Networked Knowledge Law Reports

Malcom Thomas Green v The Queen [1997] HCA 50

[This version of the judgment has been prepared by: Dr Robert N Moles and Bibi Sangha Underlining where it occurs is for editorial emphasis]

Australian legal cases homepage
A state of Injustice (2004) book online
Losing Their Grip - The Case of Henry Keogh (2006) book online
Forensic Investigations and Miscarriages of Justice (2010) book

7 November 1997 - High Court Of Australia

External link to full text of R v Green 1997 High Court

Brennan CJ, Toohey, McHugh, Gummow JJ [allowed the appeal] and Kirby J [would not have allowed it]

T A Game SC with T Molomby for Green
K Mason QC with A M Blackmore for DPP

Brennan CJ

The facts of this case, the relevant rulings at the trial and the reasons for judgment of the Court of Criminal Appeal are stated by McHugh J in terms which I gratefully adopt. McHugh’s account of the facts is as follows:

In the early morning of 20 May 1993 Malcolm Thomas Green ("G"), killed Mr Donald Gillies ("the deceased") at his home in Mudgee. In March 1994, a jury convicted G of murdering the deceased. It is necessary to set out in some detail the history of the relationship between G and the deceased and G's family background. At the time of his death, the deceased was 36 years of age. He was unmarried and lived with his mother although she had been away from the family home for some days prior to the killing. The deceased had helped G to obtain work, had lent him small sums of money, and had been his confidant. G was 22 years of age. He had known the deceased about 6 years and described him as one of his "best friends". In evidence, G said that he trusted the deceased, looked up to him, and valued his advice.

On the night of the killing, the deceased had invited G to dinner. They dined and watched a number of television programs. According to G, each of them consumed a significant amount of alcohol during the evening. The deceased asked G if he would like to stay overnight. After initially refusing the offer, G decided to stay. The deceased said that he would sleep in his mother's bedroom and that G could sleep in the deceased's bedroom. In a record of interview made a few hours after the killing, G said:
"and he showed me to the bed I was sleeping in. After a while when I was fully unclothed Don entered the room I was in, slid in beside me in the bed and started talking to me how a great person I was. Then he started touching me. I pushed him away. He asked what was wrong. I said, 'What do you think is wrong? I'm not like this.' He started grabbing me with both hands around my lower back. I pushed him away. He started grabbing me harder I tried and forced him to the lower side of me. He still tried to grab me. I hit him again and again on top of the bed until he didn't look like Don to me. He still tried to grope and talk to me that's when I hit him again and saw the scissors on the floor on the right hand side of the bed. When I saw the scissors he touched me around the waist shoulders area and said, 'Why'? I said to him, 'Why, I didn't ask for this.' I grabbed the scissors and hit him again. He rolled off the bed as I struck him with the scissors. By the time I stopped I realised what had happened. I just stood at the foot of the bed with Don on the floor laying face down in blood. I thought to myself how other people can do something like this and enjoy what they do. I didn't get off this and like it not just because he was someone I knew even though he resembled someone I knew. I didn't know what to do, didn't know where to go."

G had not witnessed any sexual assaults by his father on his sisters. However, as a result of conversations with his sisters and mother, he believed that his father had sexual assaulted them. He also gave evidence that he had witnessed quite violent, non-sexual assaults by his father upon his mother and sisters. His attitude towards his father, whom he had seen only once in many years, was that he "wanted to kill him, hated him".

Mr Molomby, counsel for G, sought to elicit evidence from one of G's sisters that her father had sexually interfered with her and that she had discussed the matter with G. Mr Molomby also told the judge that he wished to call another witness to give evidence of a family history of sexual abuse which had created a particular sensitivity in G to matters of sexual assault.

Brennan CJ continued his judgment:

Green’s case at the trial was that he was so provoked by the conduct of the deceased that he lost control of himself and killed him. The "defence" of provocation called for consideration of s 23 of the Crimes Act 1900 (NSW):
" (1) Where, on the trial of a person for murder, it appears that the act or omission causing death was an act done or omitted under provocation and, but for this subsection and the provocation, the jury would have found G guilty of murder, the jury shall acquit G of murder and find G guilty of manslaughter.
(2) For the purposes of subsection (1), an act or omission causing death is an act done or omitted under provocation where:
(a) the act or omission is the result of a loss of self-control on the part of G that was induced by any conduct of the deceased (including grossly insulting words or gestures) towards or affecting G; and
(b) that conduct of the deceased was such as could have induced an ordinary person in the position of G to have so far lost self-control as to have formed an intent to kill, or to inflict grievous bodily harm upon, the deceased, whether that conduct of the deceased occurred immediately before the act or omission causing death or at any previous time. ..."

The meaning of s23

Paragraph (a) of sub-s (2) requires a causal relationship between the act or omission of an accused which causes the death of the deceased and the conduct of the deceased towards or affecting G. The nexus between these two is the loss of self-control on the part of G. That loss must be "induced by" the deceased's conduct and it must cause the fatal act or omission. Paragraph (a) contains no test of proportionality between the conduct of the deceased and the act or omission which causes the death. All that is needed to satisfy (a) is evidence that the conduct of the deceased, G's loss of self-control and the act or omission causing death are causally linked.

Paragraph (b), on the other hand, prescribes the nature of the conduct that amounts to provocation for the purposes of the section. It postulates the response of "an ordinary person" to the deceased's conduct as a standard to be employed in applying s 23. The standard of the "ordinary person" prescribed by par (b) is an objective standard by which to determine whether the conduct relied on by G could have induced the formation of an intent to kill or to inflict grievous bodily harm. For the purposes of applying this standard, the notional ordinary person is placed "in the position of G". In other words, the significance of the deceased's conduct is assessed by reference to its significance to G, and the ordinary person is notionally exposed to conduct having that significance in order to determine whether the ordinary person could have been induced thereby to form either of the prescribed intents. Paragraph (b) requires the jury to take full account of the sting of the provocation actually experienced by G, but eliminates from the jury's consideration any extra-ordinary response by G to the provocation actually experienced. Thus extra-ordinary aggressiveness or extra-ordinary want of self-control on the part of an accused confer no protection against conviction for murder.

The objective test prescribed by par (b) turns not on what the ordinary person would have done in response to the provocation experienced, but on what the ordinary person could have been induced to intend. Dependent on the circumstances of the trial, the jury may need a direction to draw their attention to the difference between "would" and "could" and will ordinarily need a direction to distinguish between what the ordinary person could have been induced to intend and what the ordinary person could have been induced to do. In the present case, for example, the jury might have been more ready to allow the possibility that an ordinary person could have been induced to intend to kill or to inflict grievous bodily harm on the deceased than to allow the possibility that an ordinary person could have been induced to batter and stab the deceased to the extent that Green battered and stabbed him.

Construing s 23 in the manner stated above, it operates in substantially the same way as the provisions of the Tasmanian Code were held to operate in Stingel v The Queen1990 and the way in which the common law was held to operate in Masciantonio v The Queen 1995. It has been said, albeit not in a considered judgment, that it is correct to interpret the phrase "in the position of G" consistently with the decision of this Court in Stingel:
"The content and extent of the provocative conduct must be assessed from the viewpoint of the particular accused. Were it otherwise, it would be quite impossible to identify the gravity of the particular provocation. In that regard, none of the attributes or characteristics of a particular accused will be necessarily irrelevant to an assessment of the content and extent of the provocation involved in the relevant conduct. For example, any one or more of G's age, sex, race, physical features, personal attributes, personal relationships and past history may be relevant to an objective assessment of the gravity of a particular wrongful act or insult. ... As Wilson J commented in Hill 1986, the 'objective standard and its underlying principles of equality and individual responsibility are not ... undermined when such factors are taken into account only for the purpose of putting the provocative insult into context'."

The Court explained that the ordinary person test is:
"to provide an objective and uniform standard of the minimum powers of self-control which must be observed before one enters the area in which provocation can reduce what would otherwise be murder to manslaughter. 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 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 ..., 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. It will, however, be affected by contemporary conditions and attitudes: see per Gibbs J, Moffa 1977. Thus in Parker 1963, Windeyer J pointed out that many reported rulings in provocation cases 'show how different in weight and character are the things that matter in one age from those which matter in another'."

The majority in Masciantonio said:
"the question is whether the provocation, measured in gravity by reference to the personal situation of G, could have caused an ordinary person to form an intention to kill or do grievous bodily harm and to act upon that intention, as G did, so as to give effect to it."

The application of s 23 in the present case

The trust which G had placed in the deceased before the deceased got into G’s bed, the consumption of a considerable quantity of alcohol on the night of the killing, G's response to the deceased's first homosexual advance that "I'm not like this", the deceased's persistence in his homosexual advances, his grabbing and pulling of G, his touching G's groin and G's knowledge or belief of and sensitivity to his father's sexual abuse of G's sisters were all matters that were to be taken into account in determining the availability of the defence of provocation. G's recollection of and sensitivity to his father's sexual abuse of G's sisters ("the sexual abuse factor" as I shall call it) was relevant to the question whether the deceased's conduct had induced a loss of self-control on the part of G. The sexual abuse factor was relevant to those questions because it tended to make it more likely that G was more severely provoked by the deceased's unwanted homosexual advances than he would otherwise have been and thus more likely that he had been induced thereby to lose self-control and inflict the fatal blows and more likely that G was so incensed by the deceased's conduct that, had an ordinary person been provoked to the same extent, that person could have formed an intention to kill the deceased or to inflict grievous bodily harm upon him.

The judge ruled against the reception of evidence of the sexual abuse factor when first it was sought to be tendered on the issue of provocation. That ruling was given on the second day of the trial. The trial judge understood that earlier decisions of the Court of Criminal Appeal required him to reject both evidence of sexual abuse of G's sisters and evidence of G's knowledge of that sexual abuse because subjective factors "particular to G" were not relevant to his capacity to control his response to the deceased's conduct, even though those factors rendered that conduct exceptionally provocative. In this ruling, his Honour did not distinguish between the significance of the deceased's conduct to G and the capacity of conduct having that significance to induce an ordinary person to form an intention to kill or an intention to inflict grievous bodily harm. In consequence of this ruling, not only was evidence of the sexual abuse factor ruled to be irrelevant to the issue of provocation but counsel for G was denied the opportunity to address the jury on the heightened significance of the deceased's conduct towards G.

Subsequently, evidence relating to G's knowledge of the sexual abuse of his sisters was admitted in order to explain or neutralise the effect of a comment allegedly made by G to a Mr and Mrs Sirola on the night before the killing of the deceased. The comment was, in effect, that G wanted to have somebody killed. Proof of the comment was tendered by the prosecution to show premeditation of the murder of the deceased. Evidence of the sexual abuse factor was then admitted in order to suggest that G's hatred was directed towards his father, not to the deceased. His Honour's direction to the jury included the following:

" The evidence about the father's activities in relation to the sisters, and alleged sexual misconduct in relation to them, and also the evidence in relation to the father's assaults upon the wife has been brought forward and is relevant to whether, in fact, there was this so called claim of pre-meditation." When dealing with arguments that had been put to the jury on the issue of provocation, his Honour said:
"Whether or not G was or was not virtually 'a latent volcano' or an explosion about to happen is really not to the point. Whether or not he was sensitive or not, whether or not he was a 'volcano capable of being exploded' or whether he thought about his sisters or about his father's activities with them is not really to the point”.

“As I have said to you, ladies and gentlemen of the jury, the evidence of G in relation to his feelings about his father, his feelings in relation to offences of a sexual nature allegedly committed by the father upon the sisters is relevant (as I have earlier indicated) was admitted, to neutralise the pre-meditation claim that has been advanced through the Sirolas, to neutralise what was said by them and in relation to what they had said and also in terms of explaining why G would have had capacity, a desire or even a wish, to see his father killed."

In the Court of Criminal Appeal, the Crown rightly conceded that his Honour's rejection of evidence relating to the sexual abuse factor on the question of loss of self-control was erroneous. However, the Crown submitted that, on the facts, G's reaction to the conduct of the deceased fell below the standards of self-control attributable to the hypothetical ordinary man in the position of G. That submission was accepted by the Court of Criminal Appeal. That being so, the second requirement of par (b) of s 23(2) was not satisfied and there was no basis on which provocation could have warranted a verdict of manslaughter rather than murder. The proviso was applied to dismiss the appeal.

On appeal to this Court, the question whether this Court should interfere with the view of a Court of Criminal Appeal was submitted by the Solicitor-General for New South Wales to be subject to the principle of review of discretionary or evaluative judgments contained in House v The King 1936. That is an entirely erroneous approach. Once there is an unqualified grant of special leave to appeal, the function of this Court is to dismiss the appeal or to make the order which the Court of Criminal Appeal ought to have made. For that purpose, this Court must step into the shoes of the Court of Criminal Appeal. Thus, in Parker v The Queen Windeyer J said 1963:
"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."

Parker was a case in which provocation was wrongly withdrawn from the jury's consideration. However the observation of Dixon CJ as to an appeal court's assessment of the sufficiency of the evidence to raise provocation indicates the approach to be taken when an appellate court must determine whether the jury could have resolved an element of provocation in favour of an accused. Dixon CJ said:
"But on the question of provocation there has been no decision of the jury and the question is whether they ought to have been allowed to decide it. Perhaps it may be said that the question is to be considered just as if the jury had decided it in favour of the prisoner and, by some freak of procedure, the question arose whether that decision could be sustained. The point is that the issue before the Court of Criminal Appeal was whether by any possibility the jury might not unreasonably discover in the material before them enough to enable them to find a case of provocation. The selection and evaluation of the facts and factors upon which that conclusion would be based would be for the jury and it would not matter what qualifying or opposing considerations the Court might see: they would not matter because the question was, ex hypothesi, one for the jury and not for the Court."

If a reasonable jury, properly directed, could have had a reasonable doubt as to whether G was provoked to such a degree that an ordinary person experiencing provocation to that degree could have formed an intention to kill or to inflict grievous bodily harm to the deceased, this appeal must be allowed. In determining that question, regard must be had to all the relevant evidence including evidence of the sexual abuse factor. If the view formed by the Court of Criminal Appeal was correct, no reasonable jury properly directed could have entertained a reasonable doubt on that question and the trial judge was in error in allowing the issue of provocation to go to the jury.

In my opinion, the trial judge was right to allow the issue of provocation to go to the jury. On G's evidence and on the statements he made to the police, he was grievously incensed and insulted by the conduct of the deceased. The Court of Criminal Appeal appears to have placed some emphasis on the absence of evidence on the part of the deceased - "the touching was amorous, not forceful", Priestley JA said in speaking for the majority. That led the majority to the view that -
"the basis for the jury's decision was that they were satisfied beyond reasonable doubt that the sexual advances of Mr Gillies up to the point where G lost his self-control were not such as could have induced an ordinary person in the position of G to have so far lost self-control as to have formed an intent to kill or inflict grievous bodily harm upon Mr Gillies."

And that view, imputed to a jury that had been directed to ignore the sexual abuse factor in considering the "ordinary person in the position of G" test, was confirmed by the majority having taken that factor into consideration. Priestley JA said:
"It is easy to see that many an ordinary person in the position in which G was when Mr Gillies was making his amorous physical advances would have reacted indignantly, with a physical throwing off of the deceased, and perhaps with blows. I do not think however that the ordinary person could have been induced by the deceased's conduct so far to lose self-control as to have formed an intent to kill or inflict grievous bodily harm upon Mr Gillies."

With respect, the conclusion arrived at by the majority was a finding of fact that might not have been arrived at by a jury. A jury would be entitled to evaluate the circumstances in a different way. The real sting of the provocation could have been found not in the force used by the deceased but in his attempt to violate the sexual integrity of a man who had trusted him as a friend and father figure, in the deceased's persistent homosexual advances after G had said "I'm not like this" and in the evoking of G's recollection of the abuse of trust on the part of his father. These were matters for the jury to evaluate in determining the degree of provocation experienced by G. Smart J in dissent described the deceased's actions, as narrated by G, as revolting. He added:
"All this was bad enough but there were further factors, namely, the deceased's betrayal of the relationship of trust, dependency, friendship and his abuse of his hospitality. He was trying to coerce G into providing him (the deceased) with sexual gratification. The past history of G, including the family history of the father's sexual assaults, must not be overlooked. The provocation was of a very grave kind. It must have been a terrifying experience for G when the deceased persisted. The grabbing and the persistence are critical”.

“Some ordinary men would feel great revulsion at the homosexual advances being persisted with in the circumstances and could be induced to so far lose their self control as to form the intention to and inflict grievous bodily harm. They would regard it as a serious and gross violation of their body and their person. I am not saying that most men would so react or that such a reaction would be reasonable. However, some ordinary men could become enraged and feel that a strong physical re-action was called for. The deceased's actions had to be stopped."

Smart J speaks of the reaction of "some ordinary men" to the deceased's conduct. With respect, the relevant question was the reaction of G. The "ordinary person" in par (b) of s 23(2), like the ordinary person considered in Stingel, does not refer to a person having precisely G's powers of self-control but refers "to a person with powers of self-control within the range or limits of what is 'ordinary' for a person of the relevant age".

A reasonable jury might have come to the conclusion that an ordinary person, who was provoked to the degree that G was provoked, could have formed an intent to kill or to inflict grievous bodily harm upon the deceased. It was essentially a jury question, a question the answer to which depended on the jury's evaluation of the degree of outrage which G might have experienced. It was not for the Court to determine questions of that kind, especially when reaction to sexual advances are critical to the evaluation. A juryman or woman would not be unreasonable because he or she might accept that G found the deceased's conduct "revolting" rather than "amorous". The case is not like Stingel. In that case, Stingel sought out and allegedly came upon a scene of consensual sexual activity between the deceased and Stingel's erstwhile girlfriend - a scene which inflamed his jealousy. Here, the deceased was the sexual aggressor of G.

As the trial judge was in error in ruling that the sexual abuse factor was irrelevant to the issue of provocation, and as it was open to the jury not to be satisfied beyond reasonable doubt that s 23(1) did not apply, G lost a chance of acquittal of murder. Accordingly, the proviso did not apply: Mraz v The Queen1955. I do not regard the case as falling within Wilde v The Queen 1988. That case applies only where there is "such a departure from the essential requirements of the law that it goes to the root of the proceedings" so that "G has not had a proper trial". It applies only to fundamental irregularities which demonstrate that no proper trial has taken place. It does not apply when there is no more than an erroneous ruling on the admissibility of evidence or a misdirection on a particular point of fact or law arising in the trial. In the latter category of cases the proviso falls for consideration.

The appeal must be allowed, the order of the Court of Criminal Appeal set aside and in lieu thereof the appeal to that Court should be allowed, the conviction quashed and a new trial ordered.

Kirby J dissenting judgment

Once again the Court has before it an appeal concerning the law of provocation and its effect on a person tried for, and convicted of, murder. In this case, there are two variations from the themes considered in earlier cases, some of them quite recent. The first is factual. The facts alleged to constitute the provocation here were of a sexual advance, homosexual in character, which resulted in the infliction of terrible injuries on the victim, leading to his death. Recent writing, both academic and official suggests, with reference to numerous cases, that provocation is now quite commonly raised in such circumstances, both in Australia and elsewhere.

The second variation is that in this case, unlike some others which have come to this Court, the trial judge left the issue of provocation to the jury. He did so in circumstances in which it is accepted that errors of a technical kind occurred in his rulings and directions. The Court of Criminal Appeal of New South Wales nonetheless applied the proviso. The question thus presented is whether G lost a real chance of being acquitted of murder (although found guilty of manslaughter) on the ground of provocation or whether the trial was so irregular that it should be classified as no trial at all. Mraz v The Queen (1955); Parker v The Queen (1963); Wilde v The Queen (1988); Glennon v The Queen (1994). If the trial did sufficiently conform to the law and if no reasonable jury, properly instructed, could have found provocation in the facts adduced, no injustice will have occurred requiring disturbance of the jury's verdict that G was guilty of murder.

As the evidence at the trial showed, Mr Malcolm Green ("G") grew up in a family subjected by his father to violence and, in the case of his sisters, sexual abuse. The father left the home when G was 9 or 10 years of age. G only saw his father once again, and then only briefly, when he was 15 years old. He gave evidence that, as a result of his father's violent and wrongful conduct towards his mother and sisters, he "wanted to kill him, hated him". G had no steady job. For a time, he had a de facto relationship with a girlfriend. But she left him about a week before the events giving rise to the charge. The day before those events, G went to the home of Mr and Mrs Sirola. There was a dispute as to exactly what was said during this visit. But both Mr and Mrs Sirola recalled that G said something to the effect that he intended to "knock somebody off" or "put someone down". The Sirolas were reminded of these statements some time later when watching a television programme. They tried to make sense of their recollections. They reported them to the police. They gave evidence about them at the trial.

Early in the morning of 20 May 1993 G killed Don Gillies at the latter's home in Mudgee, New South Wales. The deceased had been a friend of G for between 5 and 6 years. He was described by one of G's sisters as someone who was "always there" to help G. No reason was established by the evidence, or suggested by G, for any dislike on his part towards the deceased. On the contrary, they went swimming, diving, drinking and jogging together. They worked together at a local church where the deceased played the organ. On a number of occasions, the deceased had organised work for G. G did not allege that, prior to the killing, the deceased had demonstrated any sexual interest in him.

G had never previously stayed overnight at the deceased's premises. However, on the evening of 19 May 1993, at the invitation of the deceased, G went to the latter's home. They shared a meal, drank wine and later whisky together whilst watching television. According to G, later in the evening, when both of them were much affected by the alcohol they had consumed, the deceased invited him to sleep there overnight. This would save G walking to his sister's home where he was then residing. It was proposed that G should sleep in the deceased's bed. The deceased would sleep in another bedroom, sometimes occupied by his mother, but unoccupied on that evening.

G lay on the deceased's bed. He removed his upper garment but left his underpants and tracksuit pants on. G alleges that, before he had fallen asleep, the deceased entered the bedroom, apparently naked. He lay beside G and started grabbing with both hands towards G's backside and penis. As described in the evidence, the deceased initially did so gently and not aggressively or brutally. G verbally protested to the deceased against these advances. Then, as the deceased started grabbing G more insistently, the latter began hitting the deceased. He hit him repeatedly. The deceased tried to hold G, as the latter interpreted it, "trying to soothe" him. G saw and grabbed a pair of scissors on the floor on the right side of the bed. He stabbed the deceased repeatedly with the scissors. The deceased rolled off the bed. He was left on the floor, face-downward, in a pool of his own blood.

G made a number of perfunctory attempts to remove evidence of his fingerprints from the scene. He then telephoned his brother-in-law requesting him to come and collect him, announcing the gist of what he had done. The brother-in-law arrived at about 1.30am. Eventually, G instructed that he be taken to the police station. He there began a long process of interrogation by police about which no complaint is made. He volunteered his version of events involving the unwanted sexual advance by the deceased. In the course of the record of interview, he adverted to the alleged sexual assaults by his father upon his sisters which he had not himself seen but which he believed to have occurred. He elaborated the significance of this statement in evidence given before the jury. At the time of his death, the deceased was aged 36 years. He was 1.82 metres in height and weighed about 80 kilograms. G was 22 years of age. He was 1.74 metres in height with a body weight of about 65 kilograms.

According to G's evidence, he punched the deceased about 35 times and then stabbed him as he rolled off the bed. He admitted to stabbing the deceased up to half a dozen times. However, the post mortem examination showed the ferocity and brutality of G's attack upon the deceased. Ten stab wounds were found. They were described as being in the shape of a butterfly. Dr Du Flou, concluded, when taken with evidence of blood spray patterns and other physical indications at the scene of the crime:
"[W]hat I believe is that the head was brought into contact forcibly with that part of the wall and that the head which at that stage had blood on it on coming into contact with the wall caused blood to spray outwards ... I would strongly favour that in fact the face was brought into contact with the wall." The Dr agreed that the injuries to the back of the deceased's head were consistent with the head being banged violently against a wall. Those to the front of the head fitted readily with punching. Immediately after his arrival at the police station, G admitted killing the deceased. He never resiled from that admission. He told the police: "Yeah, I killed him, but he did worse to me." When asked why he had done it, G said: "Because he tried to root me."

The common law originally required that there be reasonable proportionality between the act of provocation and the mode of retaliation. That was one of several controls which it devised to ensure that it was not every loss of self-control which would warrant application of the law of provocation to reduce a homicide from murder to manslaughter. Later, this Court made it plain Johnson v The Queen (1976) that, in this country, the requirement of reasonable proportionality was not a separate element of provocation but a matter relevant to be considered in deciding whether the alleged conduct amounted, in law, to provocation. The common law requirement has now been abolished by statute in New South Wales. In that State, the question is not now whether the mode of retaliation was proportionate to the act of provocation. It is not even whether the act of provocation enlivened the intent to inflict the particular injuries actually occasioned to the deceased. As will be shown, by reference to the statute, it is enough, relevantly, that the conduct of the deceased was such as to induce an ordinary person in the position of G to have lost self-control so far as to form "an intent to kill, or to inflict grievous bodily harm upon, the deceased".

The Crown case relied upon the admissions made by G in his interview with the police soon after the deceased was killed. It also relied on the evidence of Dr Du Flou, and the testimony of Mr and Mrs Sirola. The Crown did not accept the assertion of a sexual advance by the deceased. Its primary case was that this was a premeditated killing of the deceased in his own bedroom whilst he was sleeping or severely intoxicated. In support of that case, the Crown relied upon the objective facts surrounding the place of the killing, the relationship of the parties, the admissions of G and the evidence of the Sirolas that the deceased had foreshadowed, so soon before the critical events, a homicidal intention, to which he had swiftly given effect. The Crown's secondary case was that, even if the deceased had touched G in the way described, such conduct could not have amounted, in law, to provocation so as to warrant a verdict acquitting G of murder and finding him guilty of manslaughter.

At the trial, G's case involved admission of the killing but with the contention that he was provoked so as to require a finding of guilty only of manslaughter. G also raised self-defence. The judge refused to leave self-defence to the jury. G, who gave evidence, adhered to what he had said in his interview with the police. He said that he had no recollection of indicating an intention to kill someone or to arrange for someone to be killed when he was with the Sirolas. He asserted that it was not the deceased but his father whom he had regarded with hatred.

In his case, G called his sisters. His counsel sought to question the first of them about the father's sexual interference with her. The Judge ruled that evidence as to the facts of the father's interference with the sister was inadmissible. Subsequently, however, evidence on this issue was admitted as relevant to G's feelings and to meet the suggestion of premeditation inherent in the evidence of the Sirolas. The Judge told the jury that, whether or not G was sensitive to sexual abuse, the actual activities of the father with his sisters were not relevant to his reliance upon provocation.

On the second day of the trial, the Judge also ruled that par (b) of s 23(2) required that the conduct of the deceased had to be shown to have been such as would have induced an ordinary person, who had lost self-control, to have formed an intent to respond to the provocation in the way that had actually occurred. Instead of its being enough to show that the provocation could have induced an ordinary person in the position of G to have formed "an intent to kill, or to inflict grievous bodily harm" the ruling, as expressed, suggested that any provocation had to be sufficient to cause such a loss of self-control as to give rise to the intent to kill or to inflict the actual injuries occasioned to the deceased. Subsequently, the Judge corrected this ruling. Towards the end of his summing up he directed the jury, in terms, in accordance with s 23(2)(b) of the Act. However, G complained that the original error deprived him of the opportunity of having the trial conducted upon the correct basis.

The trial lasted 10 days. After the jury had retired, they returned with a request that the Judge should re-explain the law of provocation, murder and manslaughter. Counsel for G asked the judge to clarify what "in the position of G" meant in s 23(2)(b) of the Act. The judge directed the jury that this meant "an ordinary person in the context of [G's] temperament, age and maturity". He declined to give any further direction. After further deliberation of 5 hours, the jury returned with a verdict of guilty of murder.

It is idle to speculate whether the jury's verdict was based upon their acceptance of the primary case of the Crown that G's killing of the deceased was an unprovoked and premeditated murder - the very event foreshadowed by G in the conversation with the Sirolas little more than a day before the killing. In cases of this kind, the deceased can give no evidence of his or her version of events. Juries appreciate this. They may sometimes reject the assertions of the person charged as amounting to nothing more than self-serving exculpation when facing a serious predicament and the prospect of prolonged punishment. Alternatively, the jury might have accepted that the deceased did act in a way such as described by G but rejected the contention that this constituted provocation.

G was convicted of murder and sentenced him to penal servitude of 15 years. This sentence was made up of a minimum term of 10 years and an additional term of 5 years. G appealed against his conviction to the Court of Criminal Appeal. Alternatively, he sought leave to appeal against the sentence.

The Court of Criminal Appeal, by majority, dismissed G's appeal. It declined to interfere in the sentence. The Crown did not dispute the validity of the criticisms contained in certain grounds of the appeal. It contested that other grounds had been made out. It accepted that it had failed at the trial to establish that G had, within s 23(2)(a) of the Act, not lost his self-control in fact.

Priestley JA agreed that the evidence concerning the behaviour of G's father towards his sisters (so far as it was known to G) was relevant to the questions arising under s 23(2)(a) of the Act. That is, it was relevant to whether G had in fact lost self-control as a result of an act on the part of the deceased. Priestley JA also concluded that the early ruling of the judge concerning the suggested focus of s 23(2)(b) upon the intention of G was inaccurate or insufficient in the instant case where there was a relevant distinction between the manifestation of the intention to kill or inflict grievous bodily harm upon the deceased and the multifarious ways in which that intention was carried into effect. Although the Judge eventually returned to the language of the section and instructed the jury on it, the mistakes were not expressly repaired. However, Priestley JA regarded this error as being a "technical" one:

Priestley JA rejected the complaint about the failure of the primary judge to respond to the request of G's counsel that he should elaborate what the phrase "in the position of G" meant. He considered that the elaboration given was consistent with what this Court had held in Stingel. Similarly, he rejected the criticism of the ruling on the admissibility of the evidence concerning the facts of the father's sexual activities with G's sisters. He upheld the submission that it was what was operating on G's mind that was important and relevant to the question under s 23(2)(a).

These conclusions left Priestley JA to weigh the significance of the errors found to have taken place. That evaluation arose upon G's primary ground asserting that the verdict of murder was unsafe and unsatisfactory, that the trial had miscarried and that a relevant injustice had occurred which had deprived him of the chance of acquittal of murder. The suggestion that there had not been a trial at all, as required by law, was not explored. It does not appear to have been argued in the Court of Criminal Appeal.

Priestley JA concluded that no substantial miscarriage of justice had occurred. He rejected the assertion that G had lost any chance of a different outcome on the s 23(2)(b) question.

Priestley JA concluded that the misdirection on the "theoretical difference between the two positions" involved in the focus of G's intention to kill or to inflict grievous bodily harm had not occasioned a miscarriage of justice. These opinions led Priestley JA to conclude that the appeal should be dismissed upon the basis that no substantial miscarriage of justice had actually occurred. Ireland J concurred in this conclusion. This produced the order of the Court of Criminal Appeal.

Smart J, in dissent, agreed in the identification of the errors conceded by the Crown or found by the majority. However, in his opinion, the case was not one for the application of the proviso. On the contrary, he was even more forceful in his expression of the alleged provocation than counsel for G was willing to be before this Court.

Applicable statutory provisions

The law of provocation grew out of the early common law which treated all homicides as felonious. It was only in the middle of the 16th century that, by statute, a distinction between murder and manslaughter was finally settled. Malice aforethought became an essential ingredient for murder. This element gave rise to an exception where a killing followed a sudden falling out, whether by the use of blows or of swords. Malice was deemed to be present "if one kills another without any provocation on the part of him that is slain". From this, it was a short step to perceive provocation as negativing the malice aforethought, express or implied, deemed necessary for murder. One of the chief causes for the early elaboration of the law of provocation, no longer relevant, was the liability of an accused, found guilty of murder, to suffer the penalty of death. By 1883, Sir James Fitzjames Stephen was recording the opinion that: "The whole law of provocation rests ... upon an avowed fiction - the fiction of implied malice."

In the same year, the Criminal Law Amendment Act 1883 (NSW) enacted, in statutory form, a modified version of the developments of the common law of provocation to that time. That section "with minor changes of punctuation and arrangement" became s 23 of the Crimes Act 1900 (NSW). That section was, in turn, repealed in 1982 and replaced by the section in the form applicable to this case. It is set out in the reasons of other members of this Court and I will not repeat it.

In this Court, the Crown submitted that the application of the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW) was in the nature of a discretionary decision by the Court of Criminal Appeal. It urged that this Court should approach disturbance of such a discretionary determination applying the well-established principles which restrain appellate interference in evaluative decisions. The mere fact that the High Court might not, if sitting as a Court of Criminal Appeal, itself have applied the proviso was not sufficient, so it was put, to warrant interference.

The High Court is not a Court of Criminal Appeal. However, in addition to the exposition, application and development of the law, it has a function as the ultimate curial guardian against legal error and injustice. If it reaches the conclusion that a trial has not been held according to law it may uphold the appeal and direct that such a trial be had. If it concludes that an accused has lost a real chance of being acquitted, it may find a miscarriage of justice and grant appropriate relief. Only if, at a trial which sufficiently complies with the law, any miscarriage of justice is insubstantial and such as convinces the Court that it should exercise its discretion to withhold relief, will an established error of law or procedure in the course of the trial justify the application of the proviso.

The approach adopted by this Court on this point is one of vigilance. It is a reflection of the high importance attached to the accurate and just conduct of criminal trials where liberty, fortune and reputation are at stake. I support that approach. But it is also necessary to be obedient to the proviso enacted by Parliament. That proviso is designed to guard against insubstantial errors attracting a completely unmerited or disproportionate consequence. It will be rare today that a criminal trial could be conducted without some insubstantial error or mistake occurring. By the proviso, what is called forth is an assessment or judgment heavily weighed in favour of the right of an accused person to have a trial free from errors which might have any substantial significance. The Court of Criminal Appeal majority felt that G had had such a trial. Once special leave is granted, this Court must reach its own conclusion. However, unless error is shown, it will not disregard or ignore the conclusion reached by a court of criminal appeal. In the nature of things the judges of such courts have much experience in evaluating the evidence of criminal trials and suggestions of miscarriage of justice occurring within them.

Issues in the appeal

G relied, in this Court, upon the following grounds of appeal, namely that the Court of Criminal Appeal had erred:
(1) In applying the proviso.
(2) In proceeding on the basis that the intention of an ordinary person in the position of G under s 23(2)(b) of the Act was an intention carried out rather than merely an intention formed.
(3) In holding that the evidence of the truth of what G's father had done to his sisters and mother was not admissible on the question of his belief about what his father had done.
(4) In holding that the trial judge need not have directed the jury as to what is meant by "in the position of G."

Upon the return of the appeal, G abandoned ground (3). In my view this was correctly done. To the extent that there was a difference between the majority and Smart J in the Court of Criminal Appeal relevant to this point, I consider that the majority were clearly correct. So far as ground (2) is concerned, I am of the opinion that it derives from a misreading of the reasons of Priestley JA. His Honour clearly stated, and applied, the distinction between an intention to kill or to inflict grievous bodily harm upon the deceased and an intention to kill the deceased in the particular manner adopted. He accepted that what he called a "technical" mistake had occurred in this regard, in the primary judge's instruction to the jury. He devoted his discussion of the point to a consideration of whether the error, which had persisted through the trial to the closing summing up, was such as to have "led to any substantial miscarriage of justice". He concluded that it was not. He did so for reasons which I have quoted. They are wholly convincing.

In the conduct of the trial, it is unthinkable that G would have enjoyed any advantage in laying any more emphasis than was absolutely necessary upon the distinction between the intention to inflict the terrible injuries which in fact caused the death of the deceased and an intention to do no more than to kill or inflict grievous bodily harm upon the deceased. There is no substance in the point which, in any case, was arguably corrected by the primary judge at the close of his summing up.

These conclusions leave two points of substance in grounds (1) and (4). Ground (1), in turn, raises the important question concerning the meaning and operation of s 23(2)(b) of the Act and, in particular, what is meant by the phrase "ordinary person in the position of G". I therefore turn to the remaining grounds. However, first it is useful to place the consideration of this case in the context both of the law of provocation, as expounded by this Court, and of the particular case of provocation involving an alleged sexual advance of a homosexual character.

Legal context: insistence upon the "ordinary person" test

Throughout the long line of cases in this Court in which the law of provocation has been examined, there has been a steady insistence upon the application of an objective standard to the self-control which may be expected of G, provoked as he (and all of them have been male) was. This principle was taken from the common law and from the development of the availability of provocation in the English courts. The principle has been criticised as based upon the socially unacceptable assumption that provocation to uncontrolled anger and rage should sometimes be exculpatory. However, in the light of legal history and the statutory provisions applicable to this case, which accept that assumption, this debate can safely be ignored.

By insisting upon reference to an objective standard of the ordinary person, the courts have also applied a principle defensive of equality before the law. Without such a criterion, measured by reference to the ordinary person's response, provocation would be available, and murder might be reduced to manslaughter, simply because G failed to exhibit the measure of self-control which might reasonably be expected of an ordinary person in his or her circumstances. By the application of the law of provocation, this would result in jury verdicts and outcomes which would seriously offend the community's sense of justice by apparently indulging, or condoning, unrestrained "human ferocity". It would sanction excessive conduct which allowed head-strong, violent people to take the law into their own hands in a way that no civilized society could permit. In effect, it would allow each individual to set the standards of his or her self-control that could be expected in the face of any provocation.

The law of provocation in Australia is clearly established as requiring an objective criterion for the measurement of the measure of self-control that the law presumes. This is so by principle having its roots in legal history. History is reinforced by a reflection on the rationale of this provision of the law. In the face of some academic criticism and two dissenting voices within this Court, the objective standard has been consistently applied. Despite the critics, that standard certainly has its supporters. The psychological difficulties inherent in dividing the attribution of subjective personal responses to some aspects of the consideration of provocation, but not to others, has been noted both in this Court and by other Australian courts. The desirability of simplifying this area of the law has been suggested, including by some who favour persistence with an objective standard because of the perceived absurdities and injustices that a purely subjective test would produce. Where there is a code or (as in this case) a general criminal statute which expressly refers to the "ordinary person", meaning must obviously be given to that expression. This Court, in the series of decisions which I have reviewed, has repeatedly called attention to the basic similarity of the principle applicable in the several Australian jurisdictions. Wherever possible, commonality of such bedrock legal doctrine should be upheld, whether the case is governed by the common law, by statute or by a code.

In the end, the answer to the arguments in the present appeal must be found not in such generalities but in the meaning of the Act and the application of the proviso to the conceded errors. Nevertheless, the language of the Act should itself be read against the background of the history and purposes of the law of provocation which we do well to remember and which it would be wrong to ignore.

Without objection, the Solicitor-General for New South Wales placed before this Court a Discussion Paper prepared in that State addressed to the so-called "homosexual advance defence". Attorney-General's Department (NSW), Review of the "Homosexual Advance Defence", Discussion Paper (1996) noted (1996) 20 Criminal Law Journal 305; see Mason and Tomsen, Homophobic Violence, (1997) 33 at 39. The authors of the Discussion Paper argue that a non-violent homosexual advance should not, in law, be found to constitute sufficient provocation to incite an ordinary person to lose self-control. Where it is possible, the Court should seek to avoid unnecessary divergences in the basic principles of the criminal law applicable throughout Australia. The objective standard of self-control continues in New South Wales. So far as the words "in the position of G" are concerned, they allow, by this Court's authority, consideration to be given to the age and maturity of G person. But it is still necessary to ask the question whether an ordinary person could have been induced by the conduct of the deceased to form the intent to kill him or to inflict grievous bodily harm upon him.

The killing of an individual is still of profound concern to the community in which it occurs. The law in Australia has not yet surrendered the standard of provocation to the wholly subjective responses of the most vulnerable to hurt, rage or affront. With all respect to those of a different opinion, I align myself with nearly all of the Justices of this Court who have considered provocation in the past. I would sustain the wisdom of the law's insistence that the relevant standard of self-control to be expected of a person subject to an alleged provocation is the objective standard of an ordinary person. In New South Wales, by statute, that is an "ordinary person in the position of G". Save in the respect explained in Stingel, the additional words cannot expel the "ordinary person" who survives into the New South Wales Act, as amended. Further support for this view may be found in the fact that, in several decisions of Justices of this Court, long before the amendments to the New South Wales Act, similar phrases appear in describing the hypothetical "ordinary person" or "reasonable man" against whose measure of self-control G's intentions must be judged.

G's attempt, on the ground of the amendment, to import into the meaning of s 23(2)(b) of the Act, as relevant to the measure of self-control to be expected of him, all of the subjective features of his past, was misconceived. It was rightly rejected.

Misdirections and application of the proviso

This conclusion leaves to be determined the proper response to the misdirections of the primary judge which occurred during the course of the trial. These were conceded for the Crown and the Court of Criminal Appeal applied the proviso to them. Should that approach be disturbed?

Three general principles should be kept in mind in answering this question. The first derives from the established authority of this Court explaining the circumstances in which the proviso may be applied. It may not be applied where the error in the conduct of the trial is so fundamental that there has been no proper trial at all. I would certainly not accept that the "technical" mistakes which occurred in the present trial attract that appellation. In this respect, but in this respect alone, I agree in the reasons of Brennan CJ and disagree in the conclusion reached by McHugh J. There is another exception where the appellate court concludes that G, by reason of the departure from the requirements of law, has lost "a chance which was fairly open to him of being acquitted" or "a real chance of acquittal". That is the criterion invoked by G here. Unless the appellate court can affirm the inevitability of the conviction, the loss of the chance of acquittal must constitute a substantial miscarriage of justice and attract relief.

Secondly, whether there is evidence to constitute each of the elements of provocation in a particular case is a question of law reserved to the court. This reflects the necessity of applying an overriding or controlling standard for the mitigation which the law, exceptionally, allows. For practical reasons, which are well understood, judges will usually err on the side of permitting the question of provocation to be decided by the jury. So the primary judge did here, although the Crown submitted to him, along the lines of Stingel, that provocation could not, in law, be established. The Crown's argument was two-fold. First, it contended that the "loss of self-control on the part of G" was not, even on G's own case, induced by any conduct of the deceased but rather by the memories of the alleged conduct of his father (s 23(2)(a)). Secondly, it submitted that the deceased's conduct was not such as could have induced an ordinary person in the position of G to lose self-control so as to form the necessary intent to kill or to inflict grievous bodily harm (s 23(2)(b)).

Whilst the first of these arguments was correctly rejected, the second, in my view, was unanswerable. I do not believe that the fact that the judge left provocation to the jury, and made some rather minor "technical" mistakes in doing so, places the Crown at any disadvantage in later invoking the proviso. If the conviction of murder was inevitable (because the standard of self-control expected by the law of an ordinary person in the position of G had not been met) the consequence is still the same. No substantial miscarriage of justice has actually occurred. The proviso properly applies.

Thirdly, a review of the cases in this Court shows how minds can differ upon whether or not there was evidence, fit to go to a jury, on provocation. Thus, Dixon CJ and Windeyer J (in dissent) thought there was in Parker. The Privy Council agreed with them. Gibbs J thought that provocation should not have been left to the jury in Moffa; but the majority disagreed. In Masciantonio, McHugh J concluded that no jury could reasonably hold that provocation was established; but the majority held that the trial judge had wrongly withdrawn the issue of provocation from the jury's consideration. Such differences of opinion reflect nothing more than different conclusions about what a reasonable jury could decide as to whether G was acting under provocation "in the legal sense". Similar differences of opinion have now found their way into the several reasons offered in this case.

Conclusion: no miscarriage of justice

For my own part, I find entirely convincing the reasons given by Priestley JA, for the majority, in the Court of Criminal Appeal in explaining why, in this case, the conviction of murder was inevitable. G was faced with, what for him in his situation, may be accepted to have been a provocation. It may be allowed that it was provocation of a sexual kind affecting deep feelings and affronting him. It intruded into his privacy in a way most unwelcome to him. It may even have suggested to him assumptions about his own sexuality which he found confronting or offensive. But he was a 22 year-old adult male living in contemporary Australia. He was at all times wearing at least his tracksuit pants and underwear. At no time were these garments removed or displaced. He was awake. He was aware of what the deceased was doing. He was also aware that the deceased was highly intoxicated. He was younger. He was physically fit. He was very soon able to achieve physical superiority over the deceased. His great physical power is indicated by the course which his violence took. He had relatives close at hand. He knew that they would answer a telephone call and come at once to collect him. His sister's home was within short walking distance. He could not explain in his evidence why he did not simply say "I am going". He agreed that there was nothing at all to prevent him from leaving. Following the killing of the deceased he was readily able to summon a motor vehicle and coolly to direct that he be taken to the police station there to assert that the deceased had done "worse" to him than he had done to the deceased.

No jury acting reasonably could fail to be satisfied beyond reasonable doubt of the relevant matters. These were that the conduct of the deceased, however unwanted and offensive to G, was not of such a nature as to be sufficient, objectively, to deprive a hypothetical ordinary 22 year-old Australian male in the position of G of the power of self-control imputed to him by law to the extent of inducing him to form an intent to kill or to inflict grievous bodily harm on the deceased. Adapting what was said unanimously by this Court in Stingel, no jury, acting reasonably, could fail to be satisfied beyond reasonable doubt that G's reaction to the conduct of the deceased fell far below the minimum limits of the range of powers of self-control which must be attributed to the hypothetical ordinary 22 year-old Australian male in the position of G.

That standard of self-control remains, in this country, objective. Both Mr Stingel and G stated that they were provoked more than they could bear by a confronting sexual challenge. No lesser standard of self-control is demanded by our society in the case of G than of Mr Stingel, simply because sexual conduct of the deceased was homosexual in character. To condone a lesser standard is to accept an inequality before the law which this Court has previously, repeatedly and rightly rejected. The ultimate foundation of adherence to the objective test was explained in Stingel, in the terms of Wilson J's reasons, in the Supreme Court of Canada, in R v Hill 1986: " The objective standard ... may be said to exist in order to ensure that in the evaluation of the provocation defence there is no fluctuating standard of self-control against which accuseds are measured. The governing principles are those of equality and individual responsibility, so that all persons are held to the same standard notwithstanding their distinctive personality traits and varying capacities to achieve the standard."

If every woman who was the subject of a "gentle", "non-aggressive" although persistent sexual advance, in a comparable situation to that described in the evidence in this case could respond with brutal violence rising to an intention to kill or inflict grievous bodily harm on the male importuning her, and then claim provocation after a homicide, the law of provocation would be sorely tested and undesirably extended. A neutral and equal response to the meaning of the section requires the application of the same objective standard to the measure of self-control which the law assumes, and enforces, in an unwanted sexual approach by a man to a man. Such an approach may be "revolting" to some. Any unwanted sexual advance, heterosexual or homosexual, can be offensive. It may intrude on sexual integrity in an objectionable way. But this Court should not send the message that, in Australia today, such conduct is objectively capable of being found by a jury to be sufficient to provoke the intent to kill or inflict grievous bodily harm. Such a message unacceptably condones serious violence by people who take the law into their own hands. Even allowing for G's alleged memories of his father's sexual conduct many years earlier directed to his sisters, there is no way that this could have induced an ordinary person in his position to have so far lost self-control as to have formed the intention to kill or inflict grievous bodily harm on the deceased.

Assuming that it was appropriate to leave provocation to the jury in his case (a proposition which I doubt), the jury's verdict was not only proper. It was inevitable. There was therefore no substantial miscarriage of justice. The proviso was therefore correctly applied.

Top of Page