Parker v The Queen

There is no question upon the evidence that the first attack made upon Kelly as he lay upon the ground was made with a knuckle-duster which, it is said, the applicant had found some time before and which he had left in his car. With this instrument he struck Kelly a great many times about the face. Finally, he drew a small knife, which, it is said, he usually carried, and inflicted a wound upon Kelly which penetrated the larynx. Another wound in the neck severed the internal jugular vein and penetrated into the muscles at the base of the tongue. Altogether, it is said, there were more than ten and less than forty separate wounds on the face, forehead and throat. The medical evidence further tendered to establish that the immediate cause of Kelly's death was the severance of the jugular vein.

In contrast to the applicant's evidence at the trial to the effect that he had followed Kelly and his wife for the purpose only of bringing his wife back, the applicant made a number of statements to the effect that he had formed the intention to kill Kelly before he set out in his car. To one witness, who appeared on the scene shortly after the occurrence, he said he had run over Kelly on purpose and thought that he had killed him outright. He asked this witness whether Kelly was still alive and when the witness replied that he appeared to be breathing the applicant said that he ought to be dead and "that he had meant him to be". According to this witness the main thing the applicant seemed to be worried about was the fact that he had struck his wife. To police officers later that day the applicant is alleged to have said that he intended to kill Kelly but did not mean to hurt his wife. He is further alleged to have said that he had set out to kill Kelly, that he was running away with his wife and that he had decided earlier that day to kill him. He added that if he had had a fight with Kelly he would have been beaten and so he had decided to kill him. Indeed, he is said to have stated that when he and Craig arrived back at Craig's house at lunch time that day Kelly was hanging around and he decided that he could not "beat him fighting and would kill him".

In New South Wales s. 23 of the Crimes Act makes some provision with respect to the issue of provocation in trials for murder. We say "some provision" because it was contended before us that the proviso appearing at the end of sub-s. (2) of that section applies only to cases where the provocation alleged is constituted by grossly insulting language or gestures. The ground upon which this is asserted, as we understand the argument, is that sub-s. (1) purports to deal only with provocation so constituted and, accordingly, that the proviso subsequently appearing is limited in its application to provocation of that character. But, in our view, the first step in this argument is erroneous. What sub-s. (1) (and its predecessor - 46 Vict. No. 17, s. 370) did was, in effect, to enlarge the content of "provocation" by providing that there should be comprehended by that expression "grossly insulting language" and "gestures". In such a case the jury might "consider the provocation offered, as in the case of provocation by a blow". At common law it was "settled" that words were not a "sufficient provocation" (R. v. Taylor [1] ) though, where an assault was relied upon to establish provocation, accompanying or immediately antecedent words might be regarded as aggravating "the provocation given by the assault" (Reg. v. Smith [2] ). The object and effect of the prototype of sub-s. (1) was, therefore, to enlarge the common law notion of what constituted provocation and to entitle a jury to consider the additional matter in precisely the same way as provocation by a blow. As will be seen acceptance of the applicant's contention would mean that a jury would be required to consider provocation constituted by grossly insulting language or gestures in a manner quite different from that in which they would be required to consider provocation by a blow. Additionally it may be observed that sub-s. (2) of s. 23 - apart from the proviso itself - has nothing to say concerning provocation. It is quite general and its provisions have been accepted as a statutory recognition of the common law right of a jury to return a verdict of manslaughter in any case even though the facts point to murder or nothing (Brown v. The King [3] and Beavan v. The Queen [4] ). Upon these views there are, in our opinion, no grounds for supposing that when the proviso specifies "that in no case shall the crime be reduced from murder to manslaughter by reason of provocation" except in certain specified circumstances, it is referring only to provocation constituted by language or gestures and not to provocation generally. Indeed consideration of what we have referred to as the "specified circumstances" must, we think, lead inevitably to the conclusion that no such severable reference was intended.

1. (1771) 5 Burr. 2793, at p. 2796 [98 E.R. 466, at p. 468]. 2. (1866) 4 F. & F. 1066, at p. 1067 [176 E.R. 910, at p. 911]. 3. (1913) 17 C.L.R. 570, at p. 592. 4. (1954) 92 C.L.R. 660, at p. 662.

The proviso is in the following terms: "Provided always that in no case shall the crime be reduced from murder to manslaughter, by reason of provocation, unless the jury find: - (a) That such provocation was not intentionally caused by any word or act on the part of the accused; (b) That it was reasonably calculated to deprive an ordinary person of the power of self-control, and did in fact deprive the accused of such power, and, (c) That the act causing death was done suddenly, in the heat of passion caused by such provocation, without intent to take life." The first thing to be noticed about the proviso is that an accused person cannot succeed on the issue of provocation - whatever that term may be taken to include - unless the jury is satisfied affirmatively of the matters specified. This is, of course, clearly inconsistent with what was declared to be the law of England in Woolmington v. Director of Public Prosecutions [1] and accepted in later cases such as Holmes v. Director of Public Prosecutions [2] ; Chan Kau v. The Queen [3] ; Reg. v. Lobell [4] ; Bullard v. The Queen [5] ; and as discussed and explained in this country in Packett v. The King [6] and R. v. Mullen [7] . If, therefore, the proviso were to be taken to be intended to refer only to provocation by language or gestures the result would be that in cases involving an alleged provocation of that character the onus of proof would lie upon the accused, but, in cases involving other forms of provocation the onus of proof on that issue would lie upon the Crown once the issue fairly arose. And since, frequently, alleged provocation will consist, in part only, of language or gestures, the view of the proviso for which the applicant contends would produce the extraordinary result that the onus of proof would in any such case, lie, in part, on the Crown and, in part, on the accused. Or would it, perhaps, be necessary in such a case for a trial judge to instruct the jury, first of all, to determine whether the language complained of should be regarded merely as aggravating provocation by way of a blow, or whether the blow complained of ought, merely, to be regarded as aggravating grossly insulting language and then to instruct the jury appropriately as to the onus of proof in each case? These considerations confirm us in the view that, for the reasons already given, the proviso applies to all forms of provocation and that, in New South Wales, in so far as it makes provision for that subject matter, it is exhaustive.

1. [1935] A.C. 462, at p. 482. 2. [1946] A.C. 588, at pp. 597, 598. 3. [1955] A.C. 206, at p. 211. 4. [1957] 1 Q.B. 547, at p. 551. 5. [1957] A.C. 635. 6. (1937) 58 C.L.R. 190. 7. (1938) 59 C.L.R. 124.

Coming then to the matters which the proviso requires the accused to establish in any such case the first observation to be made is that no real issue arose upon the first of these matters. There was no suggestion that the provocation alleged was caused, intentionally or otherwise, by any word or act of the applicant and, if the issue of provocation had gone to the jury, the applicant would have been entitled to a direction that a finding in his favour should be made concerning this particular condition. But it was asserted that it was for the jury, and the jury alone, to determine whether, in the terms of the proviso, the provocation which he had received was reasonably calculated to deprive an ordinary person of the power of self-control, and did in fact deprive the applicant of such power, and, further, that his acts which caused Kelly's death were done suddenly, in the heat of passion caused by such provocation, without intent to take life.

Much of the discussion concerning par. (c) of the proviso revolved around the statement in Attorney-General for Ceylon v. Perera [1] that: "The defence of provocation may arise where a person does intend to kill or inflict grievous bodily harm but his intention to do so arises from sudden passion involving loss of self-control by reason of provocation. An illustration is to be found in the case of a man finding his wife in the act of adultery who kills her or her paramour, and the law has always regarded that, although an intentional act, as amounting only to manslaughter by reason of the provocation received, although no doubt the accused person intended to cause death or grievous bodily harm" [2] . However, a few years earlier, the House of Lords, in Holmes v. Director of Public Prosecutions [3] , had declared that: "The whole doctrine relating to provocation depends on the fact that it causes, or may cause, a sudden and temporary loss of self-control whereby malice, which is the formation of an intention to kill or to inflict grievous bodily harm, is negatived. Consequently, where the provocation inspires an actual intention to kill (such as Holmes admitted in the present case), or to inflict grievous bodily harm, the doctrine that provocation may reduce murder to manslaughter seldom applies. Only one very special exception has been recognized, viz., the actual finding of a spouse in the act of adultery. This has always been treated as an exception to the general rule: R. v. Manning [4] . Blackstone Commentaries (Book IV., p. 190) justifies the exception on the ground that "there could not be a greater provocation" ". It will be seen that in the later case the illustration of a husband surprising his wife in the act of adultery is given as a particular application of the general rule whilst, in the other, it is expressly given as an exception to the rule. The point which was the subject of consideration in these cases has been much discussed (see e.g. Russell on Crime 11th ed. (1958) vol. 1, p. 578 et seq.), but many of the observations which have been made might have been more illuminating if they had proceeded upon a common understanding of what constitutes proof of an intent to kill. Such an intent is not necessarily or conclusively established by proof that "the offender had intentionally struck a deadly blow" (see Russell on Crime (supra p. 578)) though much of the discussion that has taken place seems to have assumed that it is (cf. also Stapleton v. The Queen [1] ; Smyth v. The Queen [2] ; and Director of Public Prosecutions v. Smith [3] ). However this may be, it does not fall to us, we think, to attempt to reconcile the two apparently conflicting statements or to elect between them though what was said in Perera's Case [4] was relied upon to urge that we should confine the operation of the proviso to s. 23 to provocation constituted by language or gestures only. But s. 23 has declared the law on the subject in New South Wales for a very long time and its predecessor was enacted at a time when it was by no means certain that the law was as Perera's Case [4] now declares. Further we should add both s. 23 and its predecessor were enacted when, according to much authority, the onus on the issue of provocation lay upon the accused. In these circumstances, we are unable to perceive any reason why we should strain to give to the proviso any meaning other than that which upon its face it so clearly bears.

1. [1953] A.C. 200. 2. [1953] A.C., at p. 206. 3. [1946] A.C. 588. 4. (1671) T. Raym. 212 (sub. nom. R. v. Maddy 1 Vent. 158; 2 Keb. 829). 5. (1952) 86 C.L.R. 358. 6. (1957) 98 C.L.R. 163. 7. [1961] A.C. 290. 8. [1953] A.C. 200. 9. [1953] A.C. 200.

On this view of the section the learned trial judge, in our opinion, acted correctly in withdrawing the issue of provocation from the jury. The reason why we hold this opinion may be stated shortly. The applicant followed Kelly and his wife either with the intention of killing the former or with no such intent. If he did follow them with that intent that is the end of the matter. It is, we think, not unfair to say the evidence that he did follow with such an intent is almost overwhelming. Indeed, the evidence is that the applicant so declared on more than one occasion and this evidence, so far as we can see, was not disputed. But in evidence at the trial he said that when he followed them he merely did so in order to bring his wife back and that he had no intention of killing Kelly at that time. If the jury were at liberty so to find then, whatever may have been the applicant's condition earlier in the day, he was not, when he set out to follow them, deprived of the power of self-control in any relevant sense. It may, perhaps, be said that the sight of his wife and Kelly together on the road was just another circumstance in the sequence of events relied upon as provocation and that this was the final event which caused him to lose his self-control. But no such case was made and, in any case, it was not the running down of Kelly which caused his death. On the applicant's evidence at the trial it was the sight of his injured wife, whom he, at first, thought had been killed, that determined him to kill Kelly. This is the alternative view which emerges from his evidence at the trial and on neither view was there a case of provocation to go to the jury.

There is, we think, a further reason why it was proper that this issue should not have been left for the jury's consideration. It has been said that the proviso is silent upon the question whether there must be some reasonable relationship between the provocation and the act or acts causing death. This is so in the sense that no express mention is made of this factor. But, surely, when the proviso requires that the provocation must be such that it was reasonably calculated to deprive an ordinary person of the power of self-control, and did in fact deprive the accused of such power, it is speaking of loss of the power of self-control in relation to the act or acts causing death. In other words, the question is not whether there was some loss of the power of self-control, but whether the loss of self-control was of such extent and degree as to provide an explanation for or, to constitute, in some measure, an excuse for the acts causing death. And, of course, the provocation must have been of such a character as was calculated to deprive an ordinary person of the power of self-control to that extent. In our view the sequence and nature of the acts which caused Kelly's death were such that it was not open to a jury to find for the applicant on either of these matters.

Some subsidiary matters were also discussed upon the application but these were disposed of in argument and it is unnecessary to refer to them again. Accordingly the application for special leave should, in our opinion, be refused.

Before 1883 when the provision which has since been re-arranged and is now s. 23 of the Crimes Act N.S.W. was introduced, provocation as a mitigating circumstance reducing a killing from murder to manslaughter was well understood. Prima facie it was murder for one person to kill another by purposely doing an act likely to cause death but if the doing of the fatal act was provoked by unsought conduct of the deceased which, when the act was done, had so inflamed the mind of the accused that he had lost control of himself and was conduct of the kind that could reasonably be regarded as likely so to affect an ordinary man, then the killing was manslaughter, not murder. Some conduct, however, could not in law amount to sufficient provocation and, in particular, words or gestures of themselves could not be enough - at any rate, where the fatal blow was given with a weapon likely to cause death or grievous bodily harm so that there was manifested an intention to kill: Reg. v. Mawgridge [1] ; Foster's Criminal Law p. 290; East's Pleas of the Crown (1803) vol. 1, p. 233. Insulting words could, however, be taken into account when they accompanied acts: Reg. v. Sherwood [2] ; Reg. v. Smith [3] .

1. (1706) Kel. 119 [ 84 E.R. 1107]. 2. (1844) 1 Car. & K. 556 [174 E.R. 936]. 3. (1866) 4 F. & F. 1066 [176 E.R. 910].

In his charge to the jury in Reg. v. Kirkham [4] Coleridge J. used language which brings home today as clearly as doubtless it did to the jury he was addressing the sense and simplicity of the law on this subject that he was expounding. He said: - " as it is well known that there are certain things which so stir up man's blood that he can no longer be his own master, the law makes allowance for them. If, therefore, a person being stung and excited inflicts a fatal blow or wound, provided the provocation be sufficient, and acting upon him at the time, and recent, he will only be guilty of manslaughter; and in this the law does not depart from its original principle, because it then supposes that the individual was not guilty of malice prepense, but that what he did was done in a moment of overpowering passion, which prevented the exercise of reason; so that the general distinction is this: in the one case the man is cool, and must be taken to have malice; in the other, if he has had sufficient provocation, and has acted from that provocation while it is fresh, then he has not malice. In some instances you must feel certain, from the acts of the party, that he had a grudge. Suppose a man destroyed another by poison; if it were proved that he had previously bought the poison and prepared the cup, although he should have had a quarrel with the party at the very time of administering it, you could not doubt that there was express and actual malice. If a person has received a blow and in the consequent irritation immediately inflicts a wound that occasions death, that will be manslaughter. But he shall not be allowed to make this blow a cloak for what he does; and, therefore, as in the case of poisoning, though there have been an actual quarrel, and the deceased shall have given a great number of blows, yet if the party inflict the wound, not in consequence of those blows, but in consequence of previous malice, all the blows would go for nothing I told you just now he must be excused if the provocation was recent and he acting on its sting, and the blood remained hot, but you must consider all the circumstances, the time which elapses, the prisoner's previous conduct, the deadly nature of the weapon, the repetition of the blows, because, though the law condescends to human frailty, it will not indulge human ferocity" [1] . In making the qualification imported by the words "provided the provocation be sufficient" and "if he has had sufficient provocation", Coleridge J. no doubt had in mind two elements, (a) that certain conduct could not in law amount to provocation and (b) that the conduct relied upon as provocation for a fatal blow must be such as might reasonably provoke such a blow from an ordinary man so that, for instance, a mere tap on the shoulder could not be regarded as sufficient provocation for a stabbing or a shooting: East op. cit. p. 23; see for modern statements Mancini v. Director of Public Prosecutions [2] where Viscount Simon L.C. said: " the mode of resentment must bear a reasonable relationship to the provocation if the offence is to be reduced to manslaughter" [3] and Packett v. The King [4] where Dixon J. (as he then was) said [5] : "At common law the test of provocation is not whether the occurrence is sufficient to deprive the particular individual in question of his self-control, having regard to his nature and idiosyncrasies, but whether it would suffice to deprive a reasonable man in his situation of self-control (R. v. Lesbini [6] )".

1. (1837) 8 Car. & P. 115 [173 E.R. 422]. 2. (1837) 8 Car. & P., at pp. 117-119 [173 E.R., at pp. 423, 424]. 3. [1942] A.C. 1. 4. [1942] A.C., at p. 9. 5. (1937) 58 C.L.R. 190. 6. (1937) 58 C.L.R., at pp. 217, 218. 7. [1914] 3 K.B. 1116.

The citations that I have made from Reg. v. Kirkham [7] make it clear that where there was a premeditated killing there could be no provocation having legal significance but do not exclude provocation as a mitigating circumstance where what was done manifested an intention to kill. That an intentional killing could in some circumstances be reduced by provocation to manslaughter is beyond question but it became doubtful whether or not that provocation which consists of one spouse taking the other in an act of adultery was the only instance of this: see Holmes v. Director of Public Prosecutions [1] ; R. v. Semini [2] ; Attorney-General for Ceylon v. Perera [3] . This doubt has been resolved in favour of the wider application of the rule in Lee Chun-Chuen v. The Queen [4] .

1. (1837) 8 Car. & P., at pp. 117-119 [173 E.R., at pp. 423, 424]. 2. [1946] A.C. 588, at p. 598. 3. [1949] 1 K.B. 405. 4. [1953] A.C. 200. 5. [1963] A.C. 220.

Looking at s. 23 of the Crimes Act N.S.W. in the setting of the law as it stood in 1883, it is reasonably clear that one of its purposes was to modify the rule already referred to that in general mere words and gestures could not in law amount to provocation sufficient to reduce a killing which would otherwise be murder to manslaughter, but the section went further. At first sight it is attractive to treat the proviso to sub-s. (2) as in reality a proviso to sub-s. (1) and so to regard the proviso as applying only to provocation by words or gestures, but further consideration of the section as a whole seems to me to render such a construction inadmissible. Sub-section (2) has been regarded as a legislative affirmation that upon any indictment for murder the jury has the right to return a verdict of guilty of manslaughter rather than murder and as dealing with a subject matter different from that dealt with by the first sub-section: Brown v. The King [5] ; Beavan v. The Queen [6] . The reference in sub-s. (2) to an "omission causing death" demonstrates that the sub-section is not confined to the subject matter of sub-s. (1) which deals only with acts causing death. In consequence it seems to me a necessary construction that the proviso governs every case where the jury is required to consider whether a killing which would otherwise be murder is manslaughter by reason of provocation. So construed the proviso does substantially alter the common law, particularly in denying legal significance to provoking conduct in any case where the act causing death was done with intent to take life. It would not be impossible to read the phrase with which the proviso concludes (i.e. "without intention to take life") if the words stood in a different context as meaning no more than that the act causing death was done without premeditation but, having regard to the preceding words of par. (c) of the proviso, I do not think the phrase can be so understood. Although there is no doubt that the presence of premeditation leaves no room for provocation in law and does so clearly enough by virtue of the language of the proviso without the last words, it cannot be conjectured, let alone inferred, that the legislature intended to leave provocation open in every case of an intentional killing without premeditation: e.g. the shooting or stabbing of one who grossly insults another by calling him a bastard or a communist or some other opprobrious name.

1. (1913) 17 C.L.R. 570. 2. (1954) 92 C.L.R. 660.

Despite my suspicion that the draftsman of s. 23 did not have in mind all the instances of what could be sufficient provocation in law to reduce to manslaughter a homicide that would otherwise be murder, I have come to the conclusion that there is really no alternative to reading the section as applying to all kinds of provocation and as meaning that in New South Wales, unless the jury finds no intention to kill, it cannot acquit an accused person of murder and convict him of manslaughter simply on the ground that the act causing death was provoked by what the deceased said or did. It is to be observed that it is a positive finding of absence of intention to kill, not the absence of a finding of an intention to kill, which the section contemplates and its language shows that the burden of satisfying the jury of the absence of an intention to take life rests upon the accused. In 1883 such a provision was quite understandable but now, in the absence of a statutory provision so providing, it would seem that as a result of Woolmington v. Director of Public Prosecutions [1] once provocation is raised the onus would lie upon the Crown to prove beyond reasonable doubt all the elements of murder including the absence of provocation sufficient to reduce the crime to manslaughter. The position apart from s. 23 would be similar to that established in Chan Kau v. The Queen [2] where the issue of self-defence appears and goes to a jury: see Mancini's Case [3] . Section 23, however, leaves no room for the application of Woolmington's Case [1] or for the words of Lord Devlin in Lee Chun-Chuen v. The Queen [4] : "It is not, of course, for the defence to make out a prima facie case of provocation. It is for the prosecution to prove that the killing was unprovoked. All that the defence need do is to point to material which could induce a reasonable doubt" [5] and, because of its terms, in this case the problem which the learned trial judge had to decide was whether there was evidence upon which the jury could reasonably find the various elements described in pars. (a), (b) and (c) of the proviso to s. 23 (2) of the Crimes Act. Hardie J. decided there was not and accordingly declined to direct the jury that they could find the accused guilty of manslaughter rather than murder on the ground of provocation. His decision was upheld by the Court of Criminal Appeal.

1. [1935] A.C. 462. 2. [1955] A.C. 206. 3. [1942] A.C. 1. 4. [1935] A.C. 462. 5. [1963] A.C. 220. 6. [1963] A.C., at p. 229.

The evidence upon which the question of the correctness of his Honour's ruling falls to be decided is set out fully in the joint judgment of Taylor and Owen JJ. and I will not recapitulate it in detail. It shows that about 3 p.m. on the day in question the deceased took the accused's wife away from her home, her husband and her family; that she went with him willingly; that according to the accused's evidence in the conversation which the deceased had with him shortly before leaving the deceased used language to him that could be regarded as grossly insulting; that the accused contemplated attacking the deceased and because of his size and strength started to fashion a weapon to use, a pointed steel rod, which was taken away from him; that about 3.20 p.m. after the deceased and the wife had left the accused drove in his motor car after them; that when at about 3.30 p.m. he caught up with them they were standing beside the road and he ran them down and injured them both; that the accused then attacked the deceased who was at his mercy, first with a knuckle duster and then with a knife, cutting his jugular vein; that when he had killed the deceased the accused telephoned the police and afterwards made a number of statements to the effect that he had done what he did to the deceased intending to kill him. The evidence to my mind affords no basis for a finding that the deceased's insulting language to the accused played any part in causing the acts which caused death and accordingly, if there is here provocation, it is essentially the deceased's conduct in taking away the accused's wife. Whether or not this could in law amount to provocation is a question that, so far as I have been able to discover, has not been considered as a separate problem but the observations of Viscount Simon speaking for all the members of the House of Lords in Holmes v. Director of Public Prosecutions [1] suggests that it could not. The statement of Parke B. in Pearson's Case [2] points the same way. That learned judge said: "If a man kill his wife, or the adulterer, in the act of adultery, it is manslaughter, provided the husband has ocular inspection of the act, and only then." See too R. v. Ellor [3] where the Court of Criminal Appeal said that threats by a wife to a husband to commit adultery would not be sufficient provocation to reduce the killing of her from murder to manslaughter. These and other cases show a marked reluctance to permit any extension of Maddy's Case [4] .

1. [1946] A.C., at p. 598. 2. (1835) 2 Lewin 216 [168 E.R. 1133]. 3. (1920) 85 J.P. 107. 4. (1671) 1 Ventris 158 [ 86 E.R. 108].

If, however, what the deceased said and did could, independently of s. 23 (2), amount to provocation, I do not think there was any evidence to justify the learned trial judge in putting provocation to the jury because there was no evidence upon which the jury could find that the accused did not intend to cause the death of the deceased. It seems to me that the critical time was after the deceased had been knocked down by the accused's car and that what then occurred left no room for doubting that the accused killed the deceased intentionally. Although other points were raised, the one I have dealt with is the only one that could warrant the granting of special leave but for the foregoing reasons I consider special leave to appeal should be refused.

This is an application for special leave to appeal from a decision of the New South Wales Court of Criminal Appeal. The applicant, the prisoner, is serving a sentence of penal servitude for life for murder. On his arraignment he had pleaded not guilty. The jury returned a verdict of guilty, adding a strong recommendation for mercy. The circumstances must arouse compassion and may justly attract clemency. But it cannot be said that there was not evidence that would fully support the verdict. Nevertheless, I think this is a case in which this Court should give special leave to appeal, because I consider that the question of provocation should have been put to the jury with a direction as to the circumstances in which provocation reduces to manslaughter what would otherwise be murder. If the case is one for special leave then, in considering whether the appeal should be allowed, we must approach the matter as if we were a court of criminal appeal. It then becomes of little importance that on the facts the verdict may seem to have been right, if the jury were not properly directed on a material issue and this misdirection might have affected their decision.

Counsel for the applicant earnestly criticized the summing up of the learned trial judge on many grounds. In substance they come down to two: first that the possibility of a reasonable doubt that the prisoner had an intent to kill or inflict grievous bodily harm was not sufficiently put to the jury by his Honour; secondly that his Honour was wrong in the ruling he gave as to provocation.

As to the first of these, the evidence may be summarized as in the Court of Criminal Appeal Sugerman J. summarized it: "At most", he said, "it amounts to no more, in effect, than that what the appellant did was done under the compulsion of blind rage and that at his trial he had no clear recollection of all the details, though he recollected them clearly enough immediately after the event" [1] . Perhaps one should add to this the accused's statement that his conduct was brought to its violent climax because the sight of his wife departing with the deceased suddenly brought to his mind the memory and emotions of his childhood when his own mother had deserted her home. The learned trial judge dealt with this aspect of the defence as follows: He told the jury that counsel for the accused sought to explain the attacks upon the deceased as "unpremeditated and instantaneous reactions to an emotional crisis of overpowering intensity, an emotional crisis claimed to have been brought about not only by the acute problems on that afternoon besetting the accused but also to a large measure by a somewhat similar experience in his early impressionable childhood in New Zealand". His Honour then said that counsel relied upon this to show an absence of intent to kill or inflict grievous bodily harm and that he invited the jury to acquit the accused of murder and to bring in a verdict of manslaughter. As to this his Honour said: "Our law does not recognize or allow either as a complete or partial defence to a charge of murder, the fact that the accused committed the act or acts resulting in the death, by reason of some overpowering or even irresistible impulse or whilst subject to some severe emotional stress or strain". There was no suggestion that the prisoner was insane. Therefore, provocation set aside, his Honour's direction so far was, in my opinion, unobjectionable. But it is complained for the prisoner that his Honour went on to say: "In the case of an attack, whether premeditated or not, on another person with a weapon or instrument likely to cause death or serious bodily injury, the law normally - that is to say assuming the person in question is of the age of reason and is in law responsible and accountable for his actions - treats the person who has made the attack as having intended the natural and probable consequences of the use by him, under all the circumstances present of the weapon or instrument".

1. [1962] S.R. (N.S.W.), at p. 737; 80 W.N., at pp. 639, 640.

Any reference to the natural and probable consequences of acts is apt to-day to let loose a flood of debate about so-called "objective" and "subjective" tests, a debate that can readily become far removed from the realities of the case in hand. I have stated my own understanding of the basic principles as this Court has stated them and as I accept them, and I need not repeat what I said in Vallance v. The Queen [1] . In every case where intent is in question the question is what did the accused - the man before the court - intend. Of that, the acts he did may well provide the most cogent evidence. In some cases the evidence that the acts provide may be so strong as to compel an inference of what his intent was, no matter what he may say about it afterwards. If the immediate consequence of an act is obvious and inevitable, the intentional doing of the act imports an intention to produce the consequence. Thus to suppose that a sane man who wilfully cuts another man's throat does not intend to do him harm would be absurd. A sane man who intentionally belabours another with a knuckle-duster while he is lying helpless on the ground and then stabs him with a knife, cutting his throat, cannot rationally be said not to have meant to do him grievous bodily harm at the least. Moreover, it might well be thought that such deeds must have been done with a reckless indifference to human life. That, I think, is what his Honour meant to convey to the jury and what his summing up taken as a whole would have conveyed. He was speaking of the facts of the case the jury had to try. He had refused to put the question of provocation to the jury. If he were right in that, then I do not think that the rest of what he said could have misled the jury. He later recalled them and told them, quite explicitly, that if they were not satisfied beyond reasonable doubt that the accused in fact had the intent or the reckless indifference - as described in s. 18 of the Crimes Act, 1900 N.S.W. - necessary to constitute murder, he should be acquitted of murder; that if they thought that what he did amounted to manslaughter they should convict him of manslaughter; and that on these matters the facts were for them alone to determine. I do not think the jury were left in any doubt as to that issue or as to their powers and responsibilities in coming to a verdict in this case, although I agree that the expressions that his Honour used about natural and probable consequences could, in other contexts, be misleading.

I pass to the next matter - his Honour's charge concerning provocation. He said: "There is one other point that I think I should deal with briefly and that is the matter you have heard mentioned from the bar table from time to time throughout this case - namely the question of provocation. Provocation can in certain cases be relied upon by an accused to reduce what would otherwise be murder to manslaughter. I have ruled that this is not one of those cases, gentlemen; I have ruled that as a matter of law, with the result that you are not in this case concerned with any question of provocation".

With respect I think his Honour there came to a wrong decision. The question for him was a difficult one. He gave it careful consideration. He had not the benefit of the most recent pronouncement of the Privy Council on the topic. Both at the trial and in the Court of Criminal Appeal counsel for the Crown supported his Honour's ruling. But in this Court the Solicitor-General, having himself considered the matter, said, in a helpful survey of the facts and the law, that the Crown would not oppose leave to appeal, because he conceded that there was some evidence of provocation to be submitted to the jury. In these unusual circumstances we should, I think, give great weight to the matters to which the Solicitor-General directed attention - but without surrendering the discretion involved in deciding whether or not the case is one for special leave to appeal.

The central question of law is what is the scope and effect of s. 23 of the Crimes Act, 1900 N.S.W., which re-enacts s. 370 of the Criminal Law Amendment Act of 1883 N.S.W.. This is not expressed to be a complete code supplanting the common law concerning provocation: whether or not it does so is one question that arises. It is therefore convenient to consider first the common law background of the New South Wales statute at the date it was enacted.

The application to-day of the common law principles by which murder may be reduced to manslaughter is illustrated by such well known recent decisions as Mancini v. Director of Public Prosecutions [1] ; Kwaku Mensah v. The King [2] ; Holmes v. Director of Public Prosecutions [3] ; Reg. v. McCarthy [4] and others referred to during the argument. These common law rules are derived from a series of cases occurring mainly in the seventeenth and eighteenth centuries, and depend upon rulings of single judges or decisions upon special verdicts or in some cases rulings of the twelve judges given at Serjeants' Inn after respites or reprieves. Some of these cases arose in times when men commonly wore swords and were often very ready to draw them from their scabbards upon a sudden quarrel. Questions of provocation and of self-defence were originally often entangled. Chance-medley still had a place in the law. And the law of murder and manslaughter was still being developed. All homicide had once been felonious. And only in 1547 had the distinction between murder and manslaughter been finally settled by the last of the statutes which made homicide of malice aforethought a non-clergyable felony, leaving other punishable homicides clergyable. Malice aforethought thus became the essential element in the non-clergyable crime of murder. Originally the word "aforethought" probably had more or less its natural meaning involving some degree of premeditation, describing at least a deliberate and calculated act. "Malice prepense", said Coke, "is where one compasseth to kill, wound or beat another and doth it sedato animo ": 3 Inst. 50. Killing of deliberate intent was murder, for it was done of malice aforethought. Killing upon a sudden falling out when swords were drawn and blows exchanged was at first said not to be so. But even in Coke's time malice prepense had largely ceased to mean premeditated harm. Murder had come to be defined as an unlawful killing with malice aforethought, express or implied. And malice aforethought, it was said, was implied in any intentional killing. It mattered not whether it was planned or done suddenly, in cold blood or in heat. But if it were provoked the case might be different. For, said Coke, there is malice "if one kills another without any provocation on the part of him that is slain". And Holt, who wrote the report of Mawgridge's Case (1706) that appears in Kelyng's Reports [1] approached the matter in the same way. A sudden killing was done of malice, just as was a planned killing, provided it was without provocation. And thus it has been put from the time of Hale - who spoke of "such provocation as will take off the presumption of malice": Pleas of the Crown, vol. 1, p. 451 - to the case of Holmes v. Director of Public Prosecutions [2] where Viscount Simon said that the whole doctrine relating to provocation depends upon a negativing of malice. To his Lordship's words in that case and their effect I shall come later. Sir James Fitzjames Stephen in his History of the Criminal Law, (1883) vol. 3, p. 87 adopted the same view. "The whole law of provocation rests upon an avowed fiction - the fiction of implied malice. Malice is implied when a man suddenly kills another without provocation. What is the provocation which will rebut the legal presumption of malice in cases of sudden killing?"

1. [1942] A.C. 1. 2. [1946] A.C. 83. 3. [1946] A.C. 588. 4. [1954] 2 Q.B. 105. 5. (1706) Kel. 119 [ 84 E.R. 1107]. 6. [1946] A.C. 588.

It might have been better if the earlier writers had used some other word than "malice" to express the notion of wilful wickedness in the expression malitia praecogitata. "Malice aforethought" might then have had a less artificial and less confusing meaning and a less troubled history. However that may be, it is clear enough that the rule that a sufficient provocation could reduce the guilt of homicide from murder to manslaughter was founded at bottom on an appreciation that there are differing degrees of moral responsibility in homicide, that for what a man does on a sudden and serious provocation he is less to blame morally than for what he does deliberately and in cold blood. Thus it was that Blackstone said that the difference between manslaughter and murder "principally consists in this, that manslaughter arises from the sudden heat of the passions, murder from the wickedness of the heart": Commentaries , IV. p. 190. The doctrine of provocation alleviating a homicide, so as to make it manslaughter not murder, thus developed alongside the development of the defences of misadventure and self-defence, which became grounds of excuse for homicide, instead of making it merely pardonable as originally they had. By the doctrine of provocation the common law judges and the old writers, Hale, Hawkins, Foster and others thus brought the law of homicide a stage further in its progress from strict liability for an act causing death to a concept of guilt being the result of a state of mind.

It is not every provocation that will extenuate guilt and reduce murder to manslaughter. It must, to use the antiquated language of the eighteenth century, as repeated by East in his Pleas of the Crown (1803) vol. 1, p. 238, be: "such a provocation as the law presumes might in human frailty heat the blood to a proportionable degree of resentment, and keep it boiling to the moment of the fact: so that the party may rather be considered as having acted under a temporary suspension of reason than from any deliberate malicious motive". Constantly repeated expressions are a "sudden provocation", an acting "on the sudden" and "in the heat of passion". The provocation must cause a "transport of passion and loss of self-control". As a comprehensive explanation, what Tindal C.J. said to the jury in R. v. Hayward [1] , may be quoted: He told them that the question for their consideration would be "whether the mortal wound was given by the prisoner while smarting under a provocation so recent and so strong, that the prisoner might not be considered at the moment the master of his own understanding; in which case, the law, in compassion to human infirmity, would hold the offence to amount to manslaughter only: or whether there had been time for the blood to cool, and for reason to resume its seat, before the mortal wound was given; in which case the crime would amount to wilful murder" [2] . To this may be added, as a more modern example, what Devlin J., as he then was, said in his direction to the jury so warmly approved by Lord Goddard in R. v. Duffy [3] . It began: "Provocation is some act, or series of acts, done by the dead man to the accused which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind".

1. (1833) 6 Car. & P. 157 [172 E.R. 1188]. 2. (1833) 6 Car. & P., at p. 159 [172 E.R., at p. 1189]. 3. [1949] 1 All E.R. 932.

Because the doctrine of provocation thus depends upon an uncontrolled, unreasoning and impulsive act, some writers, among them Mr. J. W. C. Turner in his edition of Kenny's Outlines of Criminal Law (1958) p. 154, have spoken of it as a case in which the law recognizes an "irresistible impulse". But I think that term is better avoided in this connexion. The law is concerned with an irresistible impulse as ordinarily understood only when it is a manifestation of the insanity of an insane man. It is concerned with an act done under provocation only when it is the act of a sane man. What is insisted upon, if provocation is to avail as a defence, is that the action of the accused should be a normal reaction of an ordinary man. It may be that, on psychological analysis, the impulsive act of a sane man and an insane impulse are similar, in that in each case there is an act done, without deliberation or volition, in immediate reaction on the presentation of a situation. But law looks at them differently, whether or not it is psychologically proper to do so. I thought that in this case the argument for the applicant failed at times to recognize the distinction. It was not suggested that the accused was insane; yet it seemed that it was urged at the trial, and in some sense repeated to us, that because of provocation and distress of mind he acted without intent to do what he did. But to rely upon provocation it was necessary to show that the provocative conduct of the deceased aroused in the prisoner an intent, in the legal sense, to do the act he did, not that it robbed him of the capacity to form an intent.

As a result of early cases in which the question of murder or manslaughter was submitted to the ruling of the judges, two rules became established concerning particular forms of conduct which would or would not suffice. At one end of the scale stood the case of a husband suddenly discovering his wife actually in the act of adultery. If he thereupon immediately killed her or her paramour, it was not murder but manslaughter. It was so held in 1671 in R. v. Maddy [1] ; and ever since this has been taken to be a rule of law. It is ordinarily said to depend upon the doctrine of provocation. But it may be that it has an older derivation; for in many parts of Europe in ancient times a husband finding a man in adultery with his wife might lawfully kill him upon the spot: see Blackstone, Commentaries, Book IV, p. 191; Puffendorf Book II, chap. 5, 15.

At the other end of the scale stood pronouncements that reproaches, however grievous, and insulting words or gestures, however offensive, would not count as provocation if they were unaccompanied by any assault or blow. A blow might be answered by a blow causing death; and that would be manslaughter. But mere words, not being menaces, would not suffice to justify or explain a blow: if death ensued, that would be murder. Perhaps the rule that words alone would not suffice was not always quite strict. The early writers drew a distinction between homicide upon a grave provocation and homicide upon a slight provocation. A slight provocation would not excuse the use of a deadly weapon manifesting an intention to kill; but if the man provoked "had given the other a box on the ear, or had struck him with a stick or other weapon not likely to kill and had unluckily and against his intention killed, it had been but manslaughter": Foster, Discourse on Homicide, 3rd ed. (1792), p. 291. But it was only in exceptional cases, if at all, that mere words would count, even as slight provocation. And this is perhaps still the common law rule: see Holmes' Case [1] .

Between the two extremes of the common law - killing an adulterer taken in the act, which was always but manslaughter, and killing provoked by mere words which was nearly always, if not always, murder - are many rulings of the judges concerning provocation on particular facts. Many of them show how different in weight and character are the things that matter in one age from those which matter in another. The remarkable proceedings in R. v. Taylor and Smith v. Taylor [2] and the cases of R. v. Brown [3] ; R. v. Snow [4] ; and Reg. v. Smith [5] are some examples of the way in which judges dealt with particular facts. In the last of these Byles J. said that if two military officers met in the street, and one called the other a coward and a scoundrel, and spat in his face, and he immediately drew his sword and stabbed him, he thought it would be manslaughter. This as late as 1866. The spitting would prevent it being a case of words alone. But he said "if to take a case at the other extreme, an ordinary quarrel arose between husband and wife, and the wife spat at her husband, and the husband thereupon killed the wife, this, I think, would be murder" [6] . At one period it seemed that in this branch of the law principle might founder in a quagmire of single instances. It has been rescued by the recognition that the question is ultimately one of fact, to be determined by the application of general principles to particular facts, rather than by seeking for analogies among cases decided in earlier times in different social conditions. The cases of adultery and of mere words, however, remain apparently more or less hard and fast rules of law.

1. (1771) 5 Burr. 2793 [98 E.R. 466]. 2. (1776) 1 Leach 148 [168 E.R. 177]. 3. (1776) 1 Leach 151 [168 E.R. 178]. 4. (1866) 4 F. & F. 1066 [176 E.R. 910]. 5. (1866) 4 F. & F., at p. 1067 [176 E.R., at p. 911].

Sir James Fitzjames Stephen by his History of the Criminal Law and his other works had a large part in putting provocation on a basis of general principle. Articles 245 and 246 of his Digest of the Criminal Law (1877) sum up the common law. They may be aptly quoted here in full for they accurately stated the law as it was at the very time when his cousin, Sir Alfred Stephen, was engaged in the work of reforming it in New South Wales by the statutory provisions on which this case turns:

Article 245, "Homicide, which would otherwise be murder, is not murder, but manslaughter, if the act by which death is caused is done in the heat of passion, caused by provocation, as hereinafter defined, unless the provocation was sought or voluntarily provoked by the offender as an excuse for killing or doing bodily harm".

Article 246, "Provocation does not extenuate the guilt of homicide unless the person provoked is at the time when he does the act deprived of the power of self-control by the provocation which he has received, and in deciding the question whether this was or was not the case, regard must be had to the nature of the act by which the offender causes death, to the time which elapsed between the provocation and the act which caused death, to the offender's conduct during that interval, and to all other circumstances tending to show the state of his mind".

The last passage was approved in the judgment in Mancini's Case [1] . It is important because of the last few words which recognize that the whole doctrine is referable to the state of mind of the accused. But there is this qualification - the matter must be considered from the standpoint of the mind of an ordinary man in the circumstances.

I leave now the rules of the common law and turn to the New South Wales Crimes Act, 1900. The relevant provisions are s. 18, which defines or describes murder and provides that every other punishable homicide shall be taken to be manslaughter, and s. 23. Both these provisions were part of the great reform of the criminal law of New South Wales made by the Criminal Law Amendment Act of 1883. This measure modified, added to and consolidated the previous statute law of the Colony and codified some parts of the common law. In particular it did away with the old phrase "malice aforethought" as an element in murder, by an express statement of the circumstances in which murder shall be taken to have been committed. This was the result of s. 9, now s. 18 of the Crimes Act. And by s. 370 it enacted the provisions that are now s. 23 of the Crimes Act. Section 23 is in the identical words of s. 370; but its sentences are now numbered as two sub-sections, instead of being in an unbroken sequence. That makes no difference to the construction of the section. The Act of 1883 was the delayed product of the work of the Royal Commission on Law Reform, appointed in 1870, which in 1871 had presented its report, with a draft bill for the reform of the criminal law annexed. Several attempts to have the bill passed proved abortive. It was not until 1883 that it became law. And by then it had undergone changes and had had many new provisions added, so that as ultimately enacted it differs in many ways from that submitted by the Royal Commission. I mention this because the Solicitor-General brought to our notice the comments on s. 370 appearing on pp. 145 and 203 of the Criminal Law Manual (1883) by Sir Alfred Stephen and Mr. Alexander Oliver. This is an interesting work because Sir Alfred, when Chief Justice, had been President of the Royal Commission; and, having retired as Chief Justice, he was a member of the Legislative Council on the various occasions when the bill was before Parliament: and Mr. Oliver, the Parliamentary Draftsman, had been Secretary of the Royal Commission. The authors therefore said in their introduction that they "naturally entertain for the measure which they edit a paternal regard". But parents do not always well understand their children. Draftsmen are no exception. I greatly doubt therefore whether, even if this contemporary commentary on the Act were directly in point, we would be entitled to base any conclusion on it. It would be a different matter, perhaps, if the report of the Royal Commission had referred to the particular matter with which we are concerned. It might then be permissible to look at it, not for interpreting the enactment, but for ascertaining the particular defects in the earlier law that it was intended to remedy: Assam Railways and Trading Co. Ltd. v. Commissioners of Inland Revenue [1] ; South Australia v. The Commonwealth [2] . But, in fact, the report, although it deals with murder and manslaughter, says nothing about provocation: and the original proposals of the Commissioners did not include any provision dealing with that matter. Section 370 was thus an afterthought. If it were legitimate to refer to its origin and legislative history, it might be found more correct to say it was the piecemeal result of Parliamentary afterthoughts. But it is not legitimate to consider how in the course of its Parliamentary history this provision came to take the form in which it was enacted. It must be construed as it stands and now as part of the Crimes Act, 1900.

1. [1935] A.C. 445. 2. (1942) 65 C.L.R. 373, at pp. 410, 439.

It is obvious that the purpose and effect of what is now sub-s. (1) was to abrogate the common law rule that insulting words or gestures alone cannot amount to a provocation sufficient to reduce a killing from murder to manslaughter. That much is clear. But is this its only purpose? Does sub-s. (1) govern and control the whole? That is the first question. If it does, some difficulties would disappear. But the language does not really admit of this construction. Sub-section (2) refers to "the act or omission causing death". Sub-section (1) and the third requirement of the proviso refer only to "act" not to "act or omission". This is understandable, because provocation may explain an act done in the heat of passion; but it can hardly explain, still less excuse, an omission to act. On the whole, therefore, I think that sub-ss. (1) and (2) are quite independent provisions - sub-s. (1) merely enlarging the class of provocative conduct that can suffice to reduce a killing to manslaughter, sub-s. (2) being a general provision, and the proviso a statement of conditions that must be fulfilled for provocation to extenuate murder. Sub-section (2) presents no difficulty as a general proposition. It was at common law always open to a jury who found that a killing was unlawful to refuse to find the element of malice aforethought necessary to make it murder and thus to bring in a verdict of manslaughter. That they may sometimes do so from motives of mercy or compassion, although the facts point only to murder, means that their verdict is unreasonable, and in that sense improper, not that it is unlawful or beyond their power: see Beavan v. The Queen [1] and cases there referred to; also Packett v. The King [2] . It has been suggested that sub-s. (2) is unnecessary if it be nothing more than an enunciation of a common law rule. But it should be remembered that, in relation to murder and manslaughter, the Act of 1883 was intended to be a restatement of common law doctrine, but shorn of some of the extravagances of malice aforethought and constructive malice. At common law murder was reduced to manslaughter by a provocation sufficient in Hales' words "to take off the presumption of malice", that is to say to remove the implication of malice aforethought that the deed created. As the new statutory provisions supplanted the old learning concerning malice aforethought, an express preservation of the jury's right to acquit of murder and convict of manslaughter was prudent. And as the common occasion for doing so was when provocation existed the proviso is not out of place. I go now to it.

1. (1954) 92 C.L.R. 660. 2. (1937) 58 C.L.R., at p. 213.

It states accurately and succinctly certain elements of the common law concerning provocation, as understood in 1883. But it is not an exhaustive statement of the law on the topic, for it does not expressly provide that the manner of retaliation must not be disproportionate to the provocation. That doctrine has come in for some academic discussion and criticism in text books and periodicals: see Criminal Law Review 1954, p. 744 and p. 904; Russell on Crime 11th ed. (1958) vol. 1, p. 610. But it has an early and respectable origin in the distinction that the old writers made between a slight and a grave provocation, and it is soundly related to the ordinary reactions of an ordinary man. An insult may arouse strong resentment; but an ordinary man does not on that account so far forget himself as to use a deadly weapon. Whatever criticisms be made of it, the rule that the act provoked must bear some reasonable relationship to the provocative act is now authoritatively recognized as part of the common law: Lee Chun-Chuen v. The Queen [1] . And, although not expressed in s. 23, it must be understood: cf. Attorney-General for Ceylon v. Perera [2] .

1. [1963] A.C. 220, at pp. 231, 232. 2. [1953] A.C. 200.

To come now to the three matters that the statute states a jury must find before they can, in reliance on provocation, find a verdict of manslaughter instead of murder: The first, that such provocation was not intentionally caused by the accused, is merely a repetition of the old common law rule that a contrived provocation will not suffice. Richard Mason's Case [3] is an early example. There the judges said: "the blows were plainly a provocation sought on his part, that he might execute the wicked purpose of his heart, with some colour of excuse".

The second requirement, that the provocation was "reasonably calculated to deprive an ordinary person of the power of self-control and did in fact deprive the accused of such power", is merely a statement of the central principle of the common law of provocation.

The third requirement is "that the act causing death was done suddenly, in the heat of passion caused by such provocation, without intent to take life". This also, as I read it, merely describes an element of the common law. The words are a single composite description of an act provoked. The phrase ought not, I think, to be read as if, broken into parts, it stated several matters to be considered separately and independently of one another. It is true that the words "without intent to kill", if they be read as a separate specific element, and unqualified by their context, cause difficulties, as did the dictum of Viscount Simon in Holmes' Case [1] , that "where the provocation inspires an actual intention to kill or to inflict grievous bodily harm, the doctrine that provocation may reduce murder to manslaughter very seldom applies" [2] . But the Privy Council has recently put an end to academic controversy about Viscount Simon's dictum by saying that "it cannot be read as meaning that the proof of any sort of intent to kill negatives provocation. Lord Simon was evidently concerning himself with the theoretical relationship of provocation to malice and in particular with the notion that where there is malice there is murder; and he may have had in mind that actual intent in the sense of premeditation must generally negative provocation": Lee Chun-Chuen v. The Queen [3] . It is in that way that the words "without intent to take life" in s. 23 of the New South Wales Act ought, I think, to be understood, To read them as if they described the absence of an intent such as is involved in the concept of mens rea, the sense in which the words "intent to kill" are used in s. 18 of the Act, would be to treat the Act as having overturned completely the law of provocation in New South Wales by removing the foundation on which it rests. To read them in that way and to give them that consequence seems to me, with respect to those who think otherwise, unnecessary and unjustifiable. Rather they should, I think, be read secundum materiam. They are part of a phrase expressive of an element in the common law doctrine of provocation, the fundamental assumption of which is that the provocation produces, in the words of East, a "suspension of reason arising from sudden passion", a frame of mind inconsistent with "deliberation or reflection". It is this which removes from the act done the element of presumed malice which makes homicide murder at common law. The distinction is discussed in an article by Dr. J. Ll. L. Edwards, The Doctrine of Provocation in the Law Quarterly Review, vol. 69 where, at p. 549 , the author says: "The essential distinction constantly stressed is between a preconceived, planned intention to kill and a sudden, spontaneous intention to kill". This, I consider, is correct, and I adopt a suggestion made by Barry J. in a learned article on this subject in Res Judicatae, vol. 4, p. 133. The words "without intent to take life" in s. 23 mean, I think, using his Honour's words, "a premeditated intent to kill, which must really mean an intent to kill not primarily aroused by the provocation".

1. [1946] A.C. 588. 2. [1946] A.C., at p. 598. 3. [1963] A.C., at p. 228.

In New South Wales the law concerning provocation is to be found in s. 23, not in the common law. But, for the reasons I have given, I regard s. 23 as consistent with the common law. Indeed it is an affirmation of it - not an alteration, except that it enlarges its scope by putting provocation by insulting language or gestures in the same position as provocation by a blow. That is how the section has been understood: R. v. Withers [1] .

Was the learned trial judge right in withdrawing the question of provocation from the jury's consideration in this case? The general rule is that if there is any evidence on which a jury, acting reasonably, could find the issue of provocation in favour of the accused the question must be left to them to decide as a question of fact; but if there is no such evidence the judge ought not to leave the question to them. Where this rule is statutory, as in the Tasmanian Criminal Code, it has been explained by Dixon J., as he then was, in Packett v. The King [2] by saying that "the reason why the question whether any matter alleged is capable of constituting provocation is made a matter of law lies in the main in the necessity of applying an overriding or controlling standard for the mitigation allowed by law The Court is entrusted with the duty of ruling whether the matter relied upon is capable of depriving an ordinary man of his self-control". The same considerations prevail where the matter depends upon common law alone, or upon the impact of common law doctrine upon statutory enactment (as in New South Wales). As Lord Devlin said in an extra-judicial utterance - his Hamlyn lecture on Trial by Jury (1958) p. 86 - there is a theoretical difficulty in reconciling a direction to a jury that they cannot acquit of murder on the ground of provocation with the decision in Woolmington's Case [3] . But however that may be, the common law rule is now well established. If there be any material on which a reasonable jury might find that there was such provocation as could in law extenuate the crime, the question whether it did so must be left to them under proper directions as to the conditions or elements that must exist in fact if it is to have that effect. It is for them to consider whether those conditions in fact existed. Unless they are sure they did not, the accused is entitled to the benefit of their doubt. That is to say at common law, as now understood, it is for the prosecution to prove that the killing was unprovoked; and the question of provocation ought not to be withdrawn from them, the jury, if there be evidence which could create a reasonable doubt: see Chan Kau v. The Queen [1] ; Bullard v. The Queen [2] ; Bharat v. The Queen [3] ; Lee Chun-Chuen v. The Queen [4] .

1. (1937) 58 C.L.R., at pp. 217, 218. 2. [1935] A.C. 462. 3. [1955] A.C. 206. 4. [1957] A.C. 635. 5. [1959] A.C. 533. 6. [1963] A.C., at pp. 229, 230.

But where does the onus of proof of provocation lie by the law of New South Wales? The language of s. 23, read by itself, clearly means that it is for the jury to decide on a trial for murder whether there was provocation, but that they are not to allow it to extenuate the crime unless they find the several matters laid down by the proviso in fact existed. That is not surprising, because in 1883, and for long afterwards, indeed until Woolmington's Case in 1935, few lawyers would have questioned that at common law the proof of provocation as a mitigating defence lay on the accused. Sir Michael Foster had said that "whoever would shelter himself under the plea of provocation must prove his case to the satisfaction of his jury. The presumption of law is against him, till that presumption is repelled by contrary evidence": op cit. p. 290. We know that this is not now the law, although the history of the law of homicide left little room for doubt that formerly it was. What now are we to make of statutory provisions about provocation which when enacted assumed the law to be as Sir Michael Foster stated it? The answer is not easy. There are some cases in which statutory language has not stood in the way of the application of the modern doctrine: see R. v. Kahu [5] and Kwaku Mensah v. The King [6] . The statutes in question in those cases were in less explicit terms than is s. 23. But it seems that the provisions of the Criminal Code of the Gold Coast, which were in question in the latter case, must have been read as requiring the accused to establish his defence of provocation, had it not been for the strength and length of the golden thread discovered by Woolmington's Case [7] . Is the language of s. 23 too stubborn and intractable to yield in the same way? Is the section to be classified as one of the "statutory exceptions" to which Viscount Sankey referred? It certainly was not enacted to create an exception: quite the reverse. It was not meant to deprive the law of New South Wales of any basic principle of the common law. And, although I recognize the difficulties, I am not prepared to say that it does prevent the reception into the criminal law of New South Wales of a rule that has now been received as a fundamental principle of criminal justice in other lands whose law is founded on the common law. In the spirit of Woolmington's Case [8] and according to the principle of the cases referred to above, I think we should regard s. 23 as laying down the conditions necessary for positively reducing murder to manslaughter by reason of provocation; but as not touching the negative position when the jury are in doubt whether the crime of murder, which means, and always has meant, an unprovoked killing, is established. If it be that I am wrong in this view, then I hope the section will be repealed and recast in a form in harmony with the modern views of responsibility for homicide that prevail elsewhere. But, whether I be right or wrong as to the effect of s. 23 on the onus of proof, matters not to my conclusion that this case was one in which the question of provocation should have been submitted to the jury, and that they should have been directed as to the several matters set out in s. 23, which would arise for their consideration as questions of fact. Taking these in order:

1. [1947] N.Z.L.R. 368. 2. [1946] A.C. 83. 3. [1935] A.C. 462, at p. 481. 4. [1935] A.C. 462.

The conduct of the dead man during the hour or two before he met his death could be thought by a jury to be "reasonably calculated to deprive an ordinary person of the power of self-control". He had ignored the complaints of the accused against his attentions to his wife and had derided his remonstrances against his apparent plan to seduce her from him; he had taunted him by lascivious boasting of the enjoyment he expected to have by adulterous intercourse with her; he had jeered at his small stature and physical inability to prevent him taking his wife away; and then he had taken her off on his bicycle, she going with him despite the entreaties of the accused and of the eldest of the six children whom she was deserting. A jury could find too the next requirement, namely that this conduct did in fact deprive the accused of the power of self-control. They would have to consider all the circumstances. The accused was emotional, weeping, filled with resentment, in a state of mind in which he could bear no more and anything more might throw him into a transport of passion.

The statute next requires that the act causing death be done "suddenly, in the heat of passion without intent to take life". This is not quite the same thing as saying that it must be done in the heat of a sudden passion. It is not, I think, required either by the statute or at common law that the first beginning of emotion must not be earlier than just before the fatal act; nor do I think it is necessary that the provocative conduct should be a single isolated act. It may be an episode in a series of incidents, an episode which, because of what had gone before, proved to be beyond endurance and led to an onset of ungovernable passion. In this case the act causing death was the stabbing and cutting of the throat of the victim. Was there any evidence that this act was done suddenly in the heat of passion in the relevant sense? I think there was. It was for the jury to say what conclusion they would draw from it. There are cases in the books in which an accused, after some provocation, went off to get a knife or other weapon and then returned with it and killed. That was not treated as necessarily preventing reliance upon the provocation. All the circumstances must be considered. General statements about passion having time to cool do not, I think, enter much into a case such as this. It does not turn on a precise counting of the time, two hours or so, over which the episode of the afternoon extended. During the whole of that time the passion and emotion of the accused were mounting, not declining; and during part of that time his resentment and distress were being aggravated by new insults and further taunts that the jury might think would make any man in that situation the more ready to lose his self-control. They might think that, to use again the words of East that I have already quoted, the conduct of the dead man "would in human frailty heat the blood to a proportionate degree of resentment, and keep it boiling to the moment of the fact". But was it open to the jury to say that the fatal act was not only done suddenly and in passion, but also without intent to take life, in the sense, as I understand it, those words bear in the statute? There was much against this. The accused, before he went in pursuit of his wife and the man whom he killed, had spoken of killing him. On catching up with them, he lost no time in actually killing him. And afterwards he told more than one person that he had meant to kill him, and that he had set out to do so. These utterances were however themselves the products of continuing emotion. In his evidence he said that he set out in his motor car with the thought only of trying to get his wife to come back; that his attack was not premeditated, but that he lost control of himself when he saw his wife and the man together on the road; that his actions were done in a fury that then came over him and without his really knowing what he was doing. A jury might not accept this. They might think that what he did, although done in a time of great tribulation, was not done of a spontaneous impulse, but wilfully and vengefully and after some deliberation. But these it seems to me were the very matters that the jury had to consider. That their conclusion may have been right is immaterial if the trial miscarried because they were not rightly directed as to what was the question they had to consider. I would recall what Fullagar J. said in Mraz v. The Queen [1] . He spoke of "the long tradition of the English criminal law that 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. It is for the Crown to make it clear that there is no real possibility that justice has miscarried" [1] . In this case, far from the Crown doing that, the Solicitor-General has appeared before us to say that there is a very real possibility that justice, justice according to law, has miscarried. It is not that the trial was not carefully and fairly conducted by the learned trial judge. It was. But in a difficult situation, he, mistakenly as I see it, withdrew from the jury's consideration a matter they should have been directed to consider.

1. (1955) 93 C.L.R. 493. 2. (1955) 93 C.L.R., at p. 514.

I would grant special leave to appeal, allow the appeal and order a new trial.