) 8 C. & P. 115, at p. 119 [173 E.R. 422, at p. 424]. 5. (1869) 11 Cox C.C. 336, at p. 338. 6. (1913) 23 Cox C.C. 604. 7. [1914] 3 K.B. 1116. 8. [1942] A.C. 1. 9. [1946] A.C. 588. 10. [1954] 1 W.L.R. 1119; [1954] 2 All E.R. 801. 11. [1963] A.C. 220.

Objections to the Test. The test cannot withstand critical examination. It is not clear whether the reasonable or ordinary man, if he were subject to the same provocation, would (or might) lose control, or would have lost control to the extent of killing the deceased, or would have lost control to the extent of killing in the manner he did. Is he a complete stranger subjected to the provocative conduct, or a person in the same circumstances as the accused? To be in the same circumstances, he should be taken to be in the same relationship with the deceased (in this case, a marital relationship) and must have experienced the relationship. In a case such as this, he should have lived the life of the accused, or it would be impractical to speak of what a reasonable or ordinary man would do in the circumstances. For example, it might have been an unbearable insult to a person of the accused's origin to be called a "black bastard". Once the full circumstances are taken into account, the objective test disappears because it adds nothing to the subjective test. For this reason, those who adhere to the objective test have rigidly excluded individual peculiarities of the accused (e.g. low intelligence, impotence, pugnacity).

The objective test is not suitable even for a superficially homogeneous society, and the more heterogeneous our society becomes, the more inappropriate the test is. Behaviour is influenced by age, sex, ethnic origin, climatic and other living conditions, biorhythms, education, occupation and, above all, individual differences. It is impossible to construct a model of a reasonable or ordinary South Australian for the purpose of assessing emotional flashpoint, loss of self-control and capacity to kill under particular circumstances. In the Northern Territory Supreme Court, Kriewaldt J. refused to apply the test to a tribal aborigine and used the standard of the accused's tribe (see Colin Howard, What Colour is the Reasonable Man? [1961] Criminal Law Review, p. 41). The Judicial Committee of the Privy Council stated in Kwaku Mensah v. The King [34] that the test for provocation was that of "the ordinary West African villager" and that "on just such questions the knowledge and commonsense of a local jury are invaluable" (see also Rankin [35] ). The same considerations apply to cultural sub-groups such as migrants. The objective test should not be modified by establishing different standards for different groups in society. This would result in unequal treatment.

1. [1946] A.C. 83, at p. 93. 2. (1966) 60 Q.J.P.R. 128.

The objective test should be discarded. It has no place in a rational criminal jurisprudence. It has been subjected to widespread, severe and, in my opinion, valid criticism (see Russell on Crime, 12th ed. (1964), Ch. 29; Samuels, Excusable Loss of Self Control in Homicide, Modern Law Review, vol. 34 (1971), p. 163; Morris and Howard, Studies in Criminal Law (1970); Smith and Hogan, Criminal Law, 2nd ed. (1969), p. 215; Brown, The Ordinary Man in Provocation: Anglo-Saxon Attitudes and Unreasonable Non Englishman International & Comparative Law Quarterly, vol. 13 (1964), p. 223; Glanville Williams, Provocation and the Reasonable Man, [1954] Criminal Law Review, p. 740). It received only a partial defence by Dr. Ashworth who concedes that the accused's personal characteristics should be considered by the court, but not individual peculiarities bearing on his level of self-control ("The Doctrine of Provocation", Cambridge Law Journal, vol. 35 (1976), p. 292). I share the view of Lord Simonds that the distinction is too refined (Bedder v. Director of Public Prosecutions [36] ), but the insistence on the rigid application of the test leads to what Dr. Glanville Williams observed: "It is difficult to see how this test, intelligently understood and applied, can ever give rise to an acquittal of murder." ("Provocation and the Reasonable Man", p. 750). In such an application of the test, the ordinary or reasonable man simply does not kill if he is provoked.

Much of the opposition to discarding the objective test is based on the assumption that this will undermine the social fabric and cheapen the value of human life. It is easily overlooked (see Brown, loc cit., p. 230) that the defence is only to murder, and its success results in a conviction for manslaughter (for which the maximum punishment is currently imprisonment for life). The law of provocation is concerned with unreasonable behaviour, killing committed by a person who has lost self-control and temporarily deserted the standards of civilized conduct. It degrades our standards of civilization to construct a model of a reasonable or ordinary man and then to impute to him the characteristic that, under provocation (which does not call for defence of himself or others), he would kill the person responsible for the provocation.

Taking the issue of provocation from the jury. It has been said of the reasonable man test that:

The most disagreeable consequence of its application over the forty year period prior to the Homicide Act has been its part in the substantial restoration of the early position where provocation was entirely a matter of law for the judge. For a feature of the modern common law doctrine has been the Bench's readiness to exclude from the jury evidence of provocation which it regards as insufficient to reduce the crime to manslaughter. (Brown, loc. cit., p. 206).

The Full Court of the Supreme Court of South Australia rejected the appeal on the basis that, even if the directions on provocation were wrong, the trial judge should have directed the jury that in law there was no evidence of provocation fit for the jury's consideration. This was an application of the objective test which, as I have said, has no place in provocation.

The trial judge was correct to leave the question of provocation with the jury. Even if the objective test were applied, the accused's statement could be regarded by the jury as amounting to: "I am an ordinary reasonable man. I killed my wife only because she provoked me so much that I lost self-control." This is evidentiary material that, if accepted, satisfies the objective test. If the judge decided that no ordinary or reasonable man could (or would) have so acted, she would be in effect forming an opinion that the accused is not an ordinary or reasonable man, and treating this opinion as conclusive. To take away the issue of provocation in these circumstances would be to usurp the function of the jury.

Reasonable retaliation. It is not essential to the defence that there be proportionate retaliation (a reasonable proportion) between the killing or the manner of killing and the provocative conduct (Johnson v. The Queen [37] ). Viscount Simon's statement in Mancini v. Director of Public Prosecutions that "the mode of resentment must bear a reasonable relationship to the provocation" is not the law in South Australia. It expresses in a different way one version of the same objective test (that a reasonable or ordinary man would, in the circumstances, have lost his control to the extent of killing in the way he did). Proportionality in the sense of the nature or degree of the response is of course relevant to whether the killing occurred while the accused was out of control because of the provocation (see Johnson v. The Queen [37] ).

1. (1976) 136 C.L.R. 619. 2. (1976) 136 C.L.R. 619.

Cooling-off period. There is no requirement that there must not have been time to cool off or regain self-control. The interval between provocation and the killing may, but need not, be short and I see no reason why intermediate temporary regaining of control should exclude the defence. These considerations are no doubt relevant to the real question whether the killing was done in the passion or the fury (that is, because of loss of self-control) brought about by the provocation.

Onus of proof. The onus is on the prosecution to establish beyond reasonable doubt that the killing was unprovoked (Woolmington v. Director of Public Prosecutions [39] ). Although, as Lord Sankey said there, "It is sufficient if the accused raises a doubt", it is not necessary for the accused to do this. The directions by the trial judge were defective in failing to make this clear. The prosecution contended that, even so, the appeal should be dismissed as there was no substantial miscarriage of justice. This contention must be rejected:

every accused person is entitled to a trial in which the relevant law is correctly explained to the jury and the rules of procedure and evidence are strictly followed. If there is any failure in any of these respects, and the appellant may thereby have lost a chance which was fairly open to him of being acquitted, there is, in the eye of the law, a miscarriage of justice. Justice has miscarried in such cases, because the appellant has not had what the law says that he shall have, and justice is justice according to law. Mraz v. The Queen, per Fullagar J. [40] ). There is no need to consider the other grounds. 1. [1935] A.C. 462. 2. (1955) 93 C.L.R. 493, at p. 514.

The conviction for murder cannot stand. The applicant's case is that he was guilty of manslaughter only. Special leave to appeal should be granted. The appeal should be upheld and the conviction for murder set aside and replaced by a conviction for manslaughter.