27 The correctness of the assumption in Withers, that by reason of the statutory alteration of the common law, the trial Judge had been correct in leaving, as provocation, statements by the wife of the accused that she would not return home and "was going to have a good time", was left for another day.
28 That the enactment of a statutory provision, governing the law of provocation, should be seen as involving a deliberate departure from the long prevalent common law approach that the kind of conduct which could as a matter of law, constitute provocation reducing murder to manslaughter, was somewhat confined, and did not include a case of mere words, is supported by the observations of the High Court, to that effect, in Stingel (1990) 171 CLR 312 at 323.
29 The question which arises in the current case is to be determined in the light of the further amendment to s23 effected in 1982, the purpose of which was to ensure that conduct may be provocative, in the legal sense, whether it occurred immediately before the act or omission causing death or at any previous time; and also to make it clear that any conduct of the deceased towards or affecting the accused, may be the basis of the defence: Hansard Legislative Assembly 11 March 1982, pp 2482 to 2486.
30 It is now accepted, it would seem, whether the law as to provocation is governed by the common law or by statute or code, that words, particularly those of "an appropriately violent character" can qualify as provocation in law: Dutton (1979) 21 SASR 356; Romano (1984) 36 SASR 282; Allwood (1975) 18 A Crim R 120.
31 The expression "conduct" where used in s 23(2)(a), is itself sufficiently wide to include words, as well as physical acts (which gestures in substance are), directed towards or affecting the accused. So much is indicated by the words in parentheses in the section, which are words of inclusion rather than of addition. The legislative intention in this regard, it may be assumed, was to preserve the availability of the defence, provided under the repealed provision, for those cases where the conduct of the deceased comprised insulting words or gestures, that might properly be categorised as gross, rather than matters of mere insult.
32 It does not necessarily follow from the words in parenthesis, that the category of words or gestures, that can qualify as conduct for the purpose of S23(2)(a), is to be confined to matters of insult. In most cases, the relevant words or gestures will be of that genus. I am not, however, persuaded that the relevant conduct, so far as words or gestures are concerned, should necessarily be confined to words or gestures that assume the description of an insult. Where they are of that character, and they stand alone, then it is reasonable to expect that they should answer the description of being gross, since their potential effect is to reduce murder from manslaughter.
33 It is not, however, difficult to imagine words or gestures which are violent, threatening, or otherwise distressing which do not answer the description of an insult, yet which can be highly inflammatory. It is difficult to accept that the Legislature intended, when amending the
34 Section in 1982, to exclude them from the range of "conduct" that is capable of constituting provocation. For example, it has been held that words amounting to a threat to "cry rape" unless the appellant paid over some money, can qualify as provocation: Webb (1976) 16 SASR 309. Moreover, there is abundant authority for the view that particular acts or words which, if viewed in isolation, are insignificant or colourless, may nevertheless constitute provocation when viewed cumulatively with other words, or with other conduct. R (1981) 28 SASR 321 at 326 per King CJ; Stingel (1990) 171 CLR 312 at 325 and Hutton (1986) 20 A Crim R 315 at 317 and 328.
35 The modern development of the law in relation to provocation by words is usefully encapsulated in the judgment of Ormiston JA, in Tuncay [1998] 2VR 19, at 21:
"It should be observed that the proposition about 'mere words' derives from a period in the law when issues as to what constitutes provocation were treated as questions of law to be resolved by the judge and before any direction akin to that now given to juries (although expressed differently) was first introduced in England in the early nineteenth century: cf R v Morly (1666) Kel.53; 84 ER 1079. There at Kel. 55; ER.1080 the judges assembled resolved that 'no words, be they what they will, are in law such a provocation, as if a man kill another for words only will diminish the offence of killing a man from murder to manslaughter": see also R v Mawgridge (1707) Kel 119 at 130-1; 84 ER 1107 at 1112. In my opinion, to the extent that these propositions were subsequently adopted, they should be treated as merely reflecting what the reasonable or, now, "ordinary" person would have been treated by a jury as concluding if provocation confined to words had been allowed to go to the jury. The difficulties inherent in taking that view in the twentieth century and the qualifications put on the broad proposition may be seen in Holmes v Director of Public Prosecutions and Moffa : cf. Laws of Australia 'Criminal Offices (Title 10) para. 92. The general principles as to provocation having now been restated in Stingel and Masciantonio , the question may now be left to the jury as the constitutional tribunal of fact to decide what is the ordinary person's response to the use of allegedly provocative words, whatever be their form and context, but subject to the power of the trial judge to take away from the jury any claim of provocation which could in no circumstances properly lead to a verdict of manslaughter."
36 It follows, in my view, that a direction suggesting that words alone are not capable of giving rise to an issue of provocation unless they amount to a gross insult, would be incorrect if it was understood as excluding all other kinds of verbal communication.
37 It is not the case, in my view, that provocation is confined, in the case of words, to matters of insult strictly understood. Other kinds of words may qualify as provocative conduct, such as words of threatened violence, blackmail, extortion and so on. They are equally capable of provoking strong feelings, and they may or may not be accompanied by physical acts. They do, however, need to be of a sufficient violent, offensive, or otherwise aggravating character to be capable of satisfying the third element of provocation outlined above. Mere words of abuse or insult would not normally qualify.
38 The question of law whether there is material in the evidence capable of constituting provocation remains one for the Judge.
39 The test for the trial Judge, as framed in Stingel at 334 and cited with approval in Masciantonio (1985) 183 CLR 58 at 67 to 68, is:
"whether, on the version of events most favourable to the accused which is suggested by material in the evidence, a jury acting reasonably might fail to be satisfied beyond reasonable doubt that the killing was unprovoked in the relevant sense".
40 If the evidence is capable of meeting the test stated, the defence is to be left to the jury Stingel at 333.
41 To the extent that the direction might have indicated that words cannot qualify as provocation unless they constitute a gross insult, it accordingly went too far. That, however, is not the end of the matter, since that direction needs to be understood in the full context of the summing up.
42 In this regard it is critical to note that, at no point in the summing up, did his Honour take away from the jury the remark concerning the suicide of the appellant's father as being incapable of constituting provocation, or suggest that the jury exclude it from their consideration if they thought that it did not involve a gross insult. At the highest, the appellant submitted that by inference, the jury were directed that unless they reached the conclusion that those words were grossly insulting, then they were to leave this conversation out of consideration. This had an added significance, so it was submitted, if they were satisfied that the victim had not struck the appellant, since that would leave the spoken words as the only conduct on the part of the victim that preceded the incident.
43 This possibility was not, however, canvassed by his Honour. On the contrary, the jury were consistently instructed that they could take into account the remark concerning the appellant's father when considering the issue of provocation, that is unless the Crown left them satisfied beyond reasonable doubt that no such remark was made.
44 So it was that his Honour said:
There is material before you, if you accept it, which establishes some conduct on the part of the deceased during the course of that night, and perhaps some words uttered by the deceased, which are the matters giving rise to the possibility that this was a killing done under provocation, the possibility which the Crown must exclude beyond reasonable doubt . Those include the assertion made by the accused on at least two or three occasions that the deceased hit the accused, and also the faint suggestion by the accused in the course of his electronically recorded interview, considerably expanded of course in his evidence to you, that the deceased had made a comment about the circumstances in which the father of the accused had met his death ; and also … you need to consider the evidence of Michael Grant's behaviour, no doubt irritating and no doubt sometimes quite unpleasant, of repetitive nagging, for example, about the rent or repetitive comment on matters which the accused regarded as no part of Michael Grant's concern, which is what I take the accused to mean during his repeated references to the deceased "dribbling" in his ear.
…
In reaching conclusions as to the effect of Michael Grant's conduct on the accused that night and as to the capacity of that conduct to cause an ordinary person to lose self-control, you must, as Mr. Zahra very properly said, look at all of the relevant conduct together, not each part of it in isolation because that would be unreal. However, before you get to the stage of looking at all of the conduct together, you must look at the evidence to see whether there really is a reasonable possibility that the particular conduct of the deceased took place, whether the Crown has satisfied you beyond reasonable doubt that no such thing occurred. For that it is necessary to look at each aspect of the deceased's conduct on which the accused relies separately from the others."
45 After summarising the evidence in relation to so much of the conduct of the victim as was said to be provocative, involving the punch which the appellant said initiated the fight, his Honour returned to the suicide remark. This was introduced by the observation:
"The second element of conduct on the part of Michael Grant which is relied on as provocation is to be found in the accused's evidence about his reaction to mention of his father's death. The Crown says, in effect, that a consideration of the evidence would lead you to be satisfied beyond reasonable doubt that nothing which may have been said by the deceased about the accused's father, if indeed anything was said, had any role in producing the accused's loss of self-control, particularly in light of the way the topic came up. The Crown submitted that you would be satisfied that nothing at all was said by the deceased on that topic that evening. You may, no doubt, and you probably would, accept that the accused was terribly distressed and traumatised at the time of his father's death. There is no dispute about that. The evidence of his mother about that was not challenged, nor was his own evidence; there is corroboration of it in the records of Trigg House (Exhibit 2) and it is indeed precisely what you might expect. To what extent it was still a problem for him at the time of the killing is a matter for you, and indeed it is a matter for you what was the relevance of that emotional sensitivity to the events with which you are concerned."
46 These passages make it crystal clear that one of the matters left to the jury as potentially constituting provocative conduct included the remarks concerning the suicide of the appellant's father. The issue that was left in relation to it was whether there was any such conversation, and if so whether it had any role in producing a loss of self control. No issue arose as to whether it should be ignored because it might not qualify as grossly insulting. Moreover, these passages made it clear that the alleged blow, and all of the matters discussed, whether they related to rent, or to the appellant's father, or to any other matter about which the appellant considered the victim to have been "dribbling in his ear", were to be considered together, and not in isolation.
47 Had there been any doubt about that, then it would have been entirely put to rest by the direction later given:
"I remind you that in order to determine whether any particular piece of conduct on which the accused relies may have occurred on that night, or whether the Crown has satisfied you beyond reasonable doubt that it did not, it is proper for you to look at the evidence on each of those particular matters directly apart from any other issue, but when you come to resolve the issue whether any conduct on the part of the deceased which occurred that night in fact caused the accused to lose control or may have done so, you should not consider each of the events of that night in isolation, you have to consider together all of the conduct of the deceased as the evidence shows it to you. An event which of itself does not appear to be likely to have caused such loss of control may in fact have done so if it was the culminating event in a sequence of provocative behaviour. If you are of the view that it is reasonably possible that the deceased did say some such things as the accused indicates in the recorded interview, you should not reject the possibility that that in fact provoked his violence without considering everything else that you find may have occurred."
48 Additionally, in directing the jury as to the way that they should deal with provocation, his Honour explained that the first step was to identify the conduct which they were "prepared to recognise as having possibly occurred and provoked a loss of self control on the part of the appellant". Among the possible items identified, his Honour noted, was the "remark made by the deceased about the circumstance of (the) death (of the appellant's father)".
49 Correctly, his Honour explained that, "having identified the provocative conduct which the evidence suggests may have occurred, and which the Crown has failed to prove did not occur," the jury had then to consider "how seriously that conduct may have been perceived by the accused himself", taking into account "what you know of (him), his personality, his condition at the time, and matters in his background which may have given the so called provocative conduct some particular significance to him."
50 In dealing with the remark concerning the suicide, his Honour said:
"You may think that nothing of that kind arises in relation to any physical assault on him by the deceased, if there was such a thing, nor indeed in relation to his reaction to the nagging or niggling by the deceased, but it may be of particular relevance in relation to the trauma of his father's death in the circumstances in which it occurred. His emotional reaction to it, if that appears to you to be the case, the persistence of that emotional reaction or sensitivity right up to the date of the killing, you have to take into account, in determining how seriously the accused may have perceived anything in the nature of provocation, arising from something said by the deceased about his father's death."
51 His Honour followed this with an entirely conventional, and appropriate direction, concerning the possible reaction of the ordinary person in the position of the appellant, to whatever provocative conduct there may have been.
52 On the second day of the summing up his Honour took the jury through the written directions that were provided that day. Nothing was said, in this exercise, that in any way differed from the directions given the preceding day. Nor was anything different said in the supplementary directions which His Honour gave, after the jury had retired, which were the subject of the third ground of appeal.
53 When the summing up is read as a whole it is clear that his Honour left the case to the jury as one which was not dependent on words alone. Moreover, there is no room, in my view, for the inference that the jury was left with an understanding that they were to leave aside the remarks about the appellant's father, or indeed any of the other words spoken by him, if that was all that had been said or done, upon the basis that they were not grossly insulting.
54 Although no objection was taken to the directions at the trial by experienced Counsel appearing for the appellant, I would grant leave under R4 of the Criminal Appeal Rules. However, having regard to the manner in which the summing up was framed, I am satisfied that no miscarriage of justice occurred. The case is suitable for an application of the proviso to S6(1) of the Criminal Appeal Act, 1912.