Moffa v The Queen

[1977] HCA 14

High Court of Australia|1977-03-04|Before: Murphy JJ

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Court

High Court of Australia

Decision date

1977-03-04

Before

Murphy JJ

Source

Original judgment source is linked above.

Judgment (93 paragraphs)

[1]

The applicant's account of the critical events of the morning of 21st August, the day of the death of the deceased, is set out in the reasons for judgment to which I have referred. The totality of the deceased's conduct on that occasion, according to that account, was that there was vituperative and scornful rejection of the applicant's connubial advances, a contemptuous denial of any continuing affection, a proclamation of finality in the termination of their relationship coupled with an expression of pleasure in having had intercourse promiscuously with neighbouring men. This statement of enjoyment in that course of conduct might reasonably be thought, particularly if coupled with the manner of her rejection of the applicant, to contain an assertion, contemptuously expressed by the deceased, of sexual inadequacy on the part of the applicant. Whilst in themselves small matters, the threat of physical violence to reinforce her rejection of him, the throwing of the telephone as an expression of contempt and the use made of the nude photographs, form part of the whole situation. To describe that situation as consisting merely of words is not, in my opinion, to reflect the reality of the total scene. I am of opinion that a jury would be entitled to view the situation in its entirety as I have briefly described it, including the implied taunt of the applicant's incapacity sexually to satisfy the deceased as she had found other men could. If they took that view, it was open to them to conclude that an ordinary man, placed as was the applicant, would so far lose his self-control as to form an intention at least to do grievous bodily harm to his wife. Whether they would or would not take such a view of the situation would essentially be a matter for them. They are credited with a knowledge of how the ordinary man would react in such a situation. Many might think that they should not draw any such conclusion. But there are limits to the control of such a factual situation which the court can exercise. If, as I think, the situation was not composed of mere words of a not violently provocative character, the court cannot refuse to allow the tribunal of fact to decide the matter unless it is quite clear that no reasonable person could possibly conclude that, in the situation most favourably viewed from the standpoint of the accused, an ordinary man could have so far lost his self-control as to form an intent at least to do grievous bodily harm to his wife. With every respect to those of a different opinion, I cannot think that the trial judge would have been justified in this case in refusing to leave to the jury the question of provocation. In particular and with due respect to the views expressed in the Supreme Court of South Australia, I do not think that it can properly be said that it was not reasonably possible to conclude that, in the total situation described by the applicant, an ordinary man might so far lose his self-control as to form at least an intent to do his wife grievous bodily harm. As I have said, whether it should be concluded that an ordinary man would do so is a question exclusively for the jury, however much a court may be inclined to think that a jury should not do so. Accordingly, it was not an error to place that matter before them.

[2]

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.

[7]

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.

[18]

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.