Van Den Hoek v The Queen

Mr. Van Den Hoek was later taken to hospital where he died. An examination of his body revealed two wounds - a major stab wound below the left shoulder blade which passed into the chest and a superficial linear wound lower down on the back. The first wound had penetrated the lung and caused a haemorrhage that resulted in his death. The applicant said that she did not have the knife in her hand at any time after she left the house and had no idea how Mr. Van Den Hoek got the second wound.

In some material respects the evidence of the applicant is in conflict with that of an independent witness, a Mr. Boan, who happened to be driving past the house at the relevant time. Mr. Boan saw Mr. Van Den Hoek on the verge between the house and the roadway. He was crouched on his knees and on one hand; with the other hand he was trying to protect himself from the applicant who was standing over the top of him throwing a brick at him. Mr. Boan turned his car around, intending to help Mr. Van Den Hoek, and when he had done so saw that the applicant had a knife in her hand and was apparently lunging towards Mr. Van Den Hoek's back. Mr. Van Den Hoek, who by that time was standing, and staggering or swaying rather than walking, said (although the evidence does not precisely fix the time when he said it): "Help me. She's trying to kill me." The applicant then went inside the house, although she later came out on several occasions, on one of which she said that Mr. Boan could take the deceased inside and lie him down.

Mr. Boan said that the applicant at first seemed quite calm, but later appeared to be acting hysterically; he said: "She sort of just seemed to be whimpering a little bit and her shoulders were going up and down." Soon after these incidents the applicant was seen by a medical practitioner who had been summoned to the scene. He said that when he first saw the applicant she was hyperventilating very rapidly and her face and hair and arms were very wet. When asked to explain what he meant by "hyperventilating" he said: "She was breathing very rapidly, much more rapidly than is normal. This is a condition which is usually associated with someone under extreme anxiety or upset. It does interfere with their ability to think and to be in contact with what is happening around them. At the time I saw her she could not speak very easily and I found I had to ask the same question a number of times, and even then she sometimes did not give me any answer at all. Sometimes she only answered with two or three words at a time." Over the next hour and a half or so he tried a number of different techniques to try to stop the hyperventilation but without result; he said: "She remained in a state of agitation and continued to hyperventilate."

At the trial counsel for the applicant informed the learned trial judge that the only issues were intention and self-defence. The learned trial judge directed the jury that there was "nothing in the evidence in the present case to sustain a plea of provocation". The applicant herself did not in her evidence suggest that she had lost her self-control. She did say that she was terrified and acted as she did to defend herself.

The question on which the learned members of the Court of Criminal Appeal disagreed was whether the learned trial judge erred in failing to direct the jury on the issue of provocation. Neither the fact that the applicant did not expressly say in evidence that she had been deprived of the power of self-control, nor the fact that counsel in effect told the learned trial judge that provocation was not an issue, absolved the learned trial judge from the necessity of leaving that issue to the jury if there was some evidence fit for its consideration. In Bullard v. The Queen [1] Lord Tucker, delivering the reasons for the judgment of the Judicial Committee, said:

It has long been settled law that if on the evidence, whether of the prosecution or of the defence, there is any evidence of provocation fit to be left to a jury, and whether or not this issue has been specifically raised at the trial by counsel for the defence and whether or not the accused has said in terms that he was provoked, it is the duty of the judge, after a proper direction, to leave it open to the jury to return a verdict of manslaughter if they are not satisfied beyond reasonable doubt that the killing was unprovoked. That statement is amply supported by authority: see Mancini v. Director of Public Prosecutions [2] ; Kwaku Mensah v. The King [3] ; Lee Chun-Chuen v. The Queen [4] ; Parker v. The Queen [5] ; Da Costa v. The Queen [6] ; Pemble v. The Queen [7] ; Sreckovic v. The Queen [8] . 1. [1957] A.C. 635, at p. 642. 2. [1942] A.C. 1, at p. 7. 3. [1946] A.C. 83, at pp. 91-92. 4. [1963] A.C. 220, at pp. 232-233. 5. (1964) 111 C.L.R. 665, at p. 681; [1964] A.C. 1369, at p. 1392. 6. (1968) 118 C.L.R. 186, at p. 213. 7. (1971) 124 C.L.R. 107, at pp. 117-118, 132-133. 8. [1973] W.A.R. 85, at p. 90.

The question that then arises is whether there was evidence which, if believed, might reasonably have led the jury to return a verdict of manslaughter on the ground of provocation. With all respect to the views of the majority of the Court of Criminal Appeal in the present case that question should be answered in the affirmative. The jury were entitled to accept the evidence of the applicant, in its material respects, notwithstanding that on some points there was a conflict between her evidence and other evidence. If they did accept the material parts of her evidence they were entitled to form the view that the conduct of Mr. Van Den Hoek was provocative and that by reason of that provocation the applicant was driven to lose her self-control and in consequence to do the acts that resulted in the death. They might further not unreasonably have concluded that a reasonable (or ordinary) woman might, in consequence of the provocation, be so rendered liable to loss of control as to do what the applicant did and that the applicant's actions were not disproportionate to the provocation. These were all questions for the jury and it is trite to say that in a case of provocation all that the defence need do is to point to material which might induce a reasonable doubt. Wallace J. felt that consideration of the question of provocation would be a mere exercise in speculation, and Kennedy J. said that he was unable to accept that there was sufficient evidence that the acts of Mr. Van Den Hoek caused loss of self-control on the part of the applicant. However if the applicant's evidence was accepted the conduct of Mr. Van Den Hoek was clearly provocative, and there was strong evidence that she was in an hysterical or agitated condition and her very actions bespoke loss of self-control.

We have concluded that the case is one in which the question of provocation should have been left to the jury and that the failure to leave it constituted a miscarriage of justice. In the event that the applicant was successful, counsel for the Crown submitted that we should order a new trial rather than substitute a verdict of manslaughter, and since it would of course be open to a jury entirely to disbelieve the applicant, there must be a new trial on a charge of murder.

It is necessary to mention two other matters. It was objected that the evidence of Mr. Boan that Mr. Van Den Hoek said "Help me. She's trying to kill me" was inadmissible and highly prejudicial. The respondent submitted that the statement of Mr. Van Den Hoek formed part of the res gestae. It is unnecessary that we consider that submission for the purpose of deciding this appeal or for the purpose of giving guidance to the trial judge on a new trial. If the evidence be strictly admissible, it will nevertheless be necessary on the retrial to consider whether it ought to be excluded in the exercise of a judicial discretion. The grounds for exercising a discretion in favour of admission will not be as weighty as on the original trial when the intention to kill was in issue. Although the deceased's statement appears to be relevant to the issues of self-defence and provocation, there is a real risk that it will prove more damaging to the accused than its true probative force would warrant. It is preferable that the evidence be excluded on the retrial.

The complaint was also made that the applicant was required to demonstrate the angle at which the knife entered the body of Mr. Van Den Hoek by holding a ruler against the back of the court usher, who was standing while the demonstration occurred, whereas on the applicant's evidence Mr. Van Den Hoek was not standing when he was stabbed. That fact was however obvious to the jury, and it was within the discretion of the trial judge to allow the demonstration to be held. If any similar demonstration is sought at a new trial, the trial judge then will no doubt consider the possible danger that it might mislead the jury.

For these reasons we would grant the application for special leave to appeal; we would allow the appeal, set aside the conviction and order a new trial on a charge of murder.

The principal issue in this application for special leave to appeal is whether the Court of Criminal Appeal (Wallace and Kennedy JJ., Burt C.J. dissenting) was correct in concluding that the evidence did not warrant the trial judge putting the defence of provocation to the jury at the applicant's trial for the murder of her husband. Kennedy J. considered that to put the issue to the jury would have amounted to an invitation to them to construct a defence "out of speculation and suppositions about mere possibilities", to use the words of Windeyer J. in Da Costa v. The Queen [9] . Wallace J. thought likewise. Kennedy J. seems to have regarded the applicant's testimony as consistent with self-defence, but not with provocation, observing:

On her evidence, she fled to the bathroom for refuge. She was terrified and scared when she stabbed the deceased and she then ran. She was not angry. She later picked up the brick to defend herself. His Honour found that a causal connexion between the possibly provocative acts of the deceased and the acts causing death could not reasonably be inferred. In making this finding his Honour appears to have thought that the deceased's acts did not result in a sudden or temporary loss of self-control by the applicant or, alternatively, that loss of self-control due to fear, unaccompanied by anger, could not satisfy the requirements of the doctrine of provocation. 1. (1968) 118 C.L.R. 186, at p. 202.

With this in mind I turn to the evidence so far as it relates to the issue of provocation. According to the evidence of the applicant, she had been separated from her husband since June 1984. He wanted a divorce to which she did not agree because she wished him to return to the matrimonial home where she continued to reside. On the morning of the day in question, 23 February 1985, he came to the home and cleaned the pool at the back of the house. At about 10.45 a.m. he entered the kitchen in an aggressive mood, demanding a divorce. When the applicant demurred, he said "I want it now" and "I'm going to kill you". The deceased came towards her with a knife, blocking the door. The applicant thereupon ran through the house to the bathroom, intending to lock the door against him, but he was too quick and entered the bathroom before she could close the door. He was carrying a knife.

The applicant described what then happened in these terms:

He came at me and I was terrified. I didn't know what to do. I backed away as far as I could and started lashing out with my legs and I hit him and he fell down, he slipped. He dropped the knife and I was so scared I just bent down, picked the knife and stabbed and ran. I didn't know what happened.

The applicant's version of events was that she then ran through the house and outside to the gate, pursued by the deceased. She picked up a brick and threw it at him, retrieved the brick, or part of it, and hit him with it. She said the deceased had the knife in his right hand.

Medical evidence indicated that the deceased died from a stab wound to his left lung, inflicted on his back below the shoulder blade. He also sustained injuries to his head which were consistent with his having been struck by a brick. The medical evidence was that the stab wound would not have instantly killed the deceased. It would have resulted in death some ten minutes or so later through loss of blood welling rather than gushing from the wound. The doctor acknowledged that the wound would not have prevented the deceased from walking for some five minutes or indeed chasing the applicant for a shorter time.

The applicant sustained a large bruise on her right arm in the upper region, as well as smaller bruises on that forearm and a bruise on the back of her right hand. In evidence she was unable to state precisely how the bruising occurred but she acknowledged that it may well have occurred in the struggle in the bathroom. There was blood in the bathroom, though it was suggested that the presence of this blood was to be explained by the applicant washing herself after the incident.

Dr. Wilson, who was called to the scene by the police, gave evidence that the applicant "was hyperventilating very rapidly" and that "Her face and hair and arms were very wet". He went on to describe her condition in this way:

She was breathing very rapidly, much more rapidly than is normal. This is a condition which is usually associated with someone under extreme anxiety or upset. It does interfere with their ability to think and to be in contact with what is happening around them. At the time I saw her she could not speak very easily and I found I had to ask the same question a number of times, and even then she sometimes did not give me any answer at all.

At the trial counsel for the accused relied on the foregoing account of events, based largely on the applicant's evidence in chief and uncontroverted medical evidence, to support a plea of self-defence. No defence of provocation was raised, nor was the trial judge requested to direct the jury on provocation.

The strength of the case of self-defence and of the defence of provocation now sought to be raised was affected by the evidence of an independent bystander Mr. Boan, who was driving slowly along the street when he saw the deceased crouching down and the applicant throwing a brick at him two or three times, hitting him around the head. According to Mr. Boan, the deceased was trying to get away and raised his left arm to protect himself. Mr. Boan noticed that the applicant had a knife in her hand and that she made a lunging motion towards the deceased's back with the knife, but he could not say whether she connected. Mr. Boan then went to the deceased's assistance and the deceased said to him: "She's trying to kill me."

In her evidence the applicant denied that she had a knife in her hand outside the house and asserted that she only had a knife in her hand in the bathroom. When asked whether she had any intent when she stabbed him, she said "No. I just wanted to slow him down so he couldn't kill me."

Whether the evidence, as thus outlined, raised an issue of provocation fit for the consideration of the jury requires some examination of the doctrine of provocation, so far as it relates to aspects germane to the findings made by the Court of Criminal Appeal. The effect of provocation is not so much to negate the existence of an intention to kill or do serious bodily harm, which is an essential element in the offence of murder, as to deprive him of his self-control (see the discussion of the doctrine by Windeyer J. in Parker v. The Queen [10] ), thereby reducing the offence to manslaughter. This is because manslaughter was said to consist of the unlawful killing of another without any malice express or implied: Stephen, Digest of the Criminal Law, 9th ed. (1950), p. 221. Provocation may occur where a person does intend to kill or inflict serious bodily harm but his intention to do so arises from sudden passion involving loss of self-control by reason of provocation: Parker [11] ; and on appeal [12] ; Johnson v. The Queen [13] ; Lee Chun-Chuen v. The Queen [14] .

1. (1963) 111 C.L.R. 610, at pp. 652-653. 2. (1963) 111 C.L.R., at pp. 629-630, 652-653, 658-659. 3. (1963) 111 C.L.R., at p. 679; [1964] A.C. 1369, at p. 1389. 4. (1976) 136 C.L.R. 619, at p. 634. 5. [1963] A.C. 220, at p. 228.

Traditionally the onset of sudden passion involving loss of self-control characteristic of provocation has been associated with acts or actions which provoke the accused to uncontrollable anger or resentment (East's Pleas of the Crown (1803) vol. 1, p. 238; Law Reform Commissioner for Victoria, Provocation and Diminished Responsibility as Defences to Murder , Report No. 12 (1982), pp. 7-8), a notion that may be traced back as far as Aristotle: Nicomachean Ethics, Bk. V, p. 8. Indeed, the historical concept of provocation as a defence has reflected the ordinary meaning of the word, i.e., an act or action that excites anger or resentment. These days, however, judicial discussion of the doctrine places emphasis on the accused's sudden and temporary loss of self-control, without necessarily attributing that loss of self-control to anger or resentment (Johnson [15] ), except in so far as it is asserted that the act which causes death was done as a result of passion or, as it is colourfully expressed, "in the heat of passion": Moffa v. The Queen [16] ; Parker [17] ; Johnson [18] . This qualification is of some importance because s. 281 of the Criminal Code W.A., which deals with killing on provocation, speaks of the act causing death being done "in the heat of passion caused by sudden provocation, and before there is time for his passion to cool".

1. (1976) 136 C.L.R., at pp. 634-636. 2. (1977) 138 C.L.R. 601, at pp. 612-613. 3. (1964) 111 C.L.R., at p. 679; [1964] A.C., at p. 1389. 4. (1976) 136 C.L.R., at p. 651.

In Anglo-Australian criminal law provocation and self-defence are distinct and separate defences. Provocation is more limited in its area of operation and in its consequences. And there is a difference in the elements of the two defences. Loss of self-control is essential to the first, but not to the second. It has been said that a loss of self-control caused by fear, panic or mental instability cannot be brought within the defence of provocation: Ashworth, "The Doctrine of Provocation", [1976] Cambridge Law Journal, 292, at p. 297. But the better view is that expressed by Professor Glanville Williams in his Textbook of Criminal Law, 2nd ed. (1983), p. 524: "Anger is the domain of the law of provocation, fear that of the law of private defence - though fear is also capable of amounting to provocation."

No doubt it is true to say that primarily anger is a feature of provocation and fear a feature of self-defence. But it is too much to say that fear caused by an act of provocation cannot give rise to a defence of provocation. In Reg. v. Tikos [No. 1] [19] Smith J. expressly recognized that it was sufficient to make out the defence "if there was circumstantial evidence of a loss of self-control, due to a mixture of fear and anger". Indeed, the majority decision in that case seems to have proceeded on this ground.

The narrow view that loss of self-control due to fear stands outside the doctrine of provocation is the product of the terms in which the doctrine has been enunciated in the earlier decisions. The circumstances of these cases were such as to invite discussion in terms of anger, retaliation and passion. And the doctrine of provocation emerged when the law of murder and manslaughter was in course of development: Parker [20] . Because at that time malice aforethought or premeditation was thought to be an essential element of murder, provocation was held to negate malice. Now that the law of murder no longer places emphasis on malice aforethought the doctrine of provocation centres on loss of self-control. The references to passion, though lingering reflections of the old law, serve to underline the requirement that the loss of self-control must be sudden and temporary.

When all this is understood, there can now be no convincing reason for confining the doctrine to loss of self-control arising from anger or resentment. The doctrine naturally extends to a sudden and temporary loss of self-control due to an emotion such as fear or panic as well as anger or resentment. This extension of the defence conforms not only to the conceptual relationship between the doctrine and the mental elements in the offences of murder and manslaughter but also to the emphasis given in modern judgments to a sudden and temporary loss of self-control as the central element in the doctrine.

The Supreme Court of Western Australia has held that s. 245 supplies the meaning of "provocation" for the purpose of s. 281: Sreckovic v. The Queen [21] . The emphasis in s. 245 is on a wrongful act or insult of such a nature as to be likely, when done to an ordinary person, "to deprive him of the power of self control". On the other hand the Supreme Court of Queensland has held, not without dissent, that the equivalent section to s. 281 in the Queensland Criminal Code adopts the common law on provocation: Reg. v. Johnson [22] ; Reg. v. Callope [23] . This view was indorsed in Kaporonovski v. The Queen [24] , by McTiernan A.C.J. and Menzies J. [25] and possibly by Walsh J. [26] . Whether one looks to s. 245 or to the common law for elucidation, the defence of provocation for which s. 281 provides should be understood as embracing a sudden and temporary loss of self-control due to an emotion such as fear or panic as well as anger or resentment. Of course a killing in fear or panic, as distinct from anger or resentment, may not amount to murder at all because it is unaccompanied by the requisite intention: ss. 23 and 281.

1. [1973] W.A.R. 85. 2. [1964] Qd R. 1. 3. [1965] Qd R. 456. 4. (1973) 133 C.L.R. 209. 5. (1973) 133 C.L.R., at pp. 218-219. 6. (1973) 133 C.L.R., at pp. 224-225.

If the doctrine of provocation were confined to loss of self-control due to anger or resentment, as distinct from fear, then the conclusion reached by the majority in the Court of Criminal Appeal might well be sound, provided that the applicant's evidence excluded any reasonable inference that she was overcome by anger or resentment when, on her account, the deceased attacked her in the bathroom. However, for the reasons given, the doctrine of provocation is not confined in this way.

The evidence was sufficient to raise the defence for the determination of the jury. The applicant testified that she was terrified by the deceased's attack on her. The uncontradicted medical evidence established, not only that she was in a state of extreme anxiety, but also that her condition was such that her ability to think and relate to what was happening had been impaired. True it is that she did not testify to her sudden loss of self-control. But the absence of self-control may be inferred from her state of fear and anxiety. That the loss of self-control was sudden and temporary and that it was caused by the acts of the deceased, deposed to by the applicant, might also be reasonably inferred. In passing I should mention that Kennedy J.'s comment "She was not angry" does not precisely reflect the applicant's evidence. She certainly stated that she was not angry when the deceased demanded a divorce, but she was at no time asked whether she was angry when the struggle occurred in the bathroom and continued outside.

The failure of an accused person to testify to loss of self-control is not fatal to a defence of provocation or a case in which self-defence is raised. Because the admission of loss of self-control is bound to weaken, if not destroy, self-defence, the law does not place the accused in a dilemma: Lee Chun-Chuen [27] . The jury's capacity to infer loss of self-control from appropriate facts is underscored by the comment of Lord Devlin, speaking for the Judicial Committee, in Lee Chun-Chuen [28] that a jury would be entitled to infer loss of self-control from facts suggesting a possible loss of self-control, even if the accused expressly denied loss of temper, especially when the nature of the main defence would account for the falsehood. Of course, an admission of fear is not as antagonistic to self-defence as an admission of anger. None the less the point remains that the absence of direct evidence of loss of self-control is explicable when self-defence is an issue with the result that the jury is entitled to infer it in the absence of direct evidence.

1. [1963] A.C., at pp. 232-233. 2. [1963] A.C., at p. 233.

It has been repeatedly held that if there is material on which a jury, acting reasonably, could find manslaughter as a result of provocation, it is the duty of the trial judge to put the issue to the jury, even if there is no suggestion at the trial that the issue should be put to the jury: Parker [29] ; Pemble v. The Queen [30] .

1. (1964) 111 C.L.R., at p. 681. 2. (1971) 124 C.L.R. 107, at pp. 117-118.

In the result I agree with the judgment of Burt C.J. in the Court of Criminal Appeal on the issue of provocation.

I would grant special leave to appeal, allow the appeal, set aside the conviction and order a new trial on the charge of murder.