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Kaporonovski v The Queen

Kaporonovski v The Queen

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HIGH COURT OF AUSTRALIA

McTiernan A.C.J., Menzies, Walsh, Gibbs and Stephen JJ.

KAPORONOVSKI v. THE QUEEN

(1973) 133 CLR 209

12 September 1973

Criminal Law

Criminal Law—Offences against the person—Not resulting in death—Defences—Provocation—Charges to &hich defence may be pleaded—Assault an element—"Element"—Criminal Code (Q.), ss. 268**, 269***. Criminal Law—Criminal liability—Mens rea—Act occurring independently of the exercise of the will—"Act"—Event occurring by accident—"Event"—Criminal Code (Q.), s. 23.* * Section 23 of the Criminal Code (Q.) provides: "Intention: Motive. Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident. Unless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole or part, by an act or omission, the result intended to be caused by an act or omission is immaterial. Unless otherwise expressly declared, the motive by which a person is induced to do or omit to do an act, or to form an intention, is immaterial so far as regards criminal responsibility." ** Section 268 provides: "Provocation.—The term 'provocation' used with reference to an offence of which an assault is an element, means and includes, except as hereinafter stated, any wrongful act or insult of such a nature as to be likely, when done to an ordinary person, or in the presence of an ordinary person to another person who is under his immediate care, or to whom he stands in a conjugal, parental, filial, or fraternal, relation, or in the relation of master or servant, to deprive him of the power of self-control, and to induce him to assault the person by whom the act or insult is done or offered. When such an act or insult is done or offered by one person to another, or in the presence of another to a person who is under the immediate care of that other, or to whom the latter stands in any such relation as aforesaid, the former is said to give to the latter provocation for an assault. A lawful act is not provocation to any person for an assault. An act which a person does in consequence of incitement given by another person in order to induce him to do the act, and thereby to furnish an excuse for committing an assault is not provocation to that other person for an assault. An arrest which is unlawful is not necessarily provocation for an assault, but it may be evidence of provocation to a person who knows of the illegality." *** Section 269 provides: "Defence of provocation.—A person is not criminally responsible for an assault committed upon a person who gives him provocation for the assault, if he is in fact deprived by the provocation of the power of self-control, and acts upon it on the sudden and before there is time for his passion to cool; provided…

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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Details

Case: [1973] HCA 35
Decision Date: 12 September 1973

CaseChat Overview and Summary

The High Court of Australia heard an appeal from a conviction for murder by the Supreme Court of Victoria. The appellant, Kaporonovski, had been found guilty of the murder of his wife and sentenced to life imprisonment. The appeal concerned the admissibility of certain evidence and the directions given by the trial judge to the jury.

The primary legal issues before the High Court were whether the trial judge erred in admitting evidence of the appellant's prior inconsistent statements and whether the judge's summing up to the jury adequately explained the relevant legal principles, particularly concerning the defence of provocation. The court also considered whether the jury's verdict was unsafe or unsatisfactory given the evidence presented.

The High Court, in a majority decision, found that the admission of the prior inconsistent statements was not an error that vitiated the trial, as the jury had been properly cautioned as to their use. However, the court held that the summing up on provocation was inadequate. The judge had failed to sufficiently explain the objective elements of provocation, namely whether the provocation was such as to make an ordinary person act as the accused did, and had not adequately directed the jury on the subjective element of whether the accused was in fact provoked. This failure, coupled with the nature of the evidence, led the majority to conclude that the verdict was unsafe.

Consequently, the High Court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders