CATCHWORDS Criminal Law—Murder—Provocation—Notional ordinary person placed "in the position of the accused"—Whether knowledge of sexual abuse of siblings was so subjective and particular to the accused that it ought not to have been considered in assessing the capacity of unwanted sexual advances to provoke an ordinary person to form an intention to kill—Whether jury should have been addressed on the heightened significance of the deceased's conduct towards the accused—Relevance of the homosexual nature of the sexual advance. Crimes Act 1900 (NSW), s 23.
Orders
ORDER
1.Appeal allowed.
2. Order that the order of the Court of Criminal Appeal of New South Wales be set aside. In lieu thereof order that the appeal to that Court be allowed, that the conviction be quashed and that a new trial be had.
Decision
BRENNAN CJ. The facts of this case, the relevant rulings at the trial and the reasons for judgment of the Court of Criminal Appeal are stated by McHugh J in terms which I gratefully adopt. In summary, the appellant's case at the trial was that he was so provoked by the conduct of the deceased that he lost control of himself and killed the deceased. The "defence" of provocation called for consideration of s 23 of the Crimes Act1900 (NSW). The relevant provisions of that section read as follows:
" (1) Where, on the trial of a person for murder, it appears that the act or omission causing death was an act done or omitted under provocation and, but for this subsection and the provocation, the jury would have found the accused guilty of murder, the jury shall acquit the accused of murder and find the accused guilty of manslaughter.
(2) For the purposes of subsection (1), an act or omission causing death is an act done or omitted under provocation where:
(a) the act or omission is the result of a loss of self-control on the part of the accused that was induced by any conduct of the deceased (including grossly insulting words or gestures) towards or affecting the accused; and
(b) that conduct of the deceased was such as could have induced an ordinary person in the position of the accused to have so far lost self-control as to have formed an intent to kill, or to inflict grievous bodily harm upon, the deceased,
whether that conduct of the deceased occurred immediately before the act or omission causing death or at any previous time.
..."
The meaning of s 23
Paragraph (a) of sub-s (2) requires a causal relationship between the act or omission of an accused which causes the death of the deceased and the conduct of the deceased towards or affecting the accused. The nexus between these two is the loss of self-control on the part of the…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Green v The Queen [1997] HCA 50
Case
[1997] HCA 50
Decision Date
CaseChat Overview and Summary
In *Green v The Queen*, the High Court of Australia considered an appeal against a conviction for murder. The central issue revolved around the defence of provocation and how the characteristics of the accused should be assessed when applying the objective limb of that defence. Specifically, the Court grappled with whether certain subjective knowledge held by the accused, relating to the sexual abuse of his siblings, was so peculiar to him that it should be excluded from the consideration of an "ordinary person" in his position when evaluating the provocative nature of unwanted sexual advances. The homosexual nature of the sexual advance was also a relevant consideration in this context.
The High Court was required to determine whether the trial judge had erred in failing to adequately direct the jury on the significance of the deceased's conduct towards the accused, particularly in light of the accused's subjective knowledge. This involved an examination of the proper application of section 23 of the *Crimes Act 1900* (NSW), which codifies the defence of provocation. The Court had to consider the interplay between the subjective elements of provocation (the accused's state of mind) and the objective element (whether an ordinary person, in the position of the accused, would have reacted in the same way).
The Court reasoned that the jury directions were insufficient because they did not properly explain how the accused's subjective knowledge, including his awareness of the sexual abuse of his siblings and the homosexual nature of the advance, could be relevant to the objective assessment of provocation. The majority held that the "ordinary person" test in provocation requires the jury to consider all the circumstances of the accused, including his personal characteristics and knowledge, provided they are not so extreme or peculiar as to render the hypothetical ordinary person entirely different from the accused. The Court concluded that the jury should have been directed that the deceased's conduct, viewed through the lens of the accused's particular circumstances, might have been sufficient to cause an ordinary person to lose self-control.
Consequently, the High Court allowed the appeal, set aside the order of the Court of Criminal Appeal of New South Wales, and ordered that the conviction be quashed and a new trial be had.
Orders
Orders of the court
1.Appeal allowed.
2. Order that the order of the Court of Criminal Appeal of New South Wales be set aside. In lieu thereof order that the appeal to that Court be allowed, that the conviction be quashed and that a new trial be had.