39 In R v Arden (1975) VR 449 Menhenitt J, after referring to a number of cases extending back to 1837, said:-
"In light of all those authorities I have concluded that for there to be sufficient to constitute provocation, conduct of some kind, whether it be physical conduct or words, on the part of the person killed must take place in the presence of the accused person. The rationale of this rule appears to me to be as follows. If a person actually sees conduct taking place in respect of a third person and he is provoked thereby, it is understandable that he may be provoked to the extent of taking the other person's life and in circumstances which would reduce murder to manslaughter. Where, however, all that happened is that the accused is told something by a third person there enters immediately the element of belief, and there is nothing tangible upon which the accused can be said to have acted."
40 The need for a provocative incident and the requirement that conduct of the deceased occur in the sight and hearing of the Accused hardly leave room for mistake. And if information actually received is not sufficient to amount to conduct constituting provocation, then a fortiori a mistaken belief cannot.
41 Nevertheless, it may be accepted that there is a general principle that an honest and reasonable belief in a state of affairs which, if it had existed, would make an Accused's act innocent constitutes a defence to a criminal charge and one which, if there is evidence raising the issue, the Crown must negative pursuant to its obligation to prove a charge beyond reasonable doubt - Jiminez v R (1992) 173 CLR 572 at 582 and the cases cited. The requirement that any mistaken belief be held on reasonable grounds applies in the area of self defence - Zecevic v DPP (1987) 162 CLR 645 at 661-2.
42 However, as the decision of R v Ianazzone (1983) 1 VR 649 at 655 and the cases referred to in it make clear, "the honest and reasonable belief doctrine requires belief in a state of facts which, if they existed, would made the defendant's act innocent" and a "belief does not excuse if its truth would have meant, not that no offence was being committed, but that some other and different offence was being committed". Here any mistake as to the deceased's conduct could only assist an accused in obtaining a conviction for manslaughter rather than murder. On this ground alone, I would regard the issue of any mistake by the Accused as one which does not arise.
43 Apart from mention of it by Brooking J in R v Kenney, none of the cases that suggest that mistake may be relevant in the area of provocation addresses this topic.
44 How then did it come about that Brooking J directed the jury as he did? Although his Honour had grave reservations as to the correctness of the propositions advanced by the Crown here, he directed the jury in accordance with them because he felt, as a trial judge, he should follow some obiter dicta in a decision of the New South Wales Court of Criminal Appeal in R v Croft (1981) 1 NSWLR 126 at 149-150. His Honour was perhaps influenced also by a decision of the Supreme Court of Canada in R v Manchuk (1937) 3 DLR 343; (1937) 4 DLR 737. My consideration to those authorities, perhaps with more time than Brooking had available in the midst of a trial, finds them unpersuasive.
45 What was said in R v Croft at p149-150 was this:-
"The cases of R v Thomas (1837) 7 Car&P 817; 173 ER 356, R v Letenock (1917) 12 Cr App Rep 221 and R v McCarthy (1954) 2 QB 105 are relied upon in Halsbury, 4th ed vol 11, par 1164, at p620, for this proposition:
'the jury must consider the effect of the provocation on a reasonable man, not a drunken man, loss of self-control arising from the taking of drink or drugs not being in itself an excuse for crime. Where, however, a person, owing to the taking of drink or drugs, makes a mistake of fact, he is entitled, for the purposes of the defence of provocation, to be treated as though the supposed fact was true; hence, if owing to his drunkenness he believed that another was about to make an attack upon him, the jury ought to take that into consideration in determining the issue of provocation.'
Thus a drunken man can have the advantage of an honest (and query reasonable though drunken) mistake which he would not have made if he were sober, but he can only avail himself of it when not only he himself had in fact been provoked by the state of fact which he himself believed to exist but an ordinary sober man, making the same mistake, would also have been provoked to act in the same way. In Archbold 4th ed, at par 2480, at pp1242, 1243, 1244, this is not found to be attractive, but the reason given is that it seems to be inconsistent with the reasoning in Director of Public Prosecution v Majewski (1977) AC 443, which is not applicable in Australia: R v O'Connor (1980) 54 AJR 349."
46 A number of comments may be made about this passage. Firstly, if in the second sentence of the passage quoted from Halsbury the author was directing attention to the issue of how an ordinary or reasonable man might react, the authorities cited do not support the proposition. Those authorities were in fact R v Letenock to which the Court of Criminal Appeal did refer and R v Wardrope (1960) Crim LR 770. In the first of these, the accused, a member of the armed forces had gone to his hut drunk, shouting and singing. The deceased, a corporal told him to be quiet. There seems to have been evidence from the defence that "… an altercation took place between him and the deceased man, in the course of which the latter adopted so violent and provocative an attitude towards the applicant that, in view of his drunken condition, which impaired his judgment, and of the treatment he had received from the sergeant earlier in the day, he misapprehended the intention of the corporal, and anticipated some attack." It seems to have been submitted that the wounds which he inflicted upon the corporal were really the result of a bona fide misapprehension of what the corporal was about to do…"
47 The report goes on to say that "in directing the jury on this part of the case, Rowlatt J said that unless the applicant was so drunk at the time of the commission of the offence as to be absolutely incapable of knowing anything of what he was doing, his drunkenness could afford no answer to the prosecution." It was submitted for the Appellant that "where there is evidence of provocation the drunkenness of the accused can be taken into account in considering what effect the provocation had on his mind" and that when he dealt with the evidence the trial judge did not put before the jury the applicant's own evidence in support of his account of provocation."
48 It was held that "if … there was any evidence that the deceased man approached the applicant in a rough manner, from which the applicant might infer that he was about to deal him a blow, it should have been brought to the attention of the jury in the summing up. … The court has come to the conclusion that there is some ground for the contention that the question should have been left for the jury, whether they believe the applicant's statement that the deceased corporal approached him in a rough and threatening manner which indicated some intention on his part of being violent towards him, as distinguished from using violent language. Therefore, without going further, the Court considers that it would be justified in cancelling the verdict of murder and substituting for it one of manslaughter. … The only element of doubt in the case is whether or not there was anything which might have caused the applicant, in his drunken condition, to believe that he was going to be struck".
49 The report of R v Wardrope is very short. So far as presently relevant all it says is that Edmund Davies J directed the jury:-
"1. Provocation must be such as to deprive a reasonable man, not a drunken man or a violent tempered man, of self control and must in fact deprive the accused of self control. The measures taken by the provoked person must be bear (sic) reasonable relationship to the provocation.
2. Self defence. The steps taken by the defendant must be commensurate with and bear reasonable relationship with the violence threatened or apprehended.
3. Drunkenness. A person whose mind was so impaired by drink as to imagine himself attacked was entitled to take such steps in defending himself as when necessary to meet the imagined attack as if it were real or not exaggerated, subject to the direction on self defence above.
4. In respect of each of the above defences, the burden was on the prosecution to prove their case, to eliminate provocation or self defence and to show that the defendant was not so affected by drink as to be incapable of forming the necessary intent."
50 Secondly, the passage quoted from Halsbury does not indicate in what way the jury ought to take the mistake of fact into account in determining the issue of provocation.
51 Thirdly, it is not apparent why mistakes due to drink or drugs are singled out. Surely, if mistake by the accused as to actions of the person provoking is a relevant factor that should be so however the mistake occurred.
52 Fourthly, as remarks of Brooking J make clear, both the passage quoted and the Court of Criminal Appeal's remarks introduce a great deal of complexity into what should be a fairly simple factual issue - what did the deceased do? His Honour said (at p 472):-
"How a mistake is to operate in relation to the test of the ordinary man is by no means clear, and that difficulty is compounded where, as so often happens, there is a suggestion that the accused was intoxicated. Intoxication is relevant in relation to the actual loss of control but not in relation to the ordinary man: R v Croft; R v O'Neill [1982] VR 150. What is the effect of mistake to be in relation to the ordinary man where drink plays some part in the mistaken belief, or indeed in any case? Croft suggests that one is to ask whether an ordinary sober man making the same mistake as the intoxicated accused might also have been provoked to the necessary extent. The jury may find that difficult. What of a drunken hallucination, at all events if there is no requirement that the belief be reasonable? Compare R v Hoffman (unreported, Full Court, 19 December 1978), where brief mention is made of drunken mistake and hallucinations in relation to self defence. Does one ask whether the sober ordinary man having that hallucination might have been provoked? If there is a qualification that the belief be reasonable, what does this qualification mean? Is it enough that there be some foundation for the belief? Compare the test in Viro in relation to apprehension of an attack for the purposes of self defence.
Those who suggest that mistake will avail are really challenging the supposed fundamental rule that provocation must emanate from the victim by suggesting that it is qualified: see, for example, what is said in R v Manchuk (1937) 3 DLR 343 at p 347, and in Brett & Waller, Criminal Law, 4th ed. pp 179-180."
53 Authority for that "supposed fundamental rule" is to be found in, inter alia, R v Simpson (1915) 11 Crim App Rep 218; R v Duffy (1949) 1 All E R 932 and R v Davies (1975) 60 Crim App Rep 253.
54 Fifthly, in the Court of Criminal Appeal's apparent embracement of the passage from Halsbury, no consideration was given to the apparent departure from the words in s23, "conduct of the deceased" - a departure necessarily implicit in the concept of the accused's belief as to that conduct. Nor was reference made to what is now the accepted requirement in Australian law that a mistake must be reasonable or to the limitations to the doctrine of mistake referred to in R v Ianazzone. In these circumstances, it is impossible to regard any such embracement as authoritative.
55 Nor do I find the decision in R v Manchuk (1937) 3 DLR 343; (1937) 4 DLR 737 persuasive. The decision was made in the context of Section 261 of the relevant criminal code, which contained no requirement that the provocation be by the deceased. Section 261 is set out at (1937) 4 DLR 737 -
"Culpable homicide, which would otherwise be murder, may be reduced to manslaughter if the person who causes death does so in the heat of passion caused by sudden provocation."
56 The majority of the Ontario Court of Appeal said that the matter was to be looked at not from the point of view of the victim but from the point of the view of the prisoner subjectively. The Supreme Court of Canada obviously thought this too wide for they said that the section would not apply where the person killed was not thought by the offender to be responsible for the provocation but held that "as regards the source from which the provocation proceeds, that acts of provocation committed by a third person, which might be sufficient to reduce the offence to manslaughter if the victim had in fact participated in them, may have the same effect where the offence against the victim is committed by the accused under the belief that the victim was a party to those acts, although not implicated in them in fact." The different treatment of the 2 situations as a matter of law does not seem justified by the terms of the statutory provision.
57 The court was clearly to have been influenced by R v Brown (1776) Leitch 148; 1 East's Pleas of the Crown 246 and possibly by Hall (1928) 21 Cr App R 48 at 54 which the Court said "may have been decided upon similar considerations".
58 For my part the report in Hall is too cryptic on which to base any conclusions. The Appellant's case was that he had been attacked by a group of persons earlier and it is not apparent from the report whether that group included the victim of his offence. The court was concerned whether a defence of provocation should have been left to the jury and it had not been.
59 Although Henderson JA in the Ontario Court of Appeal - at p356, 358 - thought R v Brown was not in point as a case where there was an accidental slaying, it does seem to me to provide support for the view that a mistaken view by an Accused that his victim was the author of provocation is to be taken into account. In that case the accused seems to have been involved in a violent affray although behaving with restraint. He was assaulted again several times by a mob of keelmen who ran off. The deceased who the report said "might be mistaken for a keel man was going along about 5 yards from the soldier; but before he past, the soldier went to him and struck him on the head with his sword. The deceased… (a little later) expired… the solider said that he had been badly used; and it was the opinion of two witnesses, that "if he had not drawn his sword, they would both of them have been murdered."
60 The decision of the Court as recorded in Leach was "The Judges were clearly of the opinion, That it was only manslaughter". The headnote reads, "If, on a sudden quarrel between two parties of keel-men and soldiers, the blow intended for an individual of the one party would, if death ensues, have amounted only to manslaughter, it will be only manslaughter, though by accident it kill another".
61 The decision of the court as more fully recorded in East P C was:-
"This was holden manslaughter: it was not murder as the jury had found, because there was a previous provocation, and the blood was heated in the contest: nor was it in self defence because there was no inevitable necessity to execute the killing in that manner."
62 It may not be inappropriate to remember that Brown was decided at a time when the law relating to self defence and provocation seem to have been intertwined - Russell on Crime, 12th edition, volume 1, p 517-8.
63 Brown and Letinock to which I have referred are relied upon by Glanville Williams (1954) Criminal Law Review 740 at p752 as supporting the proposition that "there seems to be no doubt that a mistaken belief in provocation is equivalent to actual provocation." However the author continued by submitting:-
"..there is no "objective" test in respect of the mistake; in other words, the mistake need not be reasonable. As a general principle in criminal matters, a mistake entitles the accused to be treated on the basis that the facts he supposed existed, whether the mistake be reasonable or not."
64 As the cases cited in Jiminez v R (1992) 173 CLR 572 at 582 show, the general principle relied on is contrary to Australian law.
65 It is unnecessary that I refer to a group of other cases including R v Gross (1913) 23 Cox C.C. 455 and R v Porritt (1961) 1 WLR 1372 where actions of the Accused directed at someone who had been guilty of provocation have resulted in the death of innocent parties. These cases seem to me to say nothing on the question of whether "conduct of the deceased" in s23 should be regarded as encompassing mistaken beliefs of the person said to have been provoked.
66 In R v Porter (unreported, Badger-Parker J, 5 July 1990) his Honour expressed the view that "those directions (of Brooking J) given in respect of the common law requirement that provocative conduct be conduct of the deceased are, in my view, appropriate in respect of the New South Wales Acts statutory requirement that provocation be conduct of the deceased …". In Tumanako (1992) 64 A Crim R 149 at 155 Badgery-Parker J, with the agreement of Clarke JA, citing in support R v Kenney and R v Porter, said:-
"… the provocative conduct which may sustain a defence of provocation need not necessarily be conduct of the deceased personally if it is conduct in the presence of the deceased by a person so closely associated with the deceased that it is reasonable for the jury to attribute the conduct of that person to the deceased."
67 In R v Hall [2001] NSWCCA 202 at [48], the Court was content to accept that statement "for present purposes".
68 I have no difficulty in accepting the proposition that within s23 "conduct of the deceased" may include, certainly in circumstances where he is present, conduct for which, in accordance with normal principles of agency, joint enterprise or common purpose, the deceased is responsible. The impact on the person provoked may be just as great and there is nothing in the terms of s23 to exclude the normal rule that what a person may do personally, he may do by an agent. Actions so done may properly be regarded as "conduct of the deceased". (It is unnecessary for present purposes to consider whether the formulation in the passage just cited is as precise an expression of this principle as it perhaps might be.)
69 Badgery-Parker J's remarks in R v Porter were clearly made in the course of a trial and while the Reasons of his Honour from which the passage I have quoted is taken, reveal some consideration of earlier authority in respect of other topics, R v Kenney is the only authority referred to in support of his Honour's conclusion in this regard. And there is nothing in Tumanako to indicate any consideration of the correctness of the second and fourth of the propositions I have quoted from R v Kenney. They were clearly the subject of disapproval by Zelling J in R v Fricker (1986) 42 SASR 436 at 448.
70 There are some other decisions to which reference should be made. In R v Lukins (1902) WN (NSW) 90, Owen and Cohen JJ were of the opinion that, for the purposes of provocation, an accused labouring under a partial delusion must be considered in the same situation as to responsibility, as if the facts, in respect of which the delusion existed were real. Owen J, at least seems to have relied on the answer to the fourth question in R v McNaghten 10 Cl & F 200, viz. "If a person under an insane delusion as to existing facts, commits an offence in consequence thereof, is he thereby excused?" That answer was:-
"(making the assumption that a person labours under an insane delusion as to existing facts only) and is not in other respects insane, we think he must be considered in the same situation as to responsibility as if the facts with respect to which the delusion exists were real. For example, if under the influence of his delusion, he supposes another man to be in the act of attempting to take away his life, and he kills that man, as he supposes, in self defence, he would be exempt from punishment."
71 At least in the case of a sane offender, I see difficulty in reconciling that answer with the remarks of Wilson, Dawson and Toohey JJ in Zecevic v R at p661-2.
72 In at least partial reliance on R v Lukins, in R v Voukelatos (1990) VR 1, Young CJ at p 3 was of the view, obiter, that a delusional belief in a state of facts was capable of amounting to provocation. Murphy J, at p19 seems to take the same view although his Honour refers to the problems that exist when mistake is allowed to intrude. Hampel J, at p25, refers to an earlier decision of his own where he had taken the same view as that embodied in Brooking J's directions in R v Kenney where there had been a mistake as to the identity of the provoker.
73 In Abebe (2000) 114 A Crim R 398 at 415 Charles JA, with whom on this point Coldrey AJA agreed, said that there was much to be said for the view that provocation mistakenly believed to have come from the victim should be available for consideration by the jury, provided however, that the mistaken belief is reasonably held. His Honour remarked that such an approach would be consistent with what was said by Wilson, Dawson and Toohey JJ in Zecevic v DPP but, because the Crown had been content not to challenge that view at the trial and the matter had not been fully argued on appeal, his Honour went no further.
74 In none of the cases in which it has been held that a mistaken belief on the part of an Accused as to the content of the provocative conduct or as to the author of it was relevant has there been any significant consideration as to why, if mistake is to be a relevant factor, it should not be attended with the same limitations as generally in the criminal law. In the emotion charged circumstances where death occurs as a result of provocation, by definition, the provocation occurs before an Accused's loss of control. The Accused is presumably just as able as others to see whence the provocation has come and what it was and while the doctrine of provocation may excuse in some degree his reaction, there is not obviously any reason why he or she should be in any more favoured position than others who have the benefit of the doctrine of reasonable and honest mistake. And insofar as it may be said that the element of lack of self-control is not present in other situations, one might point out that in circumstances of self defence, Zecevic v R makes it clear that the requirement of reasonableness is still insisted upon.
75 Furthermore, it must not be forgotten that insofar as the "conduct of the deceased" may include any mistaken view by the Accused of it, it is that conduct which has to be assessed for the purposes of s23(2)(b)in accordance with what was said by the High Court in R v Stingel (1990) 171 CLR 312 and Masciantonio v R (1994-1995) CLR 183 CLR 58. The fact that the onus is on the Crown to exclude mistake and, even if one puts to one side some of the difficulties adverted to in the passage I have quoted from Brooking J, the need for the exercise of this judgment provides good reason why unreasonable mistakes should not be relevant. And although some of the cases seem to suggest that the mistake might be confined to the identity of the person giving the provocation, if mistake is a relevant consideration, it is not obvious why this should be so. Insofar as s23 uses the expression "conduct of the deceased" to refer to the event which has induced a loss of control and which is to be the subject of the test for self control of the ordinary person, there is no logic in concluding that a mistake as to the "deceased" should be any more significant than a mistake as to the "conduct". If an accused's thoughts are to be determinative of whether any actions were conduct of the deceased, why should an accused's thoughts not be determinative of whether any, and if so what, conduct of the deceased occurred at all? After all, in most situations it is probably the conduct that has greater significance than the identity of the deceased.
76 But I need not further pursue this. In summary, I doubt whether, as a matter of construction of s23 mistakes by an Accused can be regarded as "conduct of the deceased". Even if that view be wrong, the principle for which I have cited R v Ianazzone, viz that "the honest and reasonable belief doctrine requires belief in a state of facts which, if they existed, would made the defendant's act innocent" and a "belief does not excuse if its truth would have meant, not that no offence was being committed, but that some other and different offence was being committed" precludes regard being had to them. And if that also be wrong, the general principle that mistakes must be both honest and reasonable would limit those to which regard could be had.