Parker v R [1963] HCA 14; (1963) 111 CLR 610 (24 May 1963)

HIGH COURT OF AUSTRALIA

Criminal Law

CATCHWORDS

CATCHWORDS

HEARING

Melbourne, 1963, May 24. 24:5:1963

APPLICATION for leave to appeal from the Supreme Court of New South Wales sitting as a Court of Criminal Appeal.

DECISION

The following written judgments were delivered:-

DIXON C.J. This is an application for special leave to appeal from an order Wales sitting as a Court of Criminal Appeal, whereby an appeal by the applicant from a conviction of murder was dismissed. The application for special leave to appeal was of course made long out of time, but the Solicitor-General who, as it seemed, was fully apprised of the circumstances, made no objection to the enlarging of the time and it was extended accordingly. The appellant no doubt has been serving his sentence in the meantime but inasmuch as the most serious question arising upon the application is whether the jury should have been directed that they might, if they thought fit, find that the prisoner acted upon provocation reducing the homicide to manslaughter, his imprisonment under sentence may not be as important as might otherwise appear. The sentence for murder, however, is penal servitude for life: (Crimes Act, 1900-1962 (N.S.W.), s. 18 and s. 453). (at p615)

2. The case is a curious one and at the trial, although on the proofs no doubt could exist that the appellant, by the injuries which he inflicted upon the deceased, had killed him, yet there was never any admission on his behalf that it was out of the question for the jury to find a simple verdict of not guilty and thereby acquit him completely. Part of the complaint of the applicant against his conviction is that a question of provocation was not submitted to the jury and therefore was not considered by the tribunal of fact. (at p615)

3. It goes without saying that a distinction must be maintained between the manner in which the Court examines the evidence for the purpose of ascertaining whether a question of provocation should have been submitted to the jury and the manner in which the Court examines the evidence in considering whether there is material sufficient to support the jury's conclusion that the applicant was guilty of homicide amounting, if considered independently of any possible extenuation such as provocation, to murder. Cf. the statement of Lord Devlin for the Privy Council in Lee Chun-Chuen v. The Queen (1963) AC 220, at pp 229, 230 . It was for the jury to decide what weight they would give to the evidence before them as it affected this primary question and since they have decided it against the applicant it is enough to sustain their conclusion so considered if contained in the evidence there is enough reasonably to lead to that conclusion, even if another view might be formed of this or that part of the evidentiary material. 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. (at p616)

4. The facts material to the homicide may be stated very shortly. The indictment alleged the murder of one Daniel Christopher Bingham, known as Daniel Kelly, at Jerilderie on 16th October 1960. Jerilderie is in the plain country in the Southern Riverina about forty miles north of the Victorian border. There was an out-station in the district called New Camp, consisting of a two-roomed dwelling probably of galvanized iron. There a station-hand named Noel Craig and his wife and children had been living for some weeks. Some distance away at New Camp there were shearers' quarters and a shearing shed and there some four months earlier Craig had found that Dan Kelly, as it is convenient to call the deceased, had taken up his quarters. Some time in the earlier part of September, as it would seem from Craig's evidence, the prisoner, his wife and six children arrived in a car at New Camp. The prisoner's wife was Craig's sister and was of Maori extraction. They had been married for ten years but Craig had not seen them for the last seven years before they drove up to the out-station with their six children in their car. Parker said he wished to look round for a job and asked could they stay. He and his wife and their youngest child slept in the car and the other five children slept in the Craigs' house. Shortly after the Parkers came Craig went in search of a sheep to kill and met Dan Kelly. Craig was accompanied by Parker and his wife and a nephew of Craig. Dan Kelly asked them to have a cup of tea at the shearers' huts and they all took tea in the kitchen. In the ensuing week Dan Kelly visited the house at New Camp on five or six evenings and once or twice in the day time. There were various purposes for the visits by day and in the evenings cards were played. The play went on so late on one night during the week that Dan Kelly was given a stretcher in the kitchen and slept there. On Friday (which was 13th October 1960) Dan Kelly came over early in the afternoon during the hours he might have been expected to be at work. Some comment was made and Parker said to Craig that he was only coming over to hang about Joan, Parker's wife, and asked if Craig had noticed. A little later Parker again said that Dan Kelly was only "hanging around Joan". Craig says he made no answer. On Sunday morning (16th October) about half-past ten, Craig and Parker were about to set out for a neighbouring station to borrow some tools. Dan Kelly was to go with them but after getting in the car he got out of the car to stay behind. Perhaps Kelly had come over that morning. Perhaps he had slept the night there. Parker commented to Craig that Kelly was still hanging round Joan. He called his wife Joan over to the car, according to Craig, and told her to go inside and do some work so that Dan Kelly would not hang round. Craig said that he and Parker were absent until about five minutes past one. They found Mrs. Craig and her children, Mrs. Parker and her children and Dan Kelly on their way to a dam about three hundred yards distant to swim. Parker whistled to his wife and called out to her, speaking Maori. What he said was not translated, though no reason appears for thinking that her brother, Craig, did not understand it. However, she turned round and stood while Parker drove over to her to talk to her. Craig told his wife to come and get his meal and began to use the tools he had obtained and to do some work. Kelly came to see what he was doing and then went into the house. About a quarter of an hour later Craig himself returned to the house and there he heard Parker say to Dan Kelly, "Why can't you find a single girl? Have you no principles?" Kelly replied, "I lost my principles years ago." According to the prisoner, during this conversation he referred to his wife being part Maori and thereupon Kelly made a response implying the worst intentions and of a kind most insulting to her. Parker returned too from talking to his wife in order to speak to Craig. She apparently had gone to the dam to swim, whence with the rest of the party with her she returned an hour later. Parker said to Craig, "I think there is something on between Joan and Dan Kelly" and asked Craig, "Don't you think so?" Craig replied, "It appears so". An hour and twenty minutes later Parker called Craig from the job he had returned to do. Craig went to him at his car and Parker said to him, "She is leaving with Dan and if she does I will get him. There are a lot of dark nights and one of these dark nights I will be waiting for him." Parker was a very small man and Kelly a big one and it seems that there had been some talk already of the futility of Parker attempting to deal with Kelly with his hands. A few minutes later he called Craig over to speak to him with his wife and children. He told them that he had got a job at Albury. Would she go with them there? The children said that they would like to go there. Craig says that Mrs. Parker said, "It's no good, Frank" and walked away. Craig said that Parker had already asked him to put Kelly off the place. Craig said that he would tell Kelly to go and in fact he did tell him to go. Parker got out of his car and told Kelly to get going while he was lucky: he said that if his, Parker's, wife was going with him he had better go up to the gate and wait for her, he (Parker) would escort her to the gate. Next Craig saw Parker take a broken rod from the old Ford at which Craig had been working to his, Parker's, car, get out his tool box and cut the end off. He, Craig, saw him proceed to file it: his evidence is that he asked him what he was doing, that Parker answered "Nothing": he wrenched it from Parker saying, "You had better give that to me", and that he had better pull himself together, he had gone off the deep end, and that he had the children to think of. Parker, he said, replied "I won't be here to look after the kids, - Joan will - and that other bastard will not be either". He then seemed to quieten down a little but went down to some trees and there wept and sobbed. He came back for a jacket and returned to the trees sobbing. Somewhere in this colloquy Parker said to Craig, "It is no good me fighting him, he would beat me by hand, he is too big, he fights too well". (at p619)

5. In the meantime Mrs. Parker went off, with Craig's niece and nephew, in the direction of the road, where Kelly had already gone. They helped with three bags. It was the opposite direction that Parker took to weep in the trees or bushes. According to Craig's evidence it was after the three had gone in the same direction as Dan Kelly that Parker went down to the trees or bushes and cried. After about fifteen or twenty minutes Parker came back and asked for help in starting the car. It would seem that a track starting in the opposite direction from the vicinity of the shed or hut came out on the same road, which was called the Goolgumbla Road. The prisoner may have taken that track or road. Jerilderie lay to the south along Goolgumbla Road and the couple on the bicycle went south. The evidence seemed to show, in any case, that the prisoner left in the car about five minutes later and followed them. In a more general description of Parker's conduct before his wife left, Craig said that he seemed dazed, that he followed her about and seemed to be begging her (scil. to stay). Craig said that Parker was emotionally very upset, that he was deeply in love with his wife and children and took great pride in them. There was a "knuckle duster" in Parker's car and both Parker and Dan Kelly habitually carried sheath knives. According to the evidence of a niece and nephew the three cases or pieces of luggage were carried up towards but not quite to the gate to the road. Then Joan Parker and Dan Kelly got on his bicycle and left. She sat in front of him, sideways, on the bar between the seat and the handle bars. She faced left. The prisoner overtook them. They dismounted. In a statement which the police took from the prisoner at the Jerilderie Police Station on the night of 16th October 1960 and which the notation says he signed at 11.30 p.m., the following account appears of what occurred from this point: "I started the car up and drove up the road: getting up the road I seen Kelly doubling my wife on his push bike and as I got up closer to them they both got off the bike then stood alongside the road, he was standing on the gravel and the wife was standing on the grass. I aimed the front left-hand mudguard at him and the bike after I hit him I swerved and put my foot down onto the accelerator as I was going off the road and I went through a greasy boggy patch and then swerved up over the wrong side of the road with the nose of my car facing towards the table drain. I got out of the car and I looked for the wife and at first I couldn't see her and when I first seen her she was laying in the table drain face down and I thought that I had killed her. I done my block, lost my temper and walked to where Kelly was and started hitting him, then I heard the wife moan and struggling in the water. I left Kelly and pulled the wife out of the table drain and she was in agony then. It flashed through my mind that if it had not been for Kelly I wouldn't have injured the wife, I pulled out my knife that I had in my belt and went back and stabbed him in the throat. After I done that the wife struggled and tried to sit herself up on the bank. I pulled her up further and told her to lay still and from there I went over to Johnny Littles' through the paddock and when I got to Johnny Littles' he was not there." The statement goes on to describe how he, the prisoner, broke into the empty dwelling in order to obtain the use of the telephone, how he telephoned to the police at Jerilderie to obtain medical aid as well as to bring them to the scene. The statement concluded by a brief account of what he himself next did. (at p620)

6. The prisoner gave evidence on his own behalf and gave an account of what he did to Kelly and there was medical evidence of the wounds and the cause of death. It is upon that evidence and the evidence already recounted that a detailed knowledge of the steps taken by the prisoner in the actual commission of the homicide depends. Perhaps some inference might be drawn or supported by the additional evidence of marks seen on the ground. Mrs Joan Parker was put in the witness box but declined to give evidence. (at p620)

7. The prisoner's account in his evidence in chief, led by his counsel is as follows: "Q. From the time your wife told you she was going to go away with Kelly, have you a clear recollection of what happened or can you describe your recollection of what went on at the camp that morning? You have said something about a trance. Tell us again what the state of your mind was. A. Parts of it, yes I can remember fairly well. Parts are very hazy. The children, I remember this well, as I stand here, crying, begging the wife to stay, and I remember her saying No, she would not stop with a man she did not love and she would go with Kelly. Q. Do you remember walking down the bush and back again, or up the track. Do you remember any of that? A. No, I do not. Q. You did leave the camp in your motor car. Do you recall leaving in the motor car? A. I do recall leaving. Q. Why did you leave the camp in the motor car? A. I wanted to bring the wife back to the children. Q. Did you know where your wife had gone at that time? A. All I knew was they were going over to New Camp to get Kelly's gear. Q. They said that, did they? Had that been said in conversation? A. No, it had not been said in conversation, I just more or less took it for granted. He had no clothing or anything like that with him. All his clothes were at New Camp, so I assumed he would be going over there to get his clothing and things like that. Q. You said you went in the car to get your wife to come back to the children. Do you recall when you left the camp what was your state of mind towards Kelly? A. I was not thinking of Kelly, all I was thinking about was getting the wife back and taking her back to the children. As regards Kelly I cannot explain anything, I cannot explain my feelings towards him. I had one set purpose in my mind when I left, the children, and that was to bring their mother back to them and stop her running away. Q. Did you have any intention to hurt Kelly or do anything to Kelly that you can remember? A. Definitely not. Definitely. I might have had intentions of having a fist fight with him, or trying to have a fist fight with him, or maybe to hurt him some way, but definitely no other intentions whatsoever. Q. When you got in the car do you remember anything about the knuckle duster you kept in the car? A. No, I do not remember at all. I could have picked it up when I got in the car. On that I am not really quite sure. All I do know is when I got out of the car apparently I had it with me. Q. You say "apparently". Can you tell us when you came up, as you have told us in the dock you came up, to the spot where Kelly and your wife were standing on the side of the road - do you recall that? A. Yes. Q. Do you remember how and where they were standing on the roadway and what they were doing? A. I cannot recall that quite well. I was driving up the left-hand side of the road. The wife was standing on the grass, what I took to be the grass at the side of that roadway, and Kelly would be standing on the gravel. Say for argument sake I am facing you now and you are coming towards me, she would be on his right-hand side. Q. How was he standing? Was he side-on to the road, or how was he? Do you remember the details of the position in which he was standing? A. As I was coming up to them he was standing more or less as I am now, and I came up more or less from behind. Q. You came up more or less from behind him? A. Yes. Q. Do you recall whether they had their heads turned towards you or were looking at you or anything like that, or can't you recall? A. Yes, vaguely I can. Q. As you came up to them did something happen to you as you came up close to them? A. Yes, when I was driving up towards them myself, closer and closer, they were just standing there and I was driving up closer and closer, they were just standing there and I was driving up closer and closer all the time, and everything seemed to just go black. Q. What happened after that? What do you remember after that? A. I lost control of the car just then and thinking back deeply, more still now while standing here, I have a vague recollection of a voice saying to me, "Frank, what is the matter with you?". The next thing I know I am over the other side of the road and the car is stopped. Q. Do you recall what happened then, or is there anything about it at all that you can tell us about your recollection of what took place then? A. I got out of the car. I expected to see the wife standing there. I do not know, just I thought she would be standing there. I went to run over to her and she was not there, and I hesitated. I ran over and the further I got to the crown of the road I saw the wife laying face down on the table drain facing me. Kelly was lying up on the bank a bit further away from her. I do not know then, I just seemed to lose more or less control of myself, and I raced over and I started hitting him and bashing him with the knuckle duster. I can remember part of that pretty well. All of a sudden there was a moan and groan behind me. Something stopped, I stood up straight and looked around and here was the wife trying to push herself up out of the water. I went straight to her and pulled her from the water to the bank, her head at my feet, and she collapsed. From then on I do not know what really happened. The next thing I do really remember was the wife again trying to sit up. I went back to her and pulled her up further away from the water and told her to lay still and I would go and get help. It was while I was going over to get help that things started to really penetrate and come back to me. Things that seemed unreal. I started thinking. Q. What do you mean by that? A. It started to come back really that I seemed to visualise I had stabbed a chap and it started to come back and I remember as though I had stabbed him. Yet again it was not me that stabbed him. It was just as if I had been standing back and was looking on at myself stabbing him. That went on passing through my mind. I could not really work it out or understand it. All I could see was the picture of myself stabbing the chap. I got over to Liddle's" (scil. Little's) "place and forced my way in and rung up, and went back outside, and it was then I went out on the verandah and looked at my right hand and noticed blood all over it, and I started to wonder and worry just really what I had done. I could not realize it or believe it. I could not understand it. Then I started to tell myself 'I have done it'. I had killed a chap. Yet it still seemed so unreal. That is when I was laying on the back verandah. Then I thought - I do not know - I undid my belt and just left it laying there. I think I stopped there for two or three seconds, I am not sure. Then I think I went over and washed my hands, washed the blood off them. I think I stopped there for a while." (He is speaking of Little's verandah after he had telephoned to the police.) The medical evidence is to the effect that the Government Medical Officer who, with the police, reached the scene of the homicide about 4 p.m. on 16th October 1960, found Dan Kelly lying dead on his right side on the western side of the roadway across a table drain. Both his legs were broken below the knees. He had numerous wounds on the face, throat and neck on the exposed part of the body. He was attired in a singlet and blue jeans. The body was warm but the man was dead. There were a great number of wounds on the fact (the "knuckle duster" might have been responsible) but the only two of significance were one on each side of the neck. On the right side there was an incised wound about half an inch long made by a sharp instrument which had penetrated the larynx but had missed large blood vessels. There was a wound on the left side of the neck which had penetrated at a different angle and had severed the internal jugular vein. There was a great deal of blood. The knife had penetrated further into the muscles at the base of the tongue, deeply. There was a lot of blood. The "knuckle duster" and the prisoner's knife were produced. Both bones of the legs were broken at about fourteen inches above the ground. All this was borne out by the evidence of a post mortem. Death might be attributed to the combined wounds or to the wounds in the neck, particularly the last one, and the loss of blood. (at p623)

8. Mrs. Joan Parker's injuries were of course very severe but they were not of the same character as Kelly's and she lived. (at p623)

9. The prisoner showed great remorse and anxiety over his wife and maintained that he did not mean the car to hit her. At the trial he took the position that he set out from New Camp to overtake them and get her back to the children and him and without thought of injuring Kelly, at all events beyond having a fight or the like with him, and that after driving towards them as he drew closer and closer to them standing there "everything seemed to go black" and he lost control. The description he gave in his evidence in chief has already been set out. (at p623)

10. It is convenient to take from the report of the learned judge who presided at the trial a summary of some evidence and of the course taken. "Eventually, Mrs. Parker told her husband that she was running away with Kelly. The evidence indicated that Parker was greatly upset and pleaded with her not to go. Later in the day Mrs. Parker left with Kelly on his bicycle. Parker followed in his car and drove it at high speed at Kelly where he stood with his bicycle at the edge of the road. The impact broke both Kelly's legs and may have rendered him unconscious. Parker then attacked him, where he lay, with a knuckle duster which he kept in the car, and finally stabbed him repeatedly with a knife which he always wore. The circumstances of the killing were not in dispute. The evidence was that he then broke into a nearby house and telephoned the police. He was given a lift by Mr. Jukes who drove him to the police station. Mr. Jukes and the police officers gave evidence that Parker told them that he had intended to kill Kelly. In the witness box, Parker stated that he had not intended to kill Kelly, but only to bring his wife back to their children. It was argued on his behalf that the attacks were unpremeditated and instantaneous reactions on his part to an emotional crisis of overwhelming intensity. The jury were directed that, in the circumstances of this case, provocation was not available as a defence; that irresistible impulse is not available as a defence; and that a person who attacks another with a weapon likely to cause death or serious bodily injury will normally be taken to have intended the natural and probable consequences of his attack or, at least, will be regarded as having acted with reckless indifference to human life. They were also told that if they did not find the necessary mental ingredient established beyond reasonable doubt, then they should acquit the accused of murder and find him guilty of manslaughter because, on any view of the facts, Kelly's death was brought about by acts of Parker which were wrongful and dangerous - though it was for them to decide whether they were satisfied that the accused did, in fact, cause Kelly's death and caused it while doing a wrongful and dangerous act." Inasmuch as the evidence was that the prisoner had forced the knife into Kelly's neck and through his jugular vein, no question of intent to do grievous bodily harm arose, so far as I can see. He actually did it by the very act he consciously performed, that is to say, in itself it amounted to grievous bodily harm. It may be desirable to return to this question because counsel for the prisoner in supporting this application attacked the charge to the jury in respect of the intent to inflict grievous bodily harm. But as I regard the manner in which it was treated as misconceived once the killing by the prisoner was made out to the complete satisfaction of the tribunal of fact, as clearly it was, I pass to what appears to me to be the crux of the case. The question upon which the fate of this application depends is, I think, whether it was right to withdraw from the jury the possibility of holding the homicide by the prisoner to be manslaughter and not murder because done under provocation of a kind which in the circumstances reduced, or might be regarded as reducing, what otherwise might be murder to manslaughter. It appears to have been treated as established, i.e. as proved, that the prisoner drove his car at the deceased, although perhaps he did not drive then or earlier at such a very high pace as the language of the judge's report might suggest. It seems to have been taken as proved, if not admitted, that he attacked Dan Kelly while lying on the ground and that after using the knuckle duster he drove his knife into each side of his neck or throat, death being the result, on the footing he killed him so that he committed the crime of murder, unless by something exterior to the killing or leading up to it the homicide was justified or reduced to manslaughter. Nothing seems to me to have been of more importance at the stage when the case was in the Court of Criminal Appeal than a consideration of the possibility of a jury finding manslaughter on the ground of provocation. On the application before this Court the Solicitor-General for New South Wales appeared for the Crown and he informed us that he conceded that there were substantial arguments that could be put for the applicant that provocation should have been left to the jury and that he would not oppose special leave being granted limited to that ground. When the learned Solicitor-General came to argue the application for the Crown he went somewhat further. After saying that he understood that before the Court of Criminal Appeal the prosecutor argued that the learned judge was right in withdrawing the issue from the jury, he went on to say that so far he (the Solicitor-General) had not said more than that there are substantial arguments that could be put for the appellant. The learned Solicitor-General proceeded: "If the Court was asking me what I would submit, I would be inclined to say that on the whole I would submit that the issue ought to have been left to the jury, but there are some difficult questions, and that is a rather hesitant reply." (at p625)

11. In dealing with any question of the law of homicide which is affected by its history there is more than one matter in its bygone history that must not be forgotten. There was of course the view that an act causing death must expose the man who did it to some prejudicial legal consequences and it was for the jury to find the circumstances and the court to give judgment as to the consequences. The several points involved in this statement appear from the following passage from Chitty's Practical Treatise on Criminal Law (1816) vol. 3, p. 739: "If upon the trial of the indictment for murder, the prisoner appear to the jury to be guilty of manslaughter, they may find him guilty of the latter offence, 2 Hale, 302. Where the killing be proved, but the circumstances show it to have been a misfortune, or to have arisen in self-defence, they anciently found the special matter, and left the court to judge of its effect; who, it is said, might give judgment for manslaughter, or even murder, though the jury concluded et sic per infortuniam, or sic se defendendo, 2 Hale, 302. And even if the court agreed with the jury as to the innocence of the party accused, the verdict was recorded, and his goods forfeited, Id. ibid. But it was long ago the practice, in cases of infancy and insanity, for the jury, under the direction of the court, to find a verdict of acquittal, 2 Hale, 303. Fost. 279. And Mr. Justice Foster ably contends for the legality of the practice of finding general verdicts of not guilty, in every case where the mind is free from crime, and the defendant has been merely the unfortunate instrument of another's destruction, Fost. 271 to 289. He thinks, however, that there are some cases in which the party has been guilty of neglect, where the judge may properly direct a special finding, and so compel him to sue out his pardon under the statute of Gloucester, c. 9, which by that statute he is entitled to receive. All his personal property will, in this case, be forfeited, unless the King, in whom it is vested, thinks proper to restore it, Fost. 289. Where the jury doubt whether the facts proved amount in law to murder, they find a special verdict, in which the facts are stated as proved, and the inference is left to the judges; who may give judgment of death if they think the offence is murder, though malice is not stated in terms, nor the killing found to be felonious. 9 Co. 69. Palm. 548." See further Sir W. S. Holdsworth, History of English Law, vol. 3, pp. 311-315. The definition of murder was developed from the exclusion by statute of benefit of clergy and thus "malice aforethought" or malitia praecogitata came to look like the test of the capital nature of the homicide. The prevalence of duelling made this of daily importance. Sir W. S. Holdsworth wrote: "In 1604 the statute of stabbing (2 James I, c. 8), said to have been passed in consequence of the affrays between Englishmen and Scotchmen at James I's court, enacted that if a man stabbed another who had no weapon drawn or had not first struck at the stabber, and the person stabbed died within six months, the stabber should be guilty of murder. As Stephen has pointed out, the development of the law as to the circumstances under which homicide is committed with 'malice prepense', and so is murder, has superseded the necessity for the statute". Holdsworth, History of English Law vol. 4, p. 501. (at p627)

12. But it had long been recognized that a homicide might be "reduced", that is extenuated, to manslaughter if it was the result of a provocation which the law would accept as sufficient extenuation to warrant the crime being treated as manslaughter. East's Pleas of the Crown (1803) vol. 1, p. 238 after enumerating a number of examples says: "In all the instances above enumerated the party killing is supposed to have taken all advantages in the heat of blood over the person slain; but to have received such a provocation as the law presumes might in human frailty heat the blood to a proportionable degree of resentment, and keep it boiling to the moment of the fact: so that the party may rather be considered as having acted under a temporary suspension of reason, than from any deliberate malicious motive. And it has been shown, that in the case of a legal provocation, strictly so considered, this heat will extenuate the guilt of the party acting under its adequate influence, even though he made use of a deadly weapon. The same extenuation will apply even to lesser provocations, where the instrument or foce, not being in their own nature dangerous, were so applied as to induce a reasonable presumption that correction and not destruction were intended to be effected. It has also been more than once observed, that the punishment inflicted upon any sort of provocation, whether in its nature admitted by law to be such, or taken only as explanatory of the act done, must not greatly exceed the offence received. This has been urged with caution; because in those cases where the mercy of the law interposes in pity to human frailty, it will not try the culprit by the rigid rule of justice, and examine with the most scrupulous nicety whether he cut off the exact pound of flesh." Now it is obvious that the manner of life of the period and the conceptions and moral relations which might in point of causality be responsible for homicide were in many respects remote from those of today. Sir W. S. Holdsworth observes (History of English Law, vol. 8, p. 302): "The readiness with which all classes resorted to lethal weapons to assert their rights, or to avenge any insult real or fancied, gave abundant opportunity for elaborating the distinctions between the various kinds of homicide, and, in particular, the distinction between murder and manslaughter." . . . Holdsworth sets out two or three examples from the sixteenth and seventeenth centuries and goes on: . . . "On the question what would amount to a provocation, it was ruled in 1666 that mere words would not be adequate provocation for homicide; 'but if upon ill words both parties suddenly fight, and one kill the other, this is but manslaughter, for it is a combat between two upon sudden heat.' But other cases show that this question gave rise to many difficult questions and divisions of judicial opinion. In cases where the death had not followed immediately upon, and was not solely occasioned by, the stroke, the law was inclining to the view that the person who gave the stroke was guilty of homicide; but that a person who, without using physical violence, had occasioned a death by 'working on the fancy of another', or by unkind or harsh usage, which was not ordinarily calculated to have this effect, was not guilty. The rules as to what facts would prove that a man had killed another by misadventure or se defendendo were being elaborated." Had Parker found Dan Kelly and his wife in adultery and then and there killed Kelly with his knife it seems clear enough that the jury might have held that he acted on sufficient provocation and that the crime was manslaughter only. There would in such a case be no delay in which the blood might cool and cease "his safer guides to rule". In the present case Parker had been engaged in an emotional attempt to prevent Kelly taking his wife away with him: it did not cease, the pursuit was but part of it. He had been insulted, taunted, he had listened to his children's prayers to his wife not to depart with his adulterous rival. He drove after them as they left. So far from there being an interval for cooling, time was occupied in events, speech on the part of Dan Kelly and also of his wife, and the mounting certainty that Kelly would take his wife from him. It is not for the Court to find the facts but for the jury and certainly on the evidence the inference was open to them that after a persistent emotional effort to prevent the success of Kelly's attempt to deprive him of his wife and his children of her care, and after passionate appeals to Kelly and Joan Parker, met by Kelly with insults, the prisoner armed himself and followed them with no intermission or interval and in a completely distraught condition. We are not living in the conditions of the sixteenth, seventeenth or eighteenth century. According to the standards governing our society in the later nineteenth century and the twentieth century the succession of events and the conduct of Dan Kelly brought a very strong provocation to an emotional nature, a provocation still in actual operation when Parker came upon Dan Kelly with his wife. That at all events is a view which the jury were entitled to adopt. They might, if properly directed, have considered that (again to use Othello's words) "passion having (his) best judgment collied assayed to lead the way." See further Lee Chun-Chuen v. The Queen (1963) AC 220 . (at p629)

13. Much difficulty about provocation appears to have arisen from the dicta contained in the speech of Viscount Simon in Holmes v. Director of Public Prosecutions (1946) AC 588 , particularly at p. 598, upon which much of the obiter dicta in R. v. Scriva (No. 2) [1951] VicLawRp 41; (1951) VLR 298 , appears to rest. When Viscount Simon says: " . . . where the provocation inspires an actual intention to kill, . . . or to inflict grievous bodily harm, the doctrine that provocation may reduce murder to manslaughter seldom applies" (1946) AC, at p 598 I should have thought that the use of the word "seldom" implied that sometimes the doctrine nevertheless did apply. But in Lee Chun-Chuen v. The Queen (1963) AC 220 , Lord Devlin (speaking for the Privy Council) said, "It is plain that Viscount Simon must have meant the word 'actual' to have a limiting effect and that he had in mind some particular category of intention. He cannot have meant that any sort of intention to kill or cause grievous bodily harm was generally imcompatible with manslaughter because that would eliminate provocation as a line of defence. In the present case, for example, earlier in his summing-up the judge properly directed the jury that they could not find murder unless there was an intent to kill or cause grievous bodily harm. By telling them that if that intent was present, they could not find manslaughter, he was telling them that they must find murder or nothing and so in effect excluding the issue of provocation (1963) AC, at p 227 ." In Attorney-General for Ceylon v. Kumarasinghege Don John Perera (1953) AC 200 , Lord Goddard for the Privy Council had said: "The defence of provocation may arise where a person does intend to kill or inflict grievous bodily harm but his intention to do so arises from sudden passion involving loss of self-control by reason of provocation. An illustration is to be found in the case of a man finding his wife in the act of adultery who kills her or her paramour, and the law has always regarded that, although an intentional act, as amounting only to manslaughter by reason of the provocation received, although no doubt the accused person intended to cause death or grievous bodily harm" (1953) AC, at p 206 . In Lee Chun-Chuen's Case (1963) AC 220 , Lord Devlin says this: "Their Lordships think it right to reaffirm the law as stated by Lord Goddard and to do so with special reference to Lord Simon's dictum, to which Lord Goddard did not advert. Lord Goddard's statement can be reconciled with the dictum only if the word 'actual' in the dictum is treated as the distinguishing feature. Their Lordships do not think it necessary to interpret the dictum any further than to say that it cannot be read as meaning that the proof of any sort of intent to kill negatives provocation. Lord Simon was evidently concerning himself with the theoretical relationship of provocation to malice and in particular with the notion that where there is malice there is murder; and he may have had it in mind that actual intent in the sense of premeditation must generally negative provocation. Their Lordships do not think that this part of his speech can safely be taken as a basis for a direction to a jury, since even with the most careful explanation it is liable to be misunderstood. Where, as in the present case, the substance of it was given to the jury without any explanation their Lordships agree with the Supreme Court that it amounts to a serious misdirection in law" (1963) AC, at p 228 . There has been an ever recurring tendency to treat "provocation" as merely something inconsistent with and therefore negativing malice aforethought, and no doubt that can be seen in the discussion of the reference by Viscount Simon to intention. In the constant use in definitions or descriptions of "provocation" of the word "sudden" the same desire appears to exclude cases of premeditation. On the facts of the present case a jury might readily have taken the view that no premeditated intention had actuated the homicide, that the prisoner had responded to the sustained mental torture by the deceased and his own wife until all self control broke. In the view of Lord Devlin (for the Privy Council): "If there was some material on which a jury acting reasonably could have found manslaughter, it cannot be said with certainty that they would have found murder. It is not, of course, for the defence to make out a prima facie case of provocation. It is for the prosecution to prove that the killing was unprovoked. All that the defence need do is to point to material which could induce a reasonable doubt" (1963) AC, at p 229 . (at p630)

14. I do not think that the criteria of "provocation" should nowadays be expressed in terms directed to duels and personal quarrels among men who ordinarily bear arms or to violence produced by violence. But however that may be, the jury might find all the elements of suddenness in the unalleviated pressure and the breaking down of control as the prisoner came to the end of his pursuit of the man taking away his wife. Unless the special provisions of the statute law of New South Wales require a different conclusion, I would treat the case as one in which the prisoner was entitled to a direction authorizing the jury, if they so chose, to find manslaughter and not murder. (at p631)

15. In Holmes v. Director of Public Prosecutions (1946) AC 588 it was held that provocative words without action did not afford sufficient provocation to reduce to manslaughter a homicide that otherwise amounted to murder. This was not laid down absolutely, but subject to an explanation of what was meant by "mere words" and an allowance of the exclusion of cases where there are circumstances of a most extreme and exceptional character: apparently what was in contemplation were words of a "violently provocative" nature. It seems that considered as a general or abstract question, there had been varying views or dicta expressed. In New South Wales an attempt to settle the question by statute was made and by the Criminal Law Amendment Act 46 Vict. No. 17, s. 370, a provision was enacted in the following terms: "Where on the trial of a person for murder it appears that the act causing death was induced by the use of grossly insulting language or gestures on the part of the deceased the jury may consider the provocation offered as in the case of provocation by a blow. And where on any such trial it appears that the act or omission causing death does not amount to murder but does amount to manslaughter the jury may acquit the accused of murder and find him guilty of manslaughter and he shall be liable to punishment accordingly. Provided always that in no case shall the crime be reduced from murder to manslaughter by reason of provocation unless the jury find that (a) such provocation was not intentionally caused by any word or act on the part of the accused (b) that it was reasonably calculated to deprive an ordinary person of the power of self-control and did in fact deprive the accused of such power (c) and that the act causing death was done suddenly in the heat of passion caused by such provocation without intent to take life." It will be seen that the provision includes a statement of what one would suppose to have been the long accepted rule that a prisoner might upon an indictment of murder be convicted of manslaughter. Chitty's Criminal Law, (1816) vol. 1, p. 638. Apart from a desire to clear up the doubt as to mere words as provocation it is not easy to see why it was framed. In the Crimes Act, 1900 s. 23 represents the material parts of s. 370. The great importance of the provision in the present case lies in the concluding words "without intent to take life". When the prisoner thrust his knife into each side of Dan Kelly's throat the absence of all intention of every kind to take life might be too hard to credit. But having regard to the observations by Lord Devlin already quoted and upon general principles of interpretation it seems proper to understand the words in question as limited to premeditated intention. Further, the following account of the "modern law" of the "burden of proof" in relation to the subject, given by Lord Devlin in Lee Chun-Chuen's Case (1963) AC 220 must be kept in mind: "It is not, of course, for the defence to make out a prima facie case of provocation. It is for the prosecution to prove that the killing was unprovoked. All that the defence need do is to point to material which could induce a reasonable doubt" (1963) AC, at p 229 . This of course is qualified in application by the quotation from Lord Simon which follows. But it leaves it as a matter for the jury. cf. the discussion in Vallance v. The Queen [1961] HCA 42; (1961) 108 CLR 56 . (at p632)

16. In my opinion the prisoner's case on provocation should have been left to the jury and the conviction of murder cannot stand. (at p632)

17. In Stapleton v. The Queen [1952] HCA 56; (1952) 86 CLR 358 we said: "The introduction of the maxim or statement that a man is presumed to intend the reasonable consequences of his act is seldom helpful and always dangerous" (1952) 86 CLR, at p 365 . That was some years before the decision in Director of Public Prosecutions v. Smith (1961) AC 290 , which seems only too unfortunately to confirm the observation. I say too unfortunately for I think it forces a critical situation in our (Dominion) relation to the judicial authority as precedents of decisions in England. Hitherto I have thought that we ought to follow decisions of the House of Lords, at the expense of our own opinions and cases decided here, but having carefully studied Smith's Case (1961) AC 290 I think that we cannot adhere to that view or policy. There are propositions laid down in the judgment which I believe to be misconceived and wrong. They are fundamental and they are propositions which I could never bring myself to accept. I shall not discuss the case. There has been enough discussion and, perhaps I may add, explanation, to make it unnecessary to go over the ground once more. I do not think that this present case really involves any of the so-called presumptions but I do think that the summing-up drew the topic into the matter even if somewhat unnecessarily and therefore if I left it on one side some misunderstanding might arise. I wish there to be no misunderstanding on the subject. I shall not depart from the law on the matter as we had long since laid it down in this Court and I think Smith's Case (1961) AC 290 should not be used as authority in Australia at all. (at p632)

18. I am authorized by all the other members of the High Court to say that they share the views expressed in the foregoing paragraph. (at p633)

19. I think that Parker should be tried again: that is unless it were thought better in all the circumstances to substitute a conviction of manslaughter for that of murder. (at p633)

TAYLOR AND OWEN JJ. This is an application for special leave to appeal from an order of the Court of Criminal Appeal of New South Wales which dismissed an appeal to that Court by the applicant from his conviction upon an indictment for the murder of Daniel Kelly on 16th October 1960. The substantial point raised in the application is whether the learned trial judge erred in refusing to submit the issue of provocation for the consideration of the jury. Upon the hearing of the application there was considerable discussion concerning conflicting statements in Holmes v. Director of Public Prosecutions (1946) AC 588 and Attorney-General for Ceylon v. Perera (1953) AC 200 relating to the relevance of a proved intent to kill in relation to such an issue and, also, as to the meaning and effect of s. 23 of the Crimes Act, 1900 (N.S.W.). Before discussing these matters, however, it is desirable to refer to the circumstances in which the killing took place. (at p633)

2. Some six weeks or so before 16th October 1960 the applicant and his wife, together with their six children, went to stay with the applicant's wife's brother, Noel Craig, who was a farm labourer employed on a station property near Jerilderie. Kelly lived some little distance away and he met the applicant and his wife about a week or so before his death. He immediately became friendly with them and commenced to visit the Craigs' home. Almost from the outset, it seems, he began to pay noticeable attention to the applicant's wife. She did not resent Kelly's attentions but the applicant did and spoke to her about the matter on a number of occasions. Nevertheless, Kelly continued as a constant visitor and things came to a head within a very short time. It seems that on 16th October 1960, which was a Sunday, Craig and the applicant drove from the former's home to the nearby property of a friend of Craig for the purpose of obtaining some mechanical parts which were needed for the repair of items of farming equipment. They left about 10.30 a.m. and returned a few minutes after 1 p.m. Kelly had stayed at Craig's home on the Saturday night and was still there when Craig and the applicant drove off on the Sunday morning. Before they left the applicant had taken his wife aside and told her to keep away from Kelly "as the only reason he wasn't going with us was that he wanted to hang around with her". When they came back they saw that Kelly was swimming in the nearby dam and they observed that the applicant's wife and children were walking towards the dam. The applicant called his wife back and spoke to her but she then retraced her steps and went to the dam with the children for a swim. They returned to the house about an hour later when the applicant again spoke to his wife about the way "Kelly was hanging around her" and asked her "Couldn't she notice it herself?" She answered "Yes", whereupon the applicant said "Why didn't you tell me earlier instead of arguing with me about it. What do you think about it?" The only reply his wife then made was "Well, ask him". All she would say was "You see him". The applicant approached Kelly straightaway, who said that he was in love with the applicant's wife and asked "What are you going to do about it? Anyway, are you in love with her?" According to the applicant the subsequent conversation was as is contained in the following passages extracted from the applicant's evidence and statements: "I said, 'Yes, she has borne me six children'. He said something about taking the wife in one hand and beating me with the other. I said my wife was a quarter caste Maori. He said he had never had a quarter caste Maori girl, that they ought to be pretty good. (at p634)

3. I approached Kelly about the way he had been hanging around the wife and asked him if he considered it was the right thing to do. He said, 'I don't know about that, do you love her'. I said, 'Yes, of course, she borne me six children'. I said, 'Do you think it is the right thing for a joker to walk into a house and turn around and do a thing like that, even if the woman turned around and showed him a bit of affection. If he was any decent sort of chap he would not take any notice of it. I said, 'If it had been your wife and it was in your place, I know what I would have done because a chap that does things like that has got no principle at all'. He said, 'I lost my principle a long time ago'. I said, 'Yes, that's the bloody type of joker you are. No bloody principle at all'". (at p634)

4. The applicant then had a further conversation with his wife when she informed him that she was in love with Kelly. She added, "Three days ago we made arrangements to run away together". But she said that they did not want to tell him as they did not want to hurt him. The applicant, as he says, tried to make her see reason and asked her to stay "for the kiddies' sake". However, she was resolved to go, saying, "It's no use Frank, I couldn't stop with a man I don't love. I am in love with Kelly", and, in spite of the applicant's protestations and pleas, she remained adamant. Shortly afterwards the applicant asked Craig to tell Kelly to leave the place and this Craig then did. There can be no doubt that right up to the time that Kelly left the applicant was in a highly emotional state and shortly before he left he obtained a brake rod from an old Ford motor-car and commenced to sharpen the rod. Craig took the rod from him and told him to "Pull himself together, that he had gone off the deep end and had the children to think of". The applicant was then alleged to have said "It will be no good me fighting him, he would beat me by hand, he is too big, he fights too well". According to Craig the applicant seemed to quieten down a little at this stage and Craig went back to his work. Before Kelly left the applicant told him that if his wife was going with him he had better get up to the gate and wait there and, shortly afterwards, the applicant's wife left in the direction of the road with her bags, assisted by her niece and nephew. There is evidence that after this event the applicant went off in the opposite direction and was weeping. Very shortly afterwards he came back to the house then went to his car and proceeded in it towards the gateway of the property which opened on to the main road. His wife and Kelly appear to have proceeded down this road on Kelly's cycle with the applicant's wife, so we are told, seated on the handle bars. According to the applicant's evidence at the trial he followed his wife because he wanted to bring her back. When he came within sight of them he saw that Kelly and his wife had dismounted and were standing beside the road. In the course of a statement made to the police the applicant said that he "aimed the front left-hand mudguard at Kelly and the bicycle and then swerved back on to the other side of the road". In his evidence, however, the applicant said that as he saw Kelly and his wife "Just standing there . . . everything seemed to just go black". Up to that point of time, he asserted in his evidence, the only purpose which he had in mind when he left in his car was to bring his wife back to their children and to stop her from running away. When Kelly was struck by the motor-car both of his legs were broken whilst the impact, apparently, threw the applicant's wife into the tabledrain at the side of the road where he saw her lying face downwards. In his statement to the police the applicant said that he thought that he had killed her and he said "I done my block, lost my temper and walked to where Kelly was and started hitting him". Then he heard his wife moan and struggling in the water. He left Kelly and "pulled his wife out of the table-drain and she was in agony then". He then said "It flashed through my mind if it had not been for Kelly I would not have injured the wife, I pulled out my knife that I had in my belt and went back and stabbed him in the throat". Having done that he endeavoured to make his wife a little more comfortable, then went to a nearby homestead, forced his way in and telephoned the police and informed them of what had happened. (at p636)

5. There is no question upon the evidence that the first attack made upon Kelly as he lay upon the ground was made with a knuckle-duster which, it is said, the applicant had found some time before and which he had left in his car. With this instrument he struck Kelly a great many times about the face. Finally, he drew a small knife, which, it is said, he usually carried, and inflicted a wound upon Kelly which penetrated the larynx. Another wound in the neck severed the internal jugular vein and penetrated into the muscles at the base of the tongue. Altogether, it is said, there were more than ten and less than forty separate wounds on the face, forehead and throat. The medical evidence further tendered to establish that the immediate cause of Kelly's death was the severance of the jugular vein. (at p636)

6. In contrast to the applicant's evidence at the trial to the effect that he had followed Kelly and his wife for the purpose only of bringing his wife back, the applicant made a number of statements to the effect that he had formed the intention to kill Kelly before he set out in his car. To one witness, who appeared on the scene shortly after the occurrence, he said he had run over Kelly on purpose and thought that he had killed him outright. He asked this witness whether Kelly was still alive and when the witness replied that he appeared to be breathing the applicant said that he ought to be dead and "that he had meant him to be". According to this witness the main thing the applicant seemed to be worried about was the fact that he had struck his wife. To police officers later that day the applicant is alleged to have said that he intended to kill Kelly but did not mean to hurt his wife. He is further alleged to have said that he had set out to kill Kelly, that he was running away with his wife and that he had decided earlier that day to kill him. He added that if he had had a fight with Kelly he would have been beaten and so he had decided to kill him. Indeed, he is said to have stated that when he and Craig arrived back at Craig's house at lunch time that day Kelly was hanging around and he decided that he could not "beat him fighting and would kill him". (at p636)

7. In New South Wales s. 23 of the Crimes Act makes some provision with respect to the issue of provocation in trials for murder. We say "some provision" because it was contended before us that the proviso appearing at the end of sub-s. (2) of that section applies only to cases where the provocation alleged is constituted by grossly insulting language or gestures. The ground upon which this is asserted, as we understand the argument, is that sub-s. (1) purports to deal only with provocation so constituted and, accordingly, that the proviso subsequently appearing is limited in its application to provocation of that character. But, in our view, the first step in this argument is erroneous. What sub-s. (1) (and its predecessor - 46 Vict. No. 17, s. 370) did was, in effect, to enlarge the content of "provocation" by providing that there should be comprehended by that expression "grossly insulting language" and "gestures". In such a case the jury might "consider the provocation offered, as in the case of provocation by a blow". At common law it was "settled" that words were not a "sufficient provocation" (R. v. Taylor [1771] EngR 42; (1771) 5 Burr 2793, at p 2796 [1771] EngR 42; (98 ER 466, at p 468) ) though, where an assault was relied upon to establish provocation, accompanying or immediately antecedent words might be regarded as aggravating "the provocation given by the assault" (Reg. v. Smith (1866) 4 F & F 1066, at p 1067 [1862] EngR 146; (176 ER 910, at p 911) ). The object and effect of the prototype of sub-s. (1) was, therefore, to enlarge the common law notion of what constituted provocation and to entitle a jury to consider the additional matter in precisely the same way as provocation by a blow. As will be seen acceptance of the applicant's contention would mean that a jury would be required to consider provocation constituted by grossly insulting language or gestures in a manner quite different from that in which they would be required to consider provocation by a blow. Additionally it may be observed that sub-s. (2) of s. 23 - apart from the proviso itself - has nothing to say concerning provocation. It is quite general and its provisions have been accepted as a statutory recognition of the common law right of a jury to return a verdict of manslaughter in any case even though the facts point to murder or nothing (Brown v. The King [1913] HCA 70; (1913) 17 CLR 570, at p 592 and Beavan v. The Queen [1954] HCA 41; (1954) 92 CLR 660, at p 662 ). Upon these views there are, in our opinion, no grounds for supposing that when the proviso specifies "that in no case shall the crime be reduced from murder to manslaughter by reason of provocation" except in certain specified circumstances, it is referring only to provocation constituted by language or gestures and not to provocation generally. Indeed consideration of what we have referred to as the "specified circumstances" must, we think, lead inevitably to the conclusion that no such severable reference was intended. (at p638)

8. The proviso is in the following terms: "Provided always that in no case shall the crime be reduced from murder to manslaughter, by reason of provocation, unless the jury find: - (a) That such provocation was not intentionally caused by any word or act on the part of the accused; (b) That it was reasonably calculated to deprive an ordinary person of the power of self-control, and did in fact deprive the accused of such power, and, (c) That the act causing death was done suddenly, in the heat of passion caused by such provocation, without intent to take life." The first thing to be noticed about the proviso is that an accused person cannot succeed on the issue of provocation - whatever that term may be taken to include - unless the jury is satisfied affirmatively of the matters specified. This is, of course, clearly inconsistent with what was declared to be the law of England in Woolmington v. Director of Public Prosecutions [1935] UKHL 1; (1935) AC 462, at p 482 and accepted in later cases such as Holmes v. Director of Public Prosecutions (1946) AC 588, at pp 597, 598 ; Chan Kau v. The Queen (1955) AC 206, at p 211 ; Reg. v. Lobell (1957) 1 QB 547, at p 551 ; Bullard v. The Queen (1957) AC 635 ; and as discussed and explained in this country in Packett v. The King [1937] HCA 53; (1937) 58 CLR 190 and R. v. Mullen [1938] HCA 12; (1938) 59 CLR 124 . If, therefore, the proviso were to be taken to be intended to refer only to provocation by language or gestures the result would be that in cases involving an alleged provocation of that character the onus of proof would lie upon the accused, but, in cases involving other forms of provocation the onus of proof on that issue would lie upon the Crown once the issue fairly arose. And since, frequently, alleged provocation will consist, in part only, of language or gestures, the view of the proviso for which the applicant contends would produce the extraordinary result that the onus of proof would in any such case, lie, in part, on the Crown and, in part, on the accused. Or would it, perhaps, be necessary in such a case for a trial judge to instruct the jury, first of all, to determine whether the language complained of should be regarded merely as aggravating provocation by way of a blow, or whether the blow complained of ought, merely, to be regarded as aggravating grossly insulting language and then to instruct the jury appropriately as to the onus of proof in each case? These considerations confirm us in the view that, for the reasons already given, the proviso applies to all forms of provocation and that, in New South Wales, in so far as it makes provision for that subject matter, it is exhaustive. (at p639)

9. Coming then to the matters which the proviso requires the accused to establish in any such case the first observation to be made is that no real issue arose upon the first of these matters. There was no suggestion that the provocation alleged was caused, intentionally or otherwise, by any word or act of the applicant and, if the issue of provocation had gone to the jury, the applicant would have been entitled to a direction that a finding in his favour should be made concerning this particular condition. But it was asserted that it was for the jury, and the jury alone, to determine whether, in the terms of the proviso, the provocation which he had received was reasonably calculated to deprive an ordinary person of the power of self-control, and did in fact deprive the applicant of such power, and, further, that his acts which caused Kelly's death were done suddenly, in the heat of passion caused by such provocation, without intent to take life. (at p639)

10. Much of the discussion concerning par. (c) of the proviso revolved around the statement in Attorney-General for Ceylon v. Perera (1953) AC 200 that: "The defence of provocation may arise where a person does intend to kill or inflict grievous bodily harm but his intention to do so arises from sudden passion involving loss of self-control by reason of provocation. An illustration is to be found in the case of a man finding his wife in the act of adultery who kills her or her paramour, and the law has always regarded that, although an intentional act, as amounting only to manslaughter by reason of the provocation received, although no doubt the accused person intended to cause death or grievous bodily harm" (1953) AC, at p 206 . However, a few years earlier, the House of Lords, in Holmes v. Director of Public Prosecutions (1946) AC 588 , had declared that: "The whole doctrine relating to provocation depends on the fact that it causes, or may cause, a sudden and temporary loss of self-control whereby malice, which is the formation of an intention to kill or to inflict grievous bodily harm, is negatived. Consequently, where the provocation inspires an actual intention to kill (such as Holmes admitted in the present case), or to inflict grievous bodily harm, the doctrine that provocation may reduce murder to manslaughter seldom applies. Only one very special exception has been recognized, viz., the actual finding of a spouse in the act of adultery. This has always been treated as an exception to the general rule: R. v. Manning (1671) T Raym 212 (sub nom R. v. Maddy 1 Vent 158; 2 Keb 829) . Blackstone Commentaries (Book IV., p. 190) justifies the exception on the ground that 'there could not be a greater provocation'". It will be seen that in the later case the illustration of a husband surprising his wife in the act of adultery is given as a particular application of the general rule whilst, in the other, it is expressly given as an exception to the rule. The point which was the subject of consideration in these cases has been much discussed (see e.g. Russell on Crime 11th ed. (1958) vol. 1, p. 578 et seq.), but many of the observations which have been made might have been more illuminating if they had proceeded upon a common understanding of what constitutes proof of an intent to kill. Such an intent is not necessarily or conclusively established by proof that "the offender had intentionally struck a deadly blow" (see Russell on Crime (supra p. 578)) though much of the discussion that has taken place seems to have assumed that it is (cf. also Stapleton v. The Queen [1952] HCA 56; (1952) 86 CLR 358 ; Smyth v. The Queen [1957] HCA 24; (1957) 98 CLR 163 ; and Director of Public Prosecutions v. Smith (1961) AC 290 ). However this may be, it does not fall to us, we think, to attempt to reconcile the two apparently conflicting statements or to elect between them though what was said in Perera's Case (1953) AC 200 was relied upon to urge that we should confine the operation of the proviso to s. 23 to provocation constituted by language or gestures only. But s. 23 has declared the law on the subject in New South Wales for a very long time and its predecessor was enacted at a time when it was by no means certain that the law was as Perera's Case (1953) AC 200 now declares. Further we should add both s. 23 and its predecessor were enacted when, according to much authority, the onus on the issue of provocation lay upon the accused. In these circumstances, we are unable to perceive any reason why we should strain to give to the proviso any meaning other than that which upon its face it so clearly bears. (at p640)

11. On this view of the section the learned trial judge, in our opinion, acted correctly in withdrawing the issue of provocation from the jury. The reason why we hold this opinion may be stated shortly. The applicant followed Kelly and his wife either with the intention of killing the former or with no such intent. If he did follow them with that intent that is the end of the matter. It is, we think, not unfair to say the evidence that he did follow with such an intent is almost overwhelming. Indeed, the evidence is that the applicant so declared on more than one occasion and this evidence, so far as we can see, was not disputed. But in evidence at the trial he said that when he followed them he merely did so in order to bring his wife back and that he had no intention of killing Kelly at that time. If the jury were at liberty so to find then, whatever may have been the applicant's condition earlier in the day, he was not, when he set out to follow them, deprived of the power of selfcontrol in any relevant sense. It may, perhaps, be said that the sight of his wife and Kelly together on the road was just another circumstance in the sequence of events relied upon as provocation and that this was the final event which caused him to lose his self-control. But no such case was made and, in any case, it was not the running down of Kelly which caused his death. On the applicant's evidence at the trial it was the sight of his injured wife, whom he, at first, thought had been killed, that determined him to kill Kelly. This is the alternative view which emerges from his evidence at the trial and on neither view was there a case of provocation to go to the jury. (at p641)

12. There is, we think, a further reason why it was proper that this issue should not have been left for the jury's consideration. It has been said that the proviso is silent upon the question whether there must be some reasonable relationship between the provocation and the act or acts causing death. This is so in the sense that no express mention is made of this factor. But, surely, when the proviso requires that the provocation must be such that it was reasonably calculated to deprive an ordinary person of the power of self-control, and did in fact deprive the accused of such power, it is speaking of loss of the power of self-control in relation to the act or acts causing death. In other words, the question is not whether there was some loss of the power of self-control, but whether the loss of self-control was of such extent and degree as to provide an explanation for or, to constitute, in some measure, an excuse for the acts causing death. And, of course, the provocation must have been of such a character as was calculated to deprive an ordinary person of the power of self-control to that extent. In our view the sequence and nature of the acts which caused Kelly's death were such that it was not open to a jury to find for the applicant on either of these matters. (at p641)

13. Some subsidiary matters were also discussed upon the application but these were disposed of in argument and it is unnecessary to refer to them again. Accordingly the application for special leave should, in our opinion, be refused. (at p641)

MENZIES J. Before 1883 when the provision which has since been re-arranged and is now s. 23 of the Crimes Act (N.S.W.) was introduced, provocation as a mitigating circumstance reducing a killing from murder to manslaughter was well understood. Prima facie it was murder for one person to kill another by purposely doing an act likely to cause death but if the doing of the fatal act was provoked by unsought conduct of the deceased which, when the act was done, had so inflamed the mind of the accused that he had lost control of himself and was conduct of the kind that could reasonably be regarded as likely so to affect an ordinary man, then the killing was manslaughter, not murder. Some conduct, however, could not in law amount to sufficient provocation and, in particular, words or gestures of themselves could not be enough - at any rate, where the fatal blow was given with a weapon likely to cause death or grievous bodily harm so that there was manifested an intention to kill: Reg. v. Mawgridge (1706) Kel 119 (84 ER 1107) ; Foster's Criminal Law p. 290; East's Pleas of the Crown (1803) vol. 1, p. 233. Insulting words could, however, be taken into account when they accompanied acts: Reg. v. Sherwood [1844] EngR 840; (1844) 1 Car & K 556 (174 ER 936) ; Reg. v. Smith (1866) 4 F & F 1066 (176 ER 910) . (at p642)

2. In his charge to the jury in Reg. v. Kirkham (1837) 8 Car & P 115 (173 ER 422) Coleridge J. used language which brings home today as clearly as doubtless it did to the jury he was addressing the sense and simplicity of the law on this subject that he was expounding. He said: - ". . . as it is well known that there are certain things which so stir up man's blood that he can no longer be his own master, the law makes allowance for them. If, therefore, a person being stung and excited inflicts a fatal blow or wound, provided the provocation be sufficient, and acting upon him at the time, and recent, he will only be guilty of manslaughter; and in this the law does not depart from its original principle, because it then supposes that the individual was not guilty of malice prepense, but that what he did was done in a moment of overpowering passion, which prevented the exercise of reason; so that the general distinction is this: in the one case the man is cool, and must be taken to have malice; in the other, if he has had sufficient provocation, and has acted from that provocation while it is fresh, then he has not malice. In some instances you must feel certain, from the acts of the party, that he had a grudge. Suppose a man destroyed another by poison; if it were proved that he had previously bought the poison and prepared the cup, although he should have had a quarrel with the party at the very time of administering it, you could not doubt that there was express and actual malice. If a person has received a blow and in the consequent irritation immediately inflicts a wound that occasions death, that will be manslaughter. But he shall not be allowed to make this blow a cloak for what he does; and, therefore, as in the case of poisoning, though there have been an actual quarrel, and the deceased shall have given a great number of blows, yet if the party inflict the wound, not in consequence of those blows, but in consequence of previous malice, all the blows would go for nothing . . . I told you just now he must be excused if the provocation was recent and he acting on its sting, and the blood remained hot, but you must consider all the circumstances, the time which elapses, the prisoner's previous conduct, the deadly nature of the weapon, the repetition of the blows, because, though the law condescends to human frailty, it will not indulge human ferocity" (1837) 8 Car & P, at pp 117-119 (173 ER, at pp 423, 424) . In making the qualification imported by the words "provided the provocation be sufficient" and "if he has had sufficient provocation", Coleridge J. no doubt had in mind two elements, (a) that certain conduct could not in law amount to provocation and (b) that the conduct relied upon as provocation for a fatal blow must be such as might reasonably provoke such a blow from an ordinary man so that, for instance, a mere tap on the shoulder could not be regarded as sufficient provocation for a stabbing or a shooting: East op. cit. p. 23; see for modern statements Mancini v. Director of Public Prosecutions (1942) AC 1 where Viscount Simon L.C. said: " . . . the mode of resentment must bear a reasonable relationship to the provocation if the offence is to be reduced to manslaughter" (1942) AC, at p 9 and Packett v. The King [1937] HCA 53; (1937) 58 CLR 190 where Dixon J. (as he then was) said (1937) 58 CLR, at pp 217,218 : "At common law the test of provocation is not whether the occurrence is sufficient to deprive the particular individual in question of his self-control, having regard to his nature and idiosyncrasies, but whether it would suffice to deprive a reasonable man in his situation of self-control (R. v. Lesbini (1914) 3 KB 1116 )". (at p643)

3. The citations that I have made from Reg. v. Kirkham (1837) 8 Car & P, at pp 117-119 (173 ER, at pp 423, 424) make it clear that where there was a premeditated killing there could be no provocation having legal significance but do not exclude provocation as a mitigating circumstance where what was done manifested an intention to kill. That an intentional killing could in some circumstances be reduced by provocation to manslaughter is beyond question but it became doubtful whether or not that provocation which consists of one spouse taking the other in an act of adultery was the only instance of this: see Holmes v. Director of Public Prosecutions (1946) AC 588, at p 598 ; R. v. Semini (1949) 1 KB 405 ; Attorney-General for Ceylon v. Perera (1953) AC 200 . This doubt has been resolved in favour of the wider application of the rule in Lee Chun-Chuen v. The Queen (1963) AC 220 . (at p644)

4. Looking at s. 23 of the Crimes Act (N.S.W.) in the setting of the law as it stood in 1883, it is reasonably clear that one of its purposes was to modify the rule already referred to that in general mere words and gestures could not in law amount to provocation sufficient to reduce a killing which would otherwise be murder to manslaughter, but the section went further. At first sight it is attractive to treat the proviso to sub-s. (2) as in reality a proviso to sub-s. (1) and so to regard the proviso as applying only to provocation by words or gestures, but further consideration of the section as a whole seems to me to render such a construction inadmissible. Sub-section (2) has been regarded as a legislative affirmation that upon any indictment for murder the jury has the right to return a verdict of guilty of manslaughter rather than murder and as dealing with a subject matter different from that dealt with by the first sub-section: Brown v. The King [1913] HCA 70; (1913) 17 CLR 570 ; Beavan v. The Queen [1954] HCA 41; (1954) 92 CLR 660 . The reference in sub-s. (2) to an "omission causing death" demonstrates that the sub-section is not confined to the subject matter of sub-s. (1) which deals only with acts causing death. In consequence it seems to me a necessary construction that the proviso governs every case where the jury is required to consider whether a killing which would otherwise be murder is manslaughter by reason of provocation. So construed the proviso does substantially alter the common law, particularly in denying legal significance to provoking conduct in any case where the act causing death was done with intent to take life. It would not be impossible to read the phrase with which the proviso concludes (i.e. "without intention to take life") if the words stood in a different context as meaning no more than that the act causing death was done without premeditation but, having regard to the preceding words of par. (c) of the proviso, I do not think the phrase can be so understood. Although there is no doubt that the presence of premeditation leaves no room for provocation in law and does so clearly enough by virtue of the language of the proviso without the last words, it cannot be conjectured, let alone inferred, that the legislature intended to leave provocation open in every case of an intentional killing without premeditation: e.g. the shooting or stabbing of one who grossly insults another by calling him a bastard or a communist or some other opprobrious name. (at p645)

5. Despite my suspicion that the draftsman of s. 23 did not have in mind all the instances of what could be sufficient provocation in law to reduce to manslaughter a homicide that would otherwise be murder, I have come to the conclusion that there is really no alternative to reading the section as applying to all kinds of provocation and as meaning that in New South Wales, unless the jury finds no intention to kill, it cannot acquit an accused person of murder and convict him of manslaughter simply on the ground that the act causing death was provoked by what the deceased said or did. It is to be observed that it is a positive finding of absence of intention to kill, not the absence of a finding of an intention to kill, which the section contemplates and its language shows that the burden of satisfying the jury of the absence of an intention to take life rests upon the accused. In 1883 such a provision was quite understandable but now, in the absence of a statutory provision so providing, it would seem that as a result of Woolmington v. Director of Public Prosecutions [1935] UKHL 1; (1935) AC 462 once provocation is raised the onus would lie upon the Crown to prove beyond reasonable doubt all the elements of murder including the absence of provocation sufficient to reduce the crime to manslaughter. The position apart from s. 23 would be similar to that established in Chan Kau v. The Queen (1955) AC 206 where the issue of self-defence appears and goes to a jury: see Mancini's Case (1942) AC 1 . Section 23, however, leaves no room for the application of Woolmington's Case [1935] UKHL 1; (1935) AC 462 or for the words of Lord Devlin in Lee Chun-Chuen v. The Queen (1963) AC 220 : "It is not, of course, for the defence to make out a prima facie case of provocation. It is for the prosecution to prove that the killing was unprovoked. All that the defence need do is to point to material which could induce a reasonable doubt" (1963) AC, at p 229 and, because of its terms, in this case the problem which the learned trial judge had to decide was whether there was evidence upon which the jury could reasonably find the various elements described in pars. (a), (b) and (c) of the proviso to s. 23 (2) of the Crimes Act. Hardie J. decided there was not and accordingly declined to direct the jury that they could find the accused guilty of manslaughter rather than murder on the ground of provocation. His decision was upheld by the Court of Criminal Appeal. (at p645)

6. The evidence upon which the question of the correctness of his Honour's ruling falls to be decided is set out fully in the joint judgment of Taylor and Owen JJ. and I will not recapitulate it in detail. It shows that about 3 p.m. on the day in question the deceased took the accused's wife away from her home, her husband and her family; that she went with him willingly; that according to the accused's evidence in the conversation which the deceased had with him shortly before leaving the deceased used language to him that could be regarded as grossly insulting; that the accused contemplated attacking the dceased and because of his size and strength started to fashion a weapon to use, a pointed steel rod, which was taken away from him; that about 3.20 p.m. after the deceased and the wife had left the accused drove in his motor car after them; that when at about 3.30 p.m. he caught up with them they were standing beside the road and he ran them down and injured them both; that the accused then attacked the deceased who was at his mercy, first with a knuckle duster and then with a knife, cutting his jugular vein; that when he had killed the deceased the accused telephoned the police and afterwards made a number of statements to the effect that he had done what he did to the deceased intending to kill him. The evidence to my mind affords no basis for a finding that the deceased's insulting language to the accused played any part in causing the acts which caused death and accordingly, if there is here provocation, it is essentially the deceased's conduct in taking away the accused's wife. Whether or not this could in law amount to provocation is a question that, so far as I have been able to discover, has not been considered as a separate problem but the observations of Viscount Simon speaking for all the members of the House of Lords in Holmes v. Director of Public Prosecutions (1946) AC, at p 598 suggests that it could not. The statement of Parke B. in Pearson's Case (1835) 2 Lewin 216 (168 ER 1133) points the same way. That learned judge said: "If a man kill his wife, or the adulterer, in the act of adultery, it is manslaughter, provided the husband has ocular inspection of the act, and only then." See too R. v. Ellor (1920) 85 JP 107 where the Court of Criminal Appeal said that threats by a wife to a husband to commit adultery would not be sufficient provocation to reduce the killing of her from murder to manslaughter. These and other cases show a marked reluctance to permit any extension of Maddy's Case [1726] EngR 568; (1671) 1 Ventris 158 (86 ER 108) . (at p646)

7. If, however, what the deceased said and did could, independently of s. 23 (2), amount to provocation, I do not think there was any evidence to justify the learned trial judge in putting provocation to the jury because there was no evidence upon which the jury could find that the accused did not intend to cause the death of the deceased. It seems to me that the critical time was after the deceased had been knocked down by the accused's car and that what then occurred left no room for doubting that the accused killed the deceased intentionally. Although other points were raised, the one I have dealt with is the only one that could warrant the granting of special leave but for the foregoing reasons I consider special leave to appeal should be refused. (at p647)

WINDEYER J. This is an application for special leave to appeal from a decision of the New South Wales Court of Criminal Appeal. The applicant, the prisoner, is serving a sentence of penal servitude for life for murder. On his arraignment he had pleaded not guilty. The jury returned a verdict of guilty, adding a strong recommendation for mercy. The circumstances must arouse compassion and may justly attract clemency. But it cannot be said that there was not evidence that would fully support the verdict. Nevertheless, I think this is a case in which this Court should give special leave to appeal, because I consider that the question of provocation should have been put to the jury with a direction as to the circumstances in which provocation reduces to manslaughter what would otherwise be murder. 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. (at p647)

2. Counsel for the applicant earnestly criticized the summing up of the learned trial judge on many grounds. In substance they come down to two: first that the possibility of a reasonable doubt that the prisoner had an intent to kill or inflict grievous bodily harm was not sufficiently put to the jury by his Honour; secondly that his Honour was wrong in the ruling he gave as to provocation. (at p647)

3. As to the first of these, the evidence may be summarized as in the Court of Criminal Appeal Sugerman J. summarized it: "At most", he said, "it amounts to no more, in effect, than that what the appellant did was done under the compulsion of blind rage and that at his trial he had no clear recollection of all the details, though he recollected them clearly enough immediately after the event" (1962) SR (NSW), at p 737; 80 WN, at pp 639, 640 . Perhaps one should add to this the accused's statement that his conduct was brought to its violent climax because the sight of his wife departing with the deceased suddenly brought to his mind the memory and emotions of his childhood when his own mother had deserted her home. The learned trial judge dealt with this aspect of the defence as follows: He told the jury that counsel for the accused sought to explain the attacks upon the deceased as "unpremeditated and instantaneous reactions to an emotional crisis of overpowering intensity, an emotional crisis claimed to have been brought about not only by the acute problems on that afternoon besetting the accused but also to a large measure by a somewhat similar experience in his early impressionable childhood in New Zealand". His Honour then said that counsel relied upon this to show an absence of intent to kill or inflict grievous bodily harm and that he invited the jury to acquit the accused of murder and to bring in a verdict of manslaughter. As to this his Honour said: "Our law does not recognize or allow either as a complete or partial defence to a charge of murder, the fact that the accused committed the act or acts resulting in the death, by reason of some overpowering or even irresistible impulse or whilst subject to some severe emotional stress or strain". There was no suggestion that the prisoner was insane. Therefore, provocation set aside, his Honour's direction so far was, in my opinion, unobjectionable. But it is complained for the prisoner that his Honour went on to say: "In the case of an attack, whether premeditated or not, on another person with a weapon or instrument likely to cause death or serious bodily injury, the law normally - that is to say assuming the person in question is of the age of reason and is in law responsible and accountable for his actions - treats the person who has made the attack as having intended the natural and probable consequences of the use by him, under all the circumstances present of the weapon or instrument". (at p648)

4. Any reference to the natural and probable consequences of acts is apt to-day to let loose a flood of debate about so-called "objective" and "subjective" tests, a debate that can readily become far removed from the realities of the case in hand. I have stated my own understanding of the basic principles as this Court has stated them and as I accept them, and I need not repeat what I said in Vallance v. The Queen [1961] HCA 42; (1961) 108 CLR 56, at p 83 . In every case where intent is in question the question is what did the accused - the man before the court - intend. Of that, the acts he did may well provide the most cogent evidence. In some cases the evidence that the acts provide may be so strong as to compel an inference of what his intent was, no matter what he may say about it afterwards. If the immediate consequence of an act is obvious and inevitable, the intentional doing of the act imports an intention to produce the consequence. Thus to suppose that a sane man who wilfully cuts another man's throat does not intend to do him harm would be absurd. A sane man who intentionally belabours another with a knuckle-duster while he is lying helpless on the ground and then stabs him with a knife, cutting his throat, cannot rationally be said not to have meant to do him grievous bodily harm at the least. Moreover, it might well be thought that such deeds must have been done with a reckless indifference to human life. That, I think, is what his Honour meant to convey to the jury and what his summing up taken as a whole would have conveyed. He was speaking of the facts of the case the jury had to try. He had refused to put the question of provocation to the jury. If he were right in that, then I do not think that the rest of what he said could have misled the jury. He later recalled them and told them, quite explicitly, that if they were not satisfied beyond reasonable doubt that the accused in fact had the intent or the reckless indifference - as described in s. 18 of the Crimes Act, 1900 (N.S.W.) - necessary to constitute murder, he should be acquitted of murder; that if they thought that what he did amounted to manslaughter they should convict him of manslaughter; and that on these matters the facts were for them alone to determine. I do not think the jury were left in any doubt as to that issue or as to their powers and responsibilities in coming to a verdict in this case, although I agree that the expressions that his Honour used about natural and probable consequences could, in other contexts, be misleading. (at p649)

5. I pass to the next matter - his Honour's charge concerning provocation. He said: "There is one other point that I think I should deal with briefly and that is the matter you have heard mentioned from the bar table from time to time throughout this case - namely the question of provocation. Provocation can in certain cases be relied upon by an accused to reduce what would otherwise be murder to manslaughter. I have ruled that this is not one of those cases, gentlemen; I have ruled that as a matter of law, with the result that you are not in this case concerned with any question of provocation". (at p649)

6. With respect I think his Honour there came to a wrong decision. The question for him was a difficult one. He gave it careful consideration. He had not the benefit of the most recent pronouncement of the Privy Council on the topic. Both at the trial and in the Court of Criminal Appeal counsel for the Crown supported his Honour's ruling. But in this Court the Solicitor-General, having himself considered the matter, said, in a helpful survey of the facts and the law, that the Crown would not oppose leave to appeal, because he conceded that there was some evidence of provocation to be submitted to the jury. In these unusual circumstances we should, I think, give great weight to the matters to which the Solicitor-General directed attention - but without surrendering the discretion involved in deciding whether or not the case is one for special leave to appeal. (at p650)

7. The central question of law is what is the scope and effect of s. 23 of the Crimes Act, 1900 (N.S.W.), which re-enacts s. 370 of the Criminal Law Amendment Act of 1883 (N.S.W.). This is not expressed to be a complete code supplanting the common law concerning provocation: whether or not it does so is one question that arises. It is therefore convenient to consider first the common law background of the New South Wales statute at the date it was enacted. (at p650)

8. The application to-day of the common law principles by which murder may be reduced to manslaughter is illustrated by such well known recent decisions as Mancini v. Director of Public Prosecutions (1942) AC 1 ; Kwaku Mensah v. The King (1946) AC 83 ; Holmes v. Director of Public Prosecutions (1946) AC 588 ; Reg. v. McCarthy (1954) 2 QB 105 and others referred to during the argument. These common law rules are derived from a series of cases occurring mainly in the seventeenth and eighteenth centuries, and depend upon rulings of single judges or decisions upon special verdicts or in some cases rulings of the twelve judges given at Serjeants' Inn after respites or reprieves. Some of these cases arose in times when men commonly wore swords and were often very ready to draw them from their scabbards upon a sudden quarrel. Questions of provocation and of self-defence were originally often entangled. Chance-medley still had a place in the law. And the law of murder and manslaughter was still being developed. All homicide had once been felonious. And only in 1547 had the distinction between murder and manslaughter been finally settled by the last of the statutes which made homicide of malice aforethought a non-clergyable felony, leaving other punishable homicides clergyable. Malice aforethought thus became the essential element in the non-clergyable crime of murder. Originally the word "aforethought" probably had more or less its natural meaning involving some degree of premeditation, describing at least a deliberate and calculated act. "Malice prepense", said Coke, "is where one compasseth to kill, wound or beat another and doth it sedato animo": 3 Inst. 50. Killing of deliberate intent was murder, for it was done of malice aforethought. Killing upon a sudden falling out when swords were drawn and blows exchanged was at first said not to be so. But even in Coke's time malice prepense had largely ceased to mean premeditated harm. Murder had come to be defined as an unlawful killing with malice aforethought, express or implied. And malice aforethought, it was said, was implied in any intentional killing. It mattered not whether it was planned or done suddenly, in cold blood or in heat. But if it were provoked the case might be different. For, said Coke, there is malice "if one kills another without any provocation on the part of him that is slain". And Holt, who wrote the report of Mawgridge's Case (1706) that appears in Kelyng's Reports [1708] EngR 24; (1706) Kel 119 (84 ER 1107) approached the matter in the same way. A sudden killing was done of malice, just as was a planned killing, provided it was without provocation. And thus it has been put from the time of Hale - who spoke of "such provocation as will take off the presumption of malice": Pleas of the Crown, vol. 1, p. 451 - to the case of Holmes v. Director of Public Prosecutions (1946) AC 588 where Viscount Simon said that the whole doctrine relating to provocation depends upon a negativing of malice. To his Lordship's words in that case and their effect I shall come later. Sir James Fitzjames Stephen in his History of the Criminal Law, (1883) vol. 3, p. 87 adopted the same view. "The whole law of provocation rests . . . upon an avowed fiction - the fiction of implied malice. Malice is implied when a man suddenly kills another without provocation. What is the provocation which will rebut the legal presumption of malice in cases of sudden killing?" (at p651)

9. It might have been better if the earlier writers had used some other word than "malice" to express the notion of wilful wickedness in the expression malitia praecogitata. "Malice aforethought" might then have had a less artificial and less confusing meaning and a less troubled history. However that may be, it is clear enough that the rule that a sufficient provocation could reduce the guilt of homicide from murder to manslaughter was founded at bottom on an appreciation that there are differing degrees of moral responsibility in homicide, that for what a man does on a sudden and serious provocation he is less to blame morally than for what he does deliberately and in cold blood. Thus it was that Blackstone said that the difference between manslaughter and murder "principally consists in this, that manslaughter arises from the sudden heat of the passions, murder from the wickedness of the heart": Commentaries, IV. p. 190. The doctrine of provocation alleviating a homicide, so as to make it manslaughter not murder, thus developed alongside the development of the defences of misadventure and self-defence, which became grounds of excuse for homicide, instead of making it merely pardonable as originally they had. By the doctrine of provocation the common law judges and the old writers, Hale, Hawkins, Foster and others thus brought the law of homicide a stage further in its progress from strict liability for an act causing death to a concept of guilt being the result of a state of mind. (at p652)

10. It is not every provocation that will extenuate guilt and reduce murder to manslaughter. It must, to use the antiquated language of the eighteenth century, as repeated by East in his Pleas of the Crown (1803) vol. 1, p. 238, be: "such a provocation as the law presumes might in human frailty heat the blood to a proportionable degree of resentment, and keep it boiling to the moment of the fact: so that the party may rather be considered as having acted under a temporary suspension of reason than from any deliberate malicious motive". Constantly repeated expressions are a "sudden provocation", an acting "on the sudden" and "in the heat of passion". The provocation must cause a "transport of passion and loss of self-control". As a comprehensive explanation, what Tindal C.J. said to the jury in R. v. Hayward [1835] EngR 229; (1833) 6 Car & P 157 (172 ER 1188) , may be quoted: He told them that the question for their consideration would be "whether the mortal wound was given by the prisoner while smarting under a provocation so recent and so strong, that the prisoner might not be considered at the moment the master of his own understanding; in which case, the law, in compassion to human infirmity, would hold the offence to amount to manslaughter only: or whether there had been time for the blood to cool, and for reason to resume its seat, before the mortal wound was given; in which case the crime would amount to wilful murder" (1833) 6 Car & P, at p 159 (172 ER, at p 1189) . To this may be added, as a more modern example, what Devlin J., as he then was, said in his direction to the jury so warmly approved by Lord Goddard in R. v. Duffy (1949) 1 All ER 932 . It began: "Provocation is some act, or series of acts, done by the dead man to the accused which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind". (at p652)

11. Because the doctrine of provocation thus depends upon an uncontrolled, unreasoning and impulsive act, some writers, among them Mr. J. W. C. Turner in his edition of Kenny's Outlines of Criminal Law (1958) p. 154, have spoken of it as a case in which the law recognizes an "irresistible impulse". But I think that term is better avoided in this connexion. The law is concerned with an irresistible impulse as ordinarily understood only when it is a manifestation of the insanity of an insane man. It is concerned with an act done under provocation only when it is the act of a sane man. What is insisted upon, if provocation is to avail as a defence, is that the action of the accused should be a normal reaction of an ordinary man. It may be that, on psychological analysis, the impulsive act of a sane man and an insane impulse are similar, in that in each case there is an act done, without deliberation or volition, in immediate reaction on the presentation of a situation. But law looks at them differently, whether or not it is psychologically proper to do so. I thought that in this case the argument for the applicant failed at times to recognize the distinction. It was not suggested that the accused was insane; yet it seemed that it was urged at the trial, and in some sense repeated to us, that because of provocation and distress of mind he acted without intent to do what he did. But to rely upon provocation it was necessary to show that the provocative conduct of the deceased aroused in the prisoner an intent, in the legal sense, to do the act he did, not that it robbed him of the capacity to form an intent. (at p653)

12. As a result of early cases in which the question of murder or manslaughter was submitted to the ruling of the judges, two rules became established concerning particular forms of conduct which would or would not suffice. At one end of the scale stood the case of a husband suddenly discovering his wife actually in the act of adultery. If he thereupon immediately killed her or her paramour, it was not murder but manslaughter. It was so held in 1671 in R. v. Maddy [1726] EngR 568; (1671) 1 Ventris 158 (86 ER 108) ; and ever since this has been taken to be a rule of law. It is ordinarily said to depend upon the doctrine of provocation. But it may be that it has an older derivation; for in many parts of Europe in ancient times a husband finding a man in adultery with his wife might lawfully kill him upon the spot: see Blackstone, Commentaries, Book IV, p. 191; Puffendorf Book II, chap. 5, 15. (at p653)

13. At the other end of the scale stood pronouncements that reproaches, however grievous, and insulting words or gestures, however offensive, would not count as provocation if they were unaccompanied by any assault or blow. A blow might be answered by a blow causing death; and that would be manslaughter. But mere words, not being menaces, would not suffice to justify or explain a blow: if death ensued, that would be murder. Perhaps the rule that words alone would not suffice was not always quite strict. The early writers drew a distinction between homicide upon a grave provocation and homicide upon a slight provocation. A slight provocation would not excuse the use of a deadly weapon manifesting an intention to kill; but if the man provoked "had given the other a box on the ear, or had struck him with a stick or other weapon not likely to kill and had unluckily and against his intention killed, it had been but manslaughter": Foster, Discourse on Homicide, 3rd ed. (1792), p. 291. But it was only in exceptional cases, if at all, that mere words would count, even as slight provocation. And this is perhaps still the common law rule: see Holmes' Case (1946) AC 588 . (at p654)

14. Between the two extremes of the common law - killing an adulterer taken in the act, which was always but manslaughter, and killing provoked by mere words which was nearly always, if not always, murder - are many rulings of the judges concerning provocation on particular facts. Many of them show how different in weight and character are the things that matter in one age from those which matter in another. The remarkable proceedings in R. v. Taylor and Smith v. Taylor [1771] EngR 42; (1771) 5 Burr 2793 (98 ER 466) and the cases of R. v. Brown [1730] EngR 105; (1776) 1 Leach 148 (168 ER 177) ; R. v. Snow [1730] EngR 103; (1776) 1 Leach 151 (168 ER 178) ; and Reg. v. Smith [1866] EngR 37; (1866) 4 F & F 1066 (176 ER 910) are some examples of the way in which judges dealt with particular facts. In the last of these Byles J. said that if two military officers met in the street, and one called the other a coward and a scoundrel, and spat in his face, and he immediately drew his sword and stabbed him, he thought it would be manslaughter. This as late as 1866. The spitting would prevent it being a case of words alone. But he said "if to take a case at the other extreme, an ordinary quarrel arose between husband and wife, and the wife spat at her husband, and the husband thereupon killed the wife, this, I think, would be murder" (1866) 4 F & F, at p 1067 (176 ER, at p 911) . At one period it seemed that in this branch of the law principle might founder in a quagmire of single instances. It has been rescued by the recognition that the question is ultimately one of fact, to be determined by the application of general principles to particular facts, rather than by seeking for analogies among cases decided in earlier times in different social conditions. The cases of adultery and of mere words, however, remain apparently more or less hard and fast rules of law. (at p655)

15. Sir James Fitzjames Stephen by his History of the Criminal Law and his other works had a large part in putting provocation on a basis of general principle. Articles 245 and 246 of his Digest of the Criminal Law (1877) sum up the common law. They may be aptly quoted here in full for they accurately stated the law as it was at the very time when his cousin, Sir Alfred Stephen, was engaged in the work of reforming it in New South Wales by the statutory provisions on which this case turns: (at p655)

16. Article 245, "Homicide, which would otherwise be murder, is not murder, but manslaughter, if the act by which death is caused is done in the heat of passion, caused by provocation, as hereinafter defined, unless the provocation was sought or voluntarily provoked by the offender as an excuse for killing or doing bodily harm". (at p655)

17. Article 246, "Provocation does not extenuate the guilt of homicide unless the person provoked is at the time when he does the act deprived of the power of self-control by the provocation which he has received, and in deciding the question whether this was or was not the case, regard must be had to the nature of the act by which the offender causes death, to the time which elapsed between the provocation and the act which caused death, to the offender's conduct during that interval, and to all other circumstances tending to show the state of his mind". (at p655)

18. The last passage was approved in the judgment in Mancini's Case (1942) AC, at p 9 . It is important because of the last few words which recognize that the whole doctrine is referable to the state of mind of the accused. But there is this qualification - the matter must be considered from the standpoint of the mind of an ordinary man in the circumstances. (at p655)

19. I leave now the rules of the common law and turn to the New South Wales Crimes Act, 1900. The relevant provisions are s. 18, which defines or describes murder and provides that every other punishable homicide shall be taken to be manslaughter, and s. 23. Both these provisions were part of the great reform of the criminal law of New South Wales made by the Criminal Law Amendment Act of 1883. This measure modified, added to and consolidated the previous statute law of the Colony and codified some parts of the common law. In particular it did away with the old phrase "malice aforethought" as an element in murder, by an express statement of the circumstances in which murder shall be taken to have been committed. This was the result of s. 9, now s. 18 of the Crimes Act. And by s. 370 it enacted the provisions that are now s. 23 of the Crimes Act. Section 23 is in the identical words of s. 370; but its sentences are now numbered as two sub-sections, instead of being in an unbroken sequence. That makes no difference to the construction of the section. The Act of 1883 was the delayed product of the work of the Royal Commission on Law Reform, appointed in 1870, which in 1871 had presented its report, with a draft bill for the reform of the criminal law annexed. Several attempts to have the bill passed proved abortive. It was not until 1883 that it became law. And by then it had undergone changes and had had many new provisions added, so that as ultimately enacted it differs in many ways from that submitted by the Royal Commission. I mention this because the Solicitor-General brought to our notice the comments on s. 370 appearing on pp. 145 and 203 of the Criminal Law Manual (1883) by Sir Alfred Stephen and Mr. Alexander Oliver. This is an interesting work because Sir Alfred, when Chief Justice, had been President of the Royal Commission; and, having retired as Chief Justice, he was a member of the Legislative Council on the various occasions when the bill was before Parliament: and Mr. Oliver, the Parliamentary Draftsman, had been Secretary of the Royal Commission. The authors therefore said in their introduction that they "naturally entertain for the measure which they edit a paternal regard". But parents do not always well understand their children. Draftsmen are no exception. I greatly doubt therefore whether, even if this contemporary commentary on the Act were directly in point, we would be entitled to base any conclusion on it. It would be a different matter, perhaps, if the report of the Royal Commission had referred to the particular matter with which we are concerned. It might then be permissible to look at it, not for interpreting the enactment, but for ascertaining the particular defects in the earlier law that it was intended to remedy: Assam Railways and Trading Co. Ltd. v. Commissioners of Inland Revenue (1935) AC 445 ; South Australia v. The Commonwealth [1942] HCA 14; (1942) 65 CLR 373, at pp 410, 439 . But, in fact, the report, although it deals with murder and manslaughter, says nothing about provocation: and the original proposals of the Commissioners did not include any provision dealing with that matter. Section 370 was thus an afterthought. If it were legitimate to refer to its origin and legislative history, it might be found more correct to say it was the piecemeal result of Parliamentary after-thoughts. But it is not legitimate to consider how in the course of its Parliamentary history this provision came to take the form in which it was enacted. It must be construed as it stands and now as part of the Crimes Act, 1900. (at p657)

20. It is obvious that the purpose and effect of what is now sub-s. (1) was to abrogate the common law rule that insulting words or gestures alone cannot amount to a provocation sufficient to reduce a killing from murder to manslaughter. That much is clear. But is this its only purpose? Does sub-s. (1) govern and control the whole? That is the first question. If it does, some difficulties would disappear. But the language does not really admit of this construction. Sub-section (2) refers to "the act or omission causing death". Sub-section (1) and the third requirement of the proviso refer only to "act" not to "act or omission". This is understandable, because provocation may explain an act done in the heat of passion; but it can hardly explain, still less excuse, an omission to act. On the whole, therefore, I think that sub-ss. (1) and (2) are quite independent provisions - sub-s. (1) merely enlarging the class of provocative conduct that can suffice to reduce a killing to manslaughter, sub-s. (2) being a general provision, and the proviso a statement of conditions that must be fulfilled for provocation to extenuate murder. Sub-section (2) presents no difficulty as a general proposition. It was at common law always open to a jury who found that a killing was unlawful to refuse to find the element of malice aforethought necessary to make it murder and thus to bring in a verdict of manslaughter. That they may sometimes do so from motives of mercy or compassion, although the facts point only to murder, means that their verdict is unreasonable, and in that sense improper, not that it is unlawful or beyond their power: see Beavan v. The Queen [1954] HCA 41; (1954) 92 CLR 660 and cases there referred to ; also Packett v. The King (1937) 58 CLR, at p 213 . It has been suggested that sub-s. (2) is unnecessary if it be nothing more than an enunciation of a common law rule. But it should be remembered that, in relation to murder and manslaughter, the Act of 1883 was intended to be a restatement of common law doctrine, but shorn of some of the extravagances of malice aforethought and constructive malice. At common law murder was reduced to manslaughter by a provocation sufficient in Hales' words "to take off the presumption of malice", that is to say to remove the implication of malice aforethought that the deed created. As the new statutory provisions supplanted the old learning concerning malice aforethought, an express preservation of the jury's right to acquit of murder and convict of manslaughter was prudent. And as the common occasion for doing so was when provocation existed the proviso is not out of place. I go now to it. (at p657)

21. It states accurately and succinctly certain elements of the common law concerning provocation, as understood in 1883. But it is not an exhaustive statement of the law on the topic, for it does not expressly provide that the manner of retaliation must not be disproportionate to the provocation. That doctrine has come in for some academic discussion and criticism in text books and periodicals: see Criminal Law Review 1954, p. 744 and p. 904; Russell on Crime 11th ed. (1958) vol. 1, p. 610. But it has an early and respectable origin in the distinction that the old writers made between a slight and a grave provocation, and it is soundly related to the ordinary reactions of an ordinary man. An insult may arouse strong resentment; but an ordinary man does not on that account so far forget himself as to use a deadly weapon. Whatever criticisms be made of it, the rule that the act provoked must bear some reasonable relationship to the provocative act is now authoritatively recognized as part of the common law: Lee Chun-Chuen v. The Queen (1963) AC 220, at pp 231, 232 . And, although not expressed in s. 23, it must be understood: cf. Attorney-General for Ceylon v. Perera (1953) AC 200 . (at p658)

22. To come now to the three matters that the statute states a jury must find before they can, in reliance on provocation, find a verdict of manslaughter instead of murder: The first, that such provocation was not intentionally caused by the accused, is merely a repetition of the old common law rule that a contrived provocation will not suffice. Richard Mason's Case (1756) Foster 133 (168 ER 66) is an early example. There the judges said: "the blows were plainly a provocation sought on his part, that he might execute the wicked purpose of his heart, with some colour of excuse". (at p658)

23. The second requirement, that the provocation was "reasonably calculated to deprive an ordinary person of the power of self-control and did in fact deprive the accused of such power", is merely a statement of the central principle of the common law of provocation. (at p658)

24. The third requirement is "that the act causing death was done suddenly, in the heat of passion caused by such provocation, without intent to take life". This also, as I read it, merely describes an element of the common law. The words are a single composite description of an act provoked. The phrase ought not, I think, to be read as if, broken into parts, it stated several matters to be considered separately and independently of one another. It is true that the words "without intent to kill", if they be read as a separate specific element, and unqualified by their context, cause difficulties, as did the dictum of Viscount Simon in Holmes' Case (1946) AC 588 , that "where the provocation inspires an actual intention to kill . . . or to inflict grievous bodily harm, the doctrine that provocation may reduce murder to manslaughter very seldom applies" (1946) AC, at p 598 . But the Privy Council has recently put an end to academic controversy about Viscount Simon's dictum by saying that "it cannot be read as meaning that the proof of any sort of intent to kill negatives provocation. Lord Simon was evidently concerning himself with the theoretical relationship of provocation to malice and in particular with the notion that where there is malice there is murder; and he may have had in mind that actual intent in the sense of premeditation must generally negative provocation": Lee Chun-Chuen v. The Queen (1963) AC, at p 228 . It is in that way that the words "without intent to take life" in s. 23 of the New South Wales Act ought, I think, to be understood, To read them as if they described the absence of an intent such as is involved in the concept of mens rea, the sense in which the words "intent to kill" are used in s. 18 of the Act, would be to treat the Act as having overturned completely the law of provocation in New South Wales by removing the foundation on which it rests. To read them in that way and to give them that consequence seems to me, with respect to those who think otherwise, unnecessary and unjustifiable. Rather they should, I think, be read secundum materiam. They are part of a phrase expressive of an element in the common law doctrine of provocation, the fundamental assumption of which is that the provocation produces, in the words of East, a "suspension of reason arising from sudden passion", a frame of mind inconsistent with "deliberation or reflection". It is this which removes from the act done the element of presumed malice which makes homicide murder at common law. The distinction is discussed in an article by Dr. J. Ll. L. Edwards, The Doctrine of Provocation in the Law Quarterly Review, vol. 69 where, at p. 549, the author says: "The essential distinction constantly stressed . . . is between a preconceived, planned intention to kill and a sudden, spontaneous intention to kill". This, I consider, is correct, and I adopt a suggestion made by Barry J. in a learned article on this subject in Res Judicatae, vol. 4, p. 133. The words "without intent to take life" in s. 23 mean, I think, using his Honour's words, "a premeditated intent to kill, which must really mean an intent to kill not primarily aroused by the provocation". (at p659)

25. In New South Wales the law concerning provocation is to be found in s. 23, not in the common law. But, for the reasons I have given, I regard s. 23 as consistent with the common law. Indeed it is an affirmation of it - not an alteration, except that it enlarges its scope by putting provocation by insulting language or gestures in the same position as provocation by a blow. That is how the section has been understood: R. v. Withers (1925) 25 SR (NSW) 382; 42 WN 113 . (at p660)

26. Was the learned trial judge right in withdrawing the question of provocation from the jury's consideration in this case? The general rule is that if there is any evidence on which a jury, acting reasonably, could find the issue of provocation in favour of the accused the question must be left to them to decide as a question of fact; but if there is no such evidence the judge ought not to leave the question to them. Where this rule is statutory, as in the Tasmanian Criminal Code, it has been explained by Dixon J., as he then was, in Packett v. The King (1937) 58 CLR, at pp 217, 218 by saying that "the reason why the question whether any matter alleged is capable of constituting provocation is made a matter of law lies in the main in the necessity of applying an overriding or controlling standard for the mitigation allowed by law . . . The Court is entrusted with the duty of ruling whether the matter relied upon is capable of depriving an ordinary man of his self-control". The same considerations prevail where the matter depends upon common law alone, or upon the impact of common law doctrine upon statutory enactment (as in New South Wales). As Lord Devlin said in an extra-judicial utterance - his Hamlyn lecture on Trial by Jury (1958) p. 86 - there is a theoretical difficulty in reconciling a direction to a jury that they cannot acquit of murder on the ground of provocation with the decision in Woolmington's Case (3). But however that may be, the common law rule is now well established. If there be any material on which a reasonable jury might find that there was such provocation as could in law extenuate the crime, the question whether it did so must be left to them under proper directions as to the conditions or elements that must exist in fact if it is to have that effect. It is for them to consider whether those conditions in fact existed. Unless they are sure they did not, the accused is entitled to the benefit of their doubt. That is to say at common law, as now understood, it is for the prosecution to prove that the killing was unprovoked; and the question of provocation ought not to be withdrawn from them, the jury, if there be evidence which could create a reasonable doubt: see Chan Kau v. The Queen (1955) AC 206 ; Bullard v. The Queen (1957) AC 635 ; Bharat v. The Queen (1959) AC 533 ; Lee Chun-Chuen v. The Queen (1963) AC, at pp 229, 230 . (at p661)

27. But where does the onus of proof of provocation lie by the law of New South Wales? The language of s. 23, read by itself, clearly means that it is for the jury to decide on a trial for murder whether there was provocation, but that they are not to allow it to extenuate the crime unless they find the several matters laid down by the proviso in fact existed. That is not surprising, because in 1883, and for long afterwards, indeed until Woolmington's Case in 1935, few lawyers would have questioned that at common law the proof of provocation as a mitigating defence lay on the accused. Sir Michael Foster had said that "whoever would shelter himself under the plea of provocation must prove his case to the satisfaction of his jury. The presumption of law is against him, till that presumption is repelled by contrary evidence": op cit. p. 290. We know that this is not now the law, although the history of the law of homicide left little room for doubt that formerly it was. What now are we to make of statutory provisions about provocation which when enacted assumed the law to be as Sir Michael Foster stated it? The answer is not easy. There are some cases in which statutory language has not stood in the way of the application of the modern doctrine: see R. v. Kahu (1947) NZLR 368 and Kwaku Mensah v. The King (1946) AC 83 . The statutes in question in those cases were in less explicit terms than is s. 23. But it seems that the provisions of the Criminal Code of the Gold Coast, which were in question in the latter case, must have been read as requiring the accused to establish his defence of provocation, had it not been for the strength and length of the golden thread discovered by Woolmington's Case [1935] UKHL 1; (1935) AC 462, at p 481 . Is the language of s. 23 too stubborn and intractable to yield in the same way? Is the section to be classified as one of the "statutory exceptions" to which Viscount Sankey referred? It certainly was not enacted to create an exception: quite the reverse. It was not meant to deprive the law of New South Wales of any basic principle of the common law. And, although I recognize the difficulties, I am not prepared to say that it does prevent the reception into the criminal law of New South Wales of a rule that has now been received as a fundamental principle of criminal justice in other hands whose law is founded on the common law. In the spirit of Woolmington's Case [1935] UKHL 1; (1935) AC 462 and according to the principle of the cases referred to above, I think we should regard s. 23 as laying down the conditions necessary for positively reducing murder to manslaughter by reason of provocation; but as not touching the negative position when the jury are in doubt whether the crime of murder, which means, and always has meant, an unprovoked killing, is established. If it be that I am wrong in this view, then I hope the section will be repealed and recast in a form in harmony with the modern views of responsibility for homicide that prevail elsewhere. But, whether I be right or wrong as to the effect of s. 23 on the onus of proof, matters not to my conclusion that this case was one in which the question of provocation should have been submitted to the jury, and that they should have been directed as to the several matters set out in s. 23, which would arise for their consideration as questions of fact. Taking these in order: (at p662)

28. The conduct of the dead man during the hour or two before he met his death could be thought by a jury to be "reasonably calculated to deprive an ordinary person of the power of self-control". He had ignored the complaints of the accused against his attentions to his wife and had derided his remonstrances against his apparent plan to seduce her from him; he had taunted him by lascivious boasting of the enjoyment he expected to have by adulterous intercourse with her; he had jeered at his small stature and physical inability to prevent him taking his wife away; and then he had taken her off on his bicycle, she going with him despite the entreaties of the accused and of the eldest of the six children whom she was deserting. A jury could find too the next requirement, namely that this conduct did in fact deprive the accused of the power of self-control. They would have to consider all the circumstances. The accused was emotional, weeping, filled with resentment, in a state of mind in which he could bear no more and anything more might throw him into a transport of passion. (at p662)

29. The statute next requires that the act causing death be done "suddenly, in the heat of passion without intent to take life". This is not quite the same thing as saying that it must be done in the heat of a sudden passion. It is not, I think, required either by the statute or at common law that the first beginning of emotion must not be earlier than just before the fatal act; nor do I think it is necessary that the provocative conduct should be a single isolated act. It may be an episode in a series of incidents, an episode which, because of what had gone before, proved to be beyond endurance and led to an onset of ungovernable passion. In this case the act causing death was the stabbing and cutting of the throat of the victim. Was there any evidence that this act was done suddenly in the heat of passion in the relevant sense? I think there was. It was for the jury to say what conclusion they would draw from it. There are cases in the books in which an accused, after some provocation, went off to get a knife or other weapon and then returned with it and killed. That was not treated as necessarily preventing reliance upon the provocation. All the circumstances must be considered. General statements about passion having time to cool do not, I think, enter much into a case such as this. It does not turn on a precise counting of the time, two hours or so, over which the episode of the afternoon extended. During the whole of that time the passion and emotion of the accused were mounting, not declining; and during part of that time his resentment and distress were being aggravated by new insults and further taunts that the jury might think would make any man in that situation the more ready to lose his self-control. They might think that, to use again the words of East that I have already quoted, the conduct of the dead man "would in human frailty heat the blood to a proportionate degree of resentment, and keep it boiling to the moment of the fact". But was it open to the jury to say that the fatal act was not only done suddenly and in passion, but also without intent to take life, in the sense, as I understand it, those words bear in the statute? There was much against this. The accused, before he went in pursuit of his wife and the man whom he killed, had spoken of killing him. On catching up with them, he lost no time in actually killing him. And afterwards he told more than one person that he had meant to kill him, and that he had set out to do so. These utterances were however themselves the products of continuing emotion. In his evidence he said that he set out in his motor car with the thought only of trying to get his wife to come back; that his attack was not premeditated, but that he lost control of himself when he saw his wife and the man together on the road; that his actions were done in a fury that then came over him and without his really knowing what he was doing. A jury might not accept this. They might think that what he did, although done in a time of great tribulation, was not done of a spontaneous impulse, but wilfully and vengefully and after some deliberation. But these it seems to me were the very matters that the jury had to consider. That their conclusion may have been right is immaterial if the trial miscarried because they were not rightly directed as to what was the question they had to consider. I would recall what Fullagar J. said in Mraz v. The Queen [1955] HCA 59; (1955) 93 CLR 493 . He spoke of "the long tradition of the English criminal law that every accused person is entitled to a trial in which the relevant law is correctly explained to the jury and the rules of procedure and evidence are strictly followed. If there is any failure in any of these respects, and the appellant may thereby have lost a chance which was fairly open to him of being acquitted, there is, in the eye of the law, a miscarriage of justice. Justice has miscarried in such cases, because the appellant has not had what the law says that he shall have, and justice is justice according to law. It is for the Crown to make it clear that there is no real possibility that justice has miscarried" (1955) 93 CLR, at p 514 . In this case, far from the Crown doing that, the Solicitor-General has appeared before us to say that there is a very real possibility that justice, justice according to law, has miscarried. It is not that the trial was not carefully and fairly conducted by the learned trial judge. It was. But in a difficult situation, he, mistakenly as I see it, withdrew from the jury's consideration a matter they should have been directed to consider. (at p664)

30. I would grant special leave to appeal, allow the appeal and order a new trial. (at p664)

ORDER