GROUND OF APPEAL [1.2]: PROVOCATION
36If a person charged with murder acted under provocation as defined in s 23 of the Crimes Act, he or she is entitled to be acquitted of murder but, if the elements of a murder charge are otherwise established, is guilty of manslaughter (s 23(1)). Where there is evidence of provocation, the onus is on the Crown to prove beyond reasonable doubt that the act or omission causing death was not an act done or omitted under provocation (s 23(4); Stingel v R [1990] HCA 61; 171 CLR 312 at 332 - 333).
37Provocation was not raised at the trial by the appellant's counsel but if there was evidence of provocation fit to be left to the jury, it was the duty of the judge to instruct the jury that it was open, on that basis, to it to bring in a verdict of manslaughter (Van Den Hoek v R [1986] HCA 76; 161 CLR 158 at 161 - 162; Stingel at 334). The question for the trial judge to consider in this context 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" (ibid).
38In these circumstances, this Court must consider whether there was sufficient evidence of provocation, as defined in s 23 of the Crimes Act, to require the judge to have left the issue to the jury.
39The starting point is to consider the nature and gravity of "any conduct of the deceased (including grossly insulting words or gestures) towards or affecting the accused" (s 23(2)).
40The appellant's written submissions describe the alleged provocative conduct as follows:
"The victim, although not even aware of himself being involved in a provocative conduct, offered the provocation to the appellant by being involved in an extramarital relationship with the appellant's estranged (but still legally married) wife, and at common law this is a sufficient 'implication' for the provocative conduct. The provocation although not directed at the appellant, it took place in the presence of him in a sufficiently unmistakeable way, by having the victim's car parked at the wife's parking place and by having the lights turned off in the early hours of the night" ([191]).
41In Stingel, the High Court said in relation to s 160 of the Criminal Code (Tas):
"While personal characteristics or attributes of the particular accused may be taken into account for the purpose of understanding the implications and assessing the gravity of the wrongful act or insult, the ultimate question posed by the threshold objective test of s 160(2) relates to the possible effect of the wrongful act or insult, so understood and assessed, upon the power of self-control of a truly hypothetical 'ordinary person'. Subject to a qualification in relation to age (see below), the extent of the power of self-control of that hypothetical ordinary person is unaffected by the personal characteristics or attributes of the particular accused" (at 327).
42This approach is applicable to s 23 of the Crimes Act (Green v R [1997] HCA 50; 191 CLR 334). Accordingly, the appellant's attributes and characteristics are to be considered in assessing the gravity of the provocation which he alleges he faced, but not in considering under s 23(2)(b) whether that provocation might have caused an ordinary person to so far lose his or her self-control as to have formed an intent to kill.
43As it is sufficient under s 23(2)(a) that the loss of self-control was induced by conduct of the deceased "affecting" the accused, it is unnecessary for the conduct to have been directed at or in the presence of the accused (although that it was not may well be relevant to an assessment of how an ordinary person might have reacted to the provocation). As a result, Mr Corbett's conduct was capable of being regarded as conduct of the type to which s 23(2)(a) referred. Further, on the evidence as I have described it, it would have been open to the jury to take the view that the appellant did lose control and was induced to do so by Mr Corbett's conduct. No question of reasonableness of the appellant's response arises at this point. The issue posed by s 23(2)(a) is purely subjective.
44The more relevant inquiry for the purposes of this appeal is whether the conduct of Mr Corbett could have induced an ordinary person in the position of the appellant "to have so far lost self-control as to have informed an intent to kill" (s 23(2)(b)).
45As noted above, the gravity of the alleged provocation is to be assessed having regard to the appellant's personal characteristics. These included an obviously strict morality requiring faithfulness on the part of his wife even after a lengthy separation. For such a person, Mrs Corbett's conduct would have been significant. Of significance also would have been the conduct of Mr Corbett even though he did no more than have a relationship with a woman who was long-separated from her husband. He had no contact at all with her husband (if indeed he knew he existed).
46I do not consider that an ordinary person (who, in accordance with Stingel, is not assumed to have the characteristics of the appellant) might have been induced by Mr Corbett's conduct to lose self-control to such an extent as to have formed an intent to kill Mr Corbett. In my view the formation of a serious intent to kill Mr Corbett is quite beyond the range of possible conduct of an ordinary person in such circumstances. The fact that the appellant had known of the relationship for over seven months is significant in showing that the ordinary person in the position of the appellant would have had, as the appellant did, much time for reflection (see Pollock v R [2010] HCA 35; 242 CLR 233 at [62]). Although the accused's actions need not have occurred "suddenly" after the provocation (see s 23(3)(b)), the passage of time between the provocation commencing and the killing may support the view, as I consider it does in the present case, that an ordinary person in the position of the accused would not have killed the victim.
47As indicated by Barwick CJ in Johnson v R [1976] HCA 44; 136 CLR 619 at 634, "[t]he importance of the fatal act having been taken in the heat of passion may ... be related ... to whether the provocative act or situation is such as would lead an ordinary man to lose self-control so as to do an act of the kind of the fatal act done by the accused". Having known of the relationship for many months, an ordinary person in the position of the appellant would not have regarded observation of Mr Corbett's car at the Parramatta flat and the lights being out by 9.30 pm as adding anything significant to his knowledge. The present is a far-cry from a case where an accused has suddenly encountered a spouse in compromising circumstances or has been taunted by a spouse's lover.
48The present evidence is far closer to that in Stingel where the court found that the trial judge had correctly declined to leave provocation to the jury. In that case a 19 year old man, who remained infatuated with a woman after termination of their relationship, discovered the woman and a man engaged in sexual activities in the man's parked car. After being told by the man to "piss off", the accused obtained a knife and stabbed the man to death.
49For these reasons, my view is that a jury, acting reasonably, could not have failed to have been satisfied beyond reasonable doubt that an ordinary person in the position of the appellant would not have been induced by Mr Corbett's conduct to kill him. A verdict to the contrary would have been unreasonable and quashed on appeal. As a result, the trial judge acted correctly in not leaving an issue of provocation to the jury.