Criminal Law—Murder—Provocation—Wrongful act or insult such as to deprive ordinary person of self-control—Role of ordinary person test—Regaining self-control—Relevance of ordinary person test.
Headnote
At his trial for murder there was evidence that the accused believed his son-in-law had acted violently towards the accused's daughter, had caused financial difficulties for the daughter's family by excessive gambling, and had recently left the daughter taking property belonging to her. The accused sought out the son-in-law and said to him "Can't you do something better than what you are doing?" The son-in-law told the accused to "piss off", attempted to kick him, and pushed or shoved him causing the accused to injure his arm. The accused then got a knife from his car and a struggle ensued on the driver's side of the car in the course of which the son-in-law was stabbed. The son-in-law broke away and went to the other side of the car where he collapsed on the footpath. The accused followed him there and stabbed him again. The son-in-law died from a stab wound to the heart, but it was unclear whether the fatal wound had been inflicted during the struggle or while he was on the footpath. The judge left the question of provocation to the jury in relation to the struggle but not in relation to the incident on the footpath.
Held, by Brennan, Deane, Dawson and Gaudron JJ, McHugh J dissenting, that the judge had wrongly withdrawn provocation from the jury in relation to the incident on the footpath.
Per Brennan, Deane, Dawson and Gaudron JJ. In the observation in Holmes v Director of Public Prosecutions (1946) AC 588 at 597, that the wrongful act or insult must have been capable of provoking an ordinary person not merely to some retaliation but "to the degree and method and continuance of violence which produces the death", the word "continuance" was not intended to indicate more than that the conduct in question must have been capable of provoking an ordinary person to retaliation of the like nature and extent as that of the accused. The question is whether the provocation, measured in gravity by reference to the relevant characteristics of the accused, could have caused an ordinary person to form an intention to kill or do grievous bodily harm and to act upon that intention, as the deceased did, so as to give effect to it. The associated question whether, in the sequence of events, an accused, having lost his self-control, had regained it so that the continued infliction of injury was in fact no longer provoked, is not a question to be answered by reference to the ordinary person. It is to be answered by reference to the conduct of the accused himself and to common experience of human affairs.
[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
Masciantonio v The Queen [1995] HCA 67
Case
[1995] HCA 67
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by the applicant, Masciantonio, against his conviction for murder. The applicant had been found guilty of murder by a jury in the Supreme Court of South Australia and subsequently appealed to the Full Court of the Supreme Court of South Australia, which dismissed his appeal. The High Court then granted special leave to appeal.
The central legal issue before the High Court was whether the trial judge had erred in law by failing to direct the jury adequately on the defence of provocation. Specifically, the court had to determine if the evidence presented at trial was capable of supporting a finding that the applicant had acted under a sudden or temporary loss of self-control induced by provocation, thereby reducing the charge from murder to manslaughter.
The High Court, in a joint judgment, held that the trial judge's directions on provocation were insufficient. Their Honours reasoned that the evidence, including the applicant's testimony about the deceased's conduct and words, was capable of supporting a finding that the applicant had lost self-control. The legal principle applied was that where there is evidence capable of supporting a defence, even if it is not strongly pressed by the defence, the trial judge has a duty to direct the jury on that defence. The court found that the jury had not been properly instructed on the elements of provocation, particularly the requirement of a sudden or temporary loss of self-control, and that this omission amounted to a miscarriage of justice.
Consequently, the High Court allowed the appeal, quashed the conviction for murder, and ordered a new trial on the charge of murder.