Provocation exists in the criminal law primarily as a factor in mitigation on sentence (s21A(3)(c) of the Crimes (Sentencing Procedure) Act 1999). However, on a charge of murder, provocation was a basis on which an act that would otherwise have been murder could be reduced to manslaughter.
A number of the authorities below pre-date that change, but are still applicable to the question of whether provocation should be left to the jury, and the basis on which a jury should consider whether it is made out.
In 2014 the Crimes Amendment (Provocation) Act 2014 was passed. This act applied to any murder allegedly committed after 13 June 2014. This act introduced the concept of “extreme provocation”.
Now, a murder is reduced to manslaughter if:
(a) the accused acted in response to conduct of the deceased towards or affecting the accused; and
(b) the conduct of the deceased is a serious indictable offence (punishable by 5 years imprisonment or more); and
(c) the deceased’s conduct caused the accused to lose self-control; and
(d) the deceased’s conduct could have caused an ordinary person to lose self-control to the extent of intending to kill or inflict grievous bodily harm on the deceased.
It is of particular note that the test at (d) now refers to the objective test of the “ordinary person”, as opposed to “could have induced an ordinary person in the position of the accused”
Moffa v R  HCA 14
“Although the onus of establishing that the killing was not provoked lies on the Crown, it is a question for the decision of the judge whether there is evidence upon which a jury could reasonably return a verdict of manslaughter on the ground of provocation, and it is established that a trial judge should withdraw an issue of provocation from the jury if the evidence could not reasonably support the conclusion that the provocation was of such a character as could have deprived a reasonable person of the power of self-control to such an extent as to lead him to do what the accused did…”
“Everything that the deceased said and did on 21st August must therefore be considered in deciding whether there was provocation.”
R v Quartly (1986) 11 NSWLR 332
“The provocative incident must be one which directly “involves” the accused and the deceased, even though the actual element of provocation or affront in the provocation may not be directed intentionally or specifically against the accused.”
Van Den Hoek v R  HCA 76
“It has been repeatedly held that if there is material on which a jury, acting reasonably, could find manslaughter as a result of provocation, it is the duty of the trial judge to put the issue to the jury, even if there is no suggestion at the trial that the issue should be put to the jury”
R v Peisley (1990) 54 A Crim R 42
“More is required than anger or loss of temper or building resentment. There must, in my view, be a loss of self control which I understand to include a state in which the blood is boiling or a state of fear or terror, in either case, to the point where reason has been temporarily suspended.”
Stingel v R  HCA 61
“It is to pose for the jury the question whether, in all the circumstances of the case, the wrongful act or insult, with its implications and gravity identified and assessed in the manner we have indicated, was of such a nature that it could or might cause an ordinary person (or, when appropriate, an ordinary person of the age of the accused), that is to say, a hypothetical or imaginary person with powers of self-control within the limits of what is ordinary (for a person of that age), to do what the accused did.”
Chhay v R (1994) 72 A Crim R 1
“What the law still requires is that it should be explained to the jury that the key concept for them to bear in mind, whether for the purposes of the subjective or objective aspect of the problem, is that of a killing which results from a loss of self-control.”
“Emotions such as hatred, resentment, fear, or the desire for revenge, which commonly follow ill-treatment, and sometimes provide a motive for killing, do not of themselves involve a loss of self-control although on some occasions, and in some circumstances, they may lead to it”
Lindsay v The Queen  HCA 16
“The question for the trial judge and the appellate court is the same: whether "on the version of events most favourable to the accused which is suggested by material in the evidence, a jury acting reasonably might fail to be satisfied beyond reasonable doubt that the killing was unprovoked in the relevant sense".
In Stingel, the Court disavowed that the threshold test blurs the functions of judge and jury: within the area in which it is open to find that the prosecution has failed to negative provocation, the question is for the jury alone. Importantly, the Court emphasised the "limited scope" of the threshold question of law and the need to exercise caution before declining to leave provocation.”
R v Turnbull (No. 25)  NSWSC 831
“It is clear that the removal of the words “in the position of the accused”, as part of the 2014 amendments to s.23, operate to narrow significantly the “ordinary person” test for the purpose of extreme provocation.”
“The attributes of the Accused, which could be taken into account in the past by operation of the words “in the position of the accused”, should now be placed to one side. What remains for consideration is whether the “ordinary person” test should take into account the age (in the sense of immaturity) of an accused person as being an attribute of the ordinary person”
Rogers v R  NSWCCA 61
“A consequence of this amendment, which departs significantly from the common law, is that the ordinary person test now contained in s.23(2)(d) assumes a calm ordinary person and that it is not relevant that the accused person was particularly sensitive to the situation or was experiencing a depressive disorder. “
Barwick CJ (would allow the appeal as provocation should have been left to the jury)
2. I feel bound to agree with my brother Gibbs' conclusion that if nothing more had been established by the applicant by way of provocation than mere words and if those words were not, to use the language of Viscount Simon in Holmes v. Director of Public Prosecutions (1946) AC 588 of a violently provocative character, the onus upon the Crown of establishing beyond any reasonable doubt that the killing of the deceased's wife was unprovoked did not specifically arise. In that situation, the trial judge would have been in error in leaving to the jury a case of provocation and, consequently, errors made in the summing up in relation to that issue, had there been occasion to place a case of provocation before the jury, would not have required the quashing of the applicant's conviction. Accordingly, on that footing, special leave should be refused.
3. But I am unable to agree that the statement of the applicant at his trial disclosed no more than a case of mere words by way of provocation or, if there were no provocation but by mere words, that those words could not be said to be of a violently provocative character. Whilst I agree that it has long been accepted that a confession of adultery, even if unexpected and suddenly made, can never afford ground for the conclusion that an ordinary man would thereby be led to lose his self-control to the point of forming an intent to murder or to do grievous bodily harm, I must say that circumstances do alter cases and that such an unqualified rule is hardly consonant with the "benignity of the law" in its concession to "human infirmity": Foster, Discourse on Homicide, 2nd ed. (1776), p. 255
5. The applicant's account of the critical events of the morning of 21st August, the day of the death of the deceased, is set out in the reasons for judgment to which I have referred. The totality of the deceased's conduct on that occasion, according to that account, was that there was vituperative and scornful rejection of the applicant's connubial advances, a contemptuous denial of any continuing affection, a proclamation of finality in the termination of their relationship coupled with an expression of pleasure in having had intercourse promiscuously with neighbouring men. This statement of enjoyment in that course of conduct might reasonably be thought, particularly if coupled with the manner of her rejection of the applicant, to contain an assertion, contemptuously expressed by the deceased, of sexual inadequacy on the part of the applicant. Whilst in themselves small matters, the threat of physical violence to reinforce her rejection of him, the throwing of the telephone as an expression of contempt and the use made of the nude photographs, form part of the whole situation. To describe that situation as consisting merely of words is not, in my opinion, to reflect the reality of the total scene. I am of opinion that a jury would be entitled to view the situation in its entirety as I have briefly described it, including the implied taunt of the applicant's incapacity sexually to satisfy the deceased as she had found other men could. If they took that view, it was open to them to conclude that an ordinary man, placed as was the applicant, would so far lose his self-control as to form an intention at least to do grievous bodily harm to his wife. Whether they would or would not take such a view of the situation would essentially be a matter for them. They are credited with a knowledge of how the ordinary man would react in such a situation. Many might think that they should not draw any such conclusion. But there are limits to the control of such a factual situation which the court can exercise. If, as I think, the situation was not composed of mere words of a not violently provocative character, the court cannot refuse to allow the tribunal of fact to decide the matter unless it is quite clear that no reasonable person could possibly conclude that, in the situation most favourably viewed from the standpoint of the accused, an ordinary man could have so far lost his self-control as to form an intent at least to do grievous bodily harm to his wife. With every respect to those of a different opinion, I cannot think that the trial judge would have been justified in this case in refusing to leave to the jury the question of provocation. In particular and with due respect to the views expressed in the Supreme Court of South Australia, I do not think that it can properly be said that it was not reasonably possible to conclude that, in the total situation described by the applicant, an ordinary man might so far lose his self-control as to form at least an intent to do his wife grievous bodily harm. As I have said, whether it should be concluded that an ordinary man would do so is a question exclusively for the jury, however much a court may be inclined to think that a jury should not do so. Accordingly, it was not an error to place that matter before them.
12. In making these observations upon the summing up, I am not unmindful of the considerable difficulty faced by a trial judge in ensuring, on the one hand, that the onus is properly expressed and, on the other, that the jury are assisted in their difficult task of examining the facts in relation to each necessary ingredient of operative provocation. But, allowing for the difficulty, I am clearly of opinion that this summing up failed properly to instruct the jury as to the onus of proof, if the possibility of provocation reasonably appeared. For this reason, being of the view that provocation was open upon the facts of the case, the conviction for murder cannot stand.
Gibbs J (would refuse special leave)
2. At the trial the applicant did not dispute that he had killed his wife. She died as a result of injuries received when, using considerable force, he struck her a number of blows to the head and neck with a piece of iron piping. His case was that the killing was provoked and that the proper verdict was guilty of manslaughter. On the application before us it was conceded that on the evidence it was open to the jury to find the applicant guilty of murder. It was, however, submitted that the learned trial judge (Mitchell J.) had misdirected the jury, and that for that reason there had been a miscarriage of justice.
4. It is now well settled that at common law homicide will not be extenuated to manslaughter by reason of the fact that the act which caused death was done in the heat of passion, involving loss of self-control, caused by provocation, unless the provocation was sufficient to make a reasonable person do what the accused did. In considering a question of provocation, it is necessary to apply both a subjective and an objective test - did the provocation in fact cause the accused to lose his power of self-control, and could a reasonable person so provoked have lost his self-control and acted as the accused did? I have throughout this judgment referred to a "reasonable person", in conformity with the usage of many of the authorities, but in this context a "reasonable person" obviously does not mean one who acts reasonably, but one who has reasonable powers of self-control, and the expression "ordinary person" may be preferable. Although the onus of establishing that the killing was not provoked lies on the Crown, it is a question for the decision of the judge whether there is evidence upon which a jury could reasonably return a verdict of manslaughter on the ground of provocation, and it is established that a trial judge should withdraw an issue of provocation from the jury if the evidence could not reasonably support the conclusion that the provocation was of such a character as could have deprived a reasonable person of the power of self-control to such an extent as to lead him to do what the accused did…
6. The statement made by the applicant suggests that it was the fact that the deceased threw the telephone at him that finally caused him to lose control. There is no evidence that the telephone hit the applicant or that the deceased offered him any other violence. However, it is no doubt right to infer that the throwing of the telephone was only the last straw that caused the applicant's control to collapse. In any case, in deciding whether there is sufficient evidence of provocation, it is necessary to have regard to the whole of the deceased person's conduct at the relevant time, for acts and words which considered separately could not amount to provocation may in combination, or cumulatively, be enough to cause a reasonable person to lose his self-control and resort to the kind of violence that caused the death. Everything that the deceased said and did on 21st August must therefore be considered in deciding whether there was provocation.
8. In the light of this authority, I find it impossible to hold that the evidence in the present case raised an issue of provocation fit to be considered by a jury. It was not open to a jury to find that a reasonable man could have been provoked by the words and actions of the deceased to such an extent as to use the violence to which the applicant resorted. The question has to be decided in the light of contemporary conditions and attitudes, for what might be provocative in one age might be regarded with comparative equanimity in another, and a greater measure of self-control is expected as society develops. The words of the deceased on 21st August, although calculated to disturb or enrage, were not of that "violently provocative" character which might lead a reasonable man to lose his self-control and resort to violence causing death - a character which words alone would possess only in an extreme and exceptional case. According to the applicant's statement (which it must be assumed would be accepted), the deceased repeated, what she had previously been saying, that she did not love her husband and intended to leave him; she admitted that she had promiscuously committed adultery, and she uttered some vulgar abuse. The confession of adultery may have been the more disturbing because of the production of the photographs, but the jury could not have disregarded the fact that the applicant himself had taken some of those photographs. The only act of violence committed by the deceased was the throwing of the telephone, which was not likely to cause serious harm or apprehension to the applicant, and so far as the evidence discloses did not do so. Accepting the view of the facts most favourable to the applicant, the words and acts of the deceased were not such as could have caused a reasonable man to act as the applicant did.
Stephen J (would allow the appeal as provocation should have been left to the jury)
7. The deceased in this case, the jury might believe, did not simply admit to an adulterous relationship, she boasted of wholesale promiscuity with the men in the suburban street where she and her husband lived and had brought up their family; she showed no contrition although, according to the applicant, she was a much loved and well treated wife and the mother of his children; she combined her boast with abuse and with some show of violence; all this despite night-long and abject avowals of devotion by the applicant. If the jury were to accept this version of the matter I cannot for myself say that they might not properly conclude that an ordinary man might be so provoked as to lose self-control and act as the applicant said he did.
8. It follows from this conclusion that provocation was an issue properly left to the jury. In these circumstances, as I have already said, I can only regard the charge to the jury as defective and this for the reasons expressed in the judgment of the Chief Justice.
Mason J (would allow the appeal as provocation should have been left to the jury)
4. There is no absolute rule against words founding a case of provocation. The existence of such an absolute rule would draw an arbitrary distinction between words and conduct which is insupportable in logic. No doubt provocative acts justifying the reduction of murder to manslaughter are more readily imagined and more frequently encountered than provocative words which justify the same result. Violent acts, rather than violent words, are more likely to induce an ordinary person to lose his self-control. And a case of provocation by words may be more easily invented than a case of provocation by conduct, particularly when the victim was the wife of the accused. There is, therefore, an element of public policy as well as common sense in requiring the close scrutiny of claims of provocation founded in words, rather than conduct.
8. The questions for the jury here, then, were whether the acts relied upon by the applicant were reasonably calculated to deprive an ordinary man of the power of self-control, whether they in fact did so deprive the applicant and whether he continued to be so deprived at the time he struck the deceased with the pipe. The question for us is whether it can be said that no reasonable man could answer these questions favourably to the applicant in light of the account of the relevant events given by him at the trial. For my part, I feel some diffidence in predicting with assurance how an ordinary man placed in the applicant's situation might react if he were confronted with the occurrences on which the applicant relied. I am not prepared to say that no reasonable man could conclude that an ordinary man would be so deprived of his power of self-control by what occurred as to form an intention to kill or do grievous bodily harm to his wife.
10. Accordingly, the issue of provocation was a proper one to go to the jury. Having arrived at this conclusion I agree with the Chief Justice in thinking that the summing up was defective and that in other circumstances a new trial should be ordered. However, it is appropriate in this case that in lieu of an order for a new trial a conviction for manslaughter should be substituted for the conviction for murder. The Solicitor-General for South Australia has raised no objection to our taking this course in the event that the Court finds the summing up to be defective.
Murphy J (would allow the appeal as provocation should have been left to the jury)
11. The objective test is not suitable even for a superficially homogeneous society, and the more heterogeneous our society becomes, the more inappropriate the test is. Behaviour is influenced by age, sex, ethnic origin, climatic and other living conditions, biorhythms, education, occupation and, above all, individual differences. It is impossible to construct a model of a reasonable or ordinary South Australian for the purpose of assessing emotional flashpoint, loss of self-control and capacity to kill under particular circumstances. In the Northern Territory Supreme Court, Kriewaldt J. refused to apply the test to a tribal aborigine and used the standard of the accused's tribe (see Colin Howard, "What Colour is the 'Reasonable Man'?" (1961) Criminal Law Review, p. 41). The Judicial Committee of the Privy Council stated in Kwaku Mensah v. The King (1946) AC 83, at p 93 that the test for provocation was that of "the ordinary West African villager" and that "on just such questions...the knowledge and commonsense of a local jury are invaluable" (see also Rankin (1966) 60 QJPR 128 ). The same considerations apply to cultural sub-groups such as migrants. The objective test should not be modified by establishing different standards for different groups in society. This would result in unequal treatment.
16. The trial judge was correct to leave the question of provocation with the jury. Even if the objective test were applied, the accused's statement could be regarded by the jury as amounting to: "I am an ordinary reasonable man. I killed my wife only because she provoked me so much that I lost self-control." This is evidentiary material that, if accepted, satisfies the objective test. If the judge decided that no ordinary or reasonable man could (or would) have so acted, she would be in effect forming an opinion that the accused is not an ordinary or reasonable man, and treating this opinion as conclusive. To take away the issue of provocation in these circumstances would be to usurp the function of the jury.
20. The conviction for murder cannot stand. The applicant's case is that he was guilty of manslaughter only. Special leave to appeal should be granted. The appeal should be upheld and the conviction for murder set aside and replaced by a conviction for manslaughter.
On 30 May 1985, the appellant came before Roden J and a jury of twelve at the Central Criminal Court jointly charged, with John Andrew Taylor, as follows: “That they, on 2 April 1984, at West Ryde, did murder
Raymond John Barrass.”
The only ground of appeal put forward in this appeal against the conviction is that his Honour was in error in not leaving the defence of provocation to the jury. The grounds of appeal are expressed in the following
(a) His Honour erred in declining to leave provocation to the jury; and
(b) His Honour erred in holding that hearsay provocation is not available as a defence in New South Wales.
At 333 and 334
Her evidence as to what occurred on the previous Saturday night was that she had had a fight with Barrass at the railway station, that he wanted her to go back to his place and she said no, and that she had refused to have sex with him on that occasion.
A witness, Richard Simons, gave evidence that he was on the platform and he went into the toilet and as he was coming out he “bumped into a guy I recognised in the pub earlier and there was a girl sitting opposite”. He said that after a couple of minutes as he was leaving the station, he heard a bang and looked back and the man he had earlier seen “hit the deck” and then he saw another man who had also been in the hotel — and whom he identified as the appellant — with a sawn-off rifle in his hand holding it pointing down and he heard that person say: “You've got yours now, you bastard.” He saw the man, the appellant, walk through the waiting room and then come back in a few seconds, look at the body, and then walk out again.
The appellant, it can be seen, has put forward the defence that he was so affected by liquor that he had no intention to kill, if he did kill, and the matter went to the jury substantially on that basis. However, it was put to his Honour by counsel for the appellant, that there was evidence of provocation but his Honour declined to leave the question of provocation to the jury.
If there is evidence of provocation the defence — and I shall refer to it as that — must be left, and that now means that his Honour must give the appropriate directions to the jury and, in addition, direct that the onus is upon the Crown to prove beyond reasonable doubt that the killing was not a killing under provocation, as required by s 23(4).
The view which I have expressed that provocation requires a reaction by an accused to conduct of the deceased which occurs in his sight or hearing, appears to have been accepted in the common law from the very earliest times. An examination of the cases in the reports dealing with provocation — and they are multitudinous — will indicate that in all but a couple of instances the matter dealt with has been one in which there has been conduct by the deceased in the appellant's presence. That has been the “provocative incident” relied upon in all the cases. The provocative incident must be one which directly “involves” the accused and the deceased, even though the actual element of provocation or affront in the provocation may not be directed intentionally or specifically against the accused.
In the course of argument Mr Hidden QC sought to contend that the words “affecting the accused” in s 23(2)(a) were to be read as though they gave to the whole expression “conduct affecting the accused” a general meaning so as to permit any incident or event which “affected him” in a general sense, to be treated as a provocative incident and thus to permit hearsay provocation to be a foundation for the defence of provocation. In my view, there is not to be attributed to the expression “affecting the accused” in s 23(2)(a) the consequence that the common law as to the nature of the provocative incident in provocation has been altered. The words are designed to cover the case where the provocation is not to be regarded as directed towards the accused person but where it can nonetheless be said to “affect” him. The common law recognised such cases, for example, finding one's wife being raped (1 Hale PC 486; R v Millward (1931) 23 Cr App R 119); or an unnatural offence being committed on one's son (R v Fisher); or a member of one's family being assaulted (R v Harrington (1866) 10 Cox CC 370). As to adultery: see 1 Hale's Pleas of the Crown (at 486); R v Manning (1671) T Raym 212 and R v Pearson (1835) 2 Lew CC 216; 168 ER 133. The provocative incident relied upon in such cases must still be conduct of the deceased seen or heard by the accused. For a discussion on insulting words as provocation: see R v Tsigos [1964-5] NSWR 1607.
I agree with the order proposed by the presiding judge for the reasons which he has given.
I also agree
Gibbs CJ, Wilson, Brennan and Deane JJ (would allow the appeal)
1. The applicant, Fredrika Margaretha Antonia Van Den Hoek, was indicted on a charge that on 23 February 1985 she wilfully murdered one Adelbertus Stephanus Van Den Hoek. After a trial in the Supreme Court of Western Australia the jury found her not guilty of wilful murder but guilty of murder. She appealed to the Court of Criminal Appeal on a number of grounds but her appeal was dismissed by a majority (Wallace and Kennedy JJ.; Burt C.J. dissenting). She now seeks special leave to appeal to this Court.
6. At the trial counsel for the applicant informed the learned trial judge that the only issues were intention and self-defence. The learned trial judge directed the jury that there was "nothing in the evidence in the present case to sustain a plea of provocation". The applicant herself did not in her evidence suggest that she had lost her self-control. She did say that she was terrified and acted as she did to defend herself.
8. The question that then arises is whether there was evidence which, if believed, might reasonably have led the jury to return a verdict of manslaughter on the ground of provocation. With all respect to the views of the majority of the Court of Criminal Appeal in the present case that question should be answered in the affirmative. The jury were entitled to accept the evidence of the applicant, in its material respects, notwithstanding that on some points there was a conflict between her evidence and other evidence. If they did accept the material parts of her evidence they were entitled to form the view that the conduct of Mr Van Den Hoek was provocative and that by reason of that provocation the applicant was driven to lose her self-control and in consequence to do the acts that resulted in the death. They might further not unreasonably have concluded that a reasonable (or ordinary) woman might, in consequence of the provocation, be so rendered liable to loss of control as to do what the applicant did and that the applicant's actions were not disproportionate to the provocation. These were all questions for the jury and it is trite to say that in a case of provocation all that the defence need do is to point to material which might induce a reasonable doubt. Wallace J. felt that consideration of the question of provocation would be a mere exercise in speculation, and Kennedy J. said that he was unable to accept that there was sufficient evidence that the acts of Mr Van Den Hoek caused loss of self-control on the part of the applicant. However if the applicant's evidence was accepted the conduct of Mr Van Den Hoek was clearly provocative, and there was strong evidence that she was in an hysterical or agitated condition and her very actions bespoke loss of self-control.
9. We have concluded that the case is one in which the question of provocation should have been left to the jury and that the failure to leave it constituted a miscarriage of justice. In the event that the applicant was successful, counsel for the Crown submitted that we should order a new trial rather than substitute a verdict of manslaughter, and since it would of course be open to a jury entirely to disbelieve the applicant, there must be a new trial on a charge of murder.
Mason J (would allow the appeal)
16. When all this is understood, there can now be no convincing reason for confining the doctrine to loss of self-control arising from anger or resentment. The doctrine naturally extends to a sudden and temporary loss of self-control due to an emotion such as fear or panic as well as anger or resentment. This extension of the defence conforms not only to the conceptual relationship between the doctrine and the mental elements in the offences of murder and manslaughter but also to the emphasis given in modern judgments to a sudden and temporary loss of self-control as the central element in the doctrine.
20. The failure of an accused person to testify to loss of self-control is not fatal to a defence of provocation or a case in which self-defence is raised. Because the admission of loss of self-control is bound to weaken, if not destroy, self-defence, the law does not place the accused in a dilemma (Lee Chun-Chuen, at pp.232-233). The jury's capacity to infer loss of self-control from appropriate facts is underscored by the comment of Lord Devlin, speaking for the Judicial Committee, in Lee Chun-Chuen (at p.233) that a jury would be entitled to infer loss of self-control from facts suggesting a possible loss of self-control, even if the accused expressly denied loss of temper, especially when the nature of the main defence would account for the falsehood. Of course, an admission of fear is not as antagonistic to self-defence as an admission of anger. Nonetheless the point remains that the absence of direct evidence of loss of self-control is explicable when self-defence is an issue with the result that the jury is entitled to infer it in the absence of direct evidence.
21. It has been repeatedly held that if there is material on which a jury, acting reasonably, could find manslaughter as a result of provocation, it is the duty of the trial judge to put the issue to the jury, even if there is no suggestion at the trial that the issue should be put to the jury (Parker, at p 681; Pemble v. The Queen  HCA 20; (1971) 124 CLR 107, at pp 117-118).
The appellant was, on 17 February 1989, convicted on two counts of murder. In respect of each count he was sentenced to penal servitude for life, to commence from 5 December 1987, the date of his arrest and the date on which the offences occurred.
The victims were Ivan Rixon and Roderick Forrester. For some years bad blood had existed between the appellant and Forrester who lived across the road from him, principally as a result of alleged mistreatment by Forrester of the appellant's de facto wife, Vicki Leslie, and her children. Amongst the areas of dispute were allegations that Forrester had made sexual approaches to one of the children and had supplied marihuana to another.
The issue of provocation was removed by the trial Judge and the ultimate contest centred on whether the appellant intended to shoot the two deceased. It is obvious from the jury verdict that such issue was found against the appellant. The appeal is brought on the sole ground that the issue of provocation was wrongly withdrawn from the jury.
In my view his Honour was not in error in holding that there was no evidence, in this case, fit to go to the jury, of any loss of self control. More is required than anger or loss of temper or building resentment. There must, in my view, be a loss of self control which I understand to include a state in which the blood is boiling or a state of fear or terror, in either case, to the point where reason has been temporarily suspended. See East Pleas of the Crown (1803) vol 1 at 251.
Here, it seems to me, that the evidence could not rise above a state of anger on the part of the appellant, arising out of an assessment by him that he was sick and tired of what he considered to be unreasonable conduct of Forrester and Rixon, leading to a decision to go over and give them a good scare.
In the present case, the events of 22 November and earlier could not, in my view, be regarded as having constituted reasonable evidence of provocative conduct by themselves. As a matter of human experience and common sense, their relationship and the time passed was, in my view, such that they could not reasonably have been considered as inducing any loss of self control. Their force or effect must have been considered as spent by 5 December.
As this Court pointed out in Regina v Marshall CCA 17 July 1990, before a defence dependent on a jury's assessment of the facts is left, it is necessary to see whether there can be constructed a realistic hypothesis concerning the facts proved in evidence, and the available inferences which would give rise to the possibility of the defence being a serious issue for consideration. Speculation as to a possible hypotheses or version of the facts is not enough. As in Marshall the present case seems to me to be one where the relevant hypotheses required for the defence of provocation were too far removed from the evidence, and the available inferences, to justify the issue of provocation being left.
Accordingly, I am not persuaded that any error was demonstrated by the learned trial Judge in withdrawing the issue from the consideration, and I would propose that the appeal be dismissed.
Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ
1. This is an appeal, pursuant to special leave, from a decision of the Court of Criminal Appeal of Tasmania (Nettlefold, Underwood and Wright JJ.) dismissing an appeal from the appellant's conviction of murder. The issue which the appeal raises is whether, as the Court of Criminal Appeal held, the learned trial judge was correct in ruling that the matters relied upon by the appellant as giving rise to a defence of provocation under s.160 of the Criminal Code (Tas.) ("the Code") were not capable of constituting provocation under that section with the result that that defence to the charge of murder was not left to the jury. The questions of law raised by that issue are important and of some difficulty.
3. From May until about November 1986, A and the appellant went out together on a regular basis. At that time A was a pupil at the Scottsdale High School. The relationship between them broke up, after a series of arguments, about the time when A left school. It resumed for a few days around Christmas and was then permanently terminated by A. Notwithstanding A's communicated desire not to associate with the appellant, he was and remained, to use the learned trial judge's words, "obsessed by or infatuated with" her and would not leave her alone. He frequently waited for her outside her place of employment. He followed her about and tried to talk to her. On a number of occasions when A told him she did not want to see him or talk to him, he threatened her with violence. He even threatened to kill her so that no one else could "have" her.
6. The relationship between Baxter and A came to an end in January 1988. About that time, A developed what the appellant described as "a loose relationship" with Jason Taylor. By 4 June 1988, the appellant (according to his unsworn statement at the trial) believed that Taylor was using A: "Pick her up, usually at the football club cabaret, have sex with her, and have nothing more to do with her".
9. The cabaret at the Club finished at about 1 a.m. on the Sunday. The appellant "was aware that there were several parties on afterwards". He went to one of them. He had seen Taylor leave the Club with A and noticed that they were not at the party. He remained at that party for about fifteen minutes and then "went for a drive down the street". He "was concerned" that Taylor "might hurt" A. He had seen Taylor "throw a drink followed by a glass at (A) on a previous occasion and ... had seen her pushed about by him". He went to another local party where he remained for five minutes. He then went to a local cafe where he got something to eat and remained for about half an hour. He returned to the second party for a further five minutes. When he left there, he walked down the street with some other friends. He then got back into his car "and decided to go for a drive and then went to the clubrooms".… His unsworn statement continues:
"I went into the Recreation Ground I saw Jason sitting in his car. He was sitting in the front seat and appeared to be dozing. I decided to go over and have a talk to him about getting into (A). I parked my car facing the same way as his about two metres away. I got out of the car and yelled 'Taylor, Taylor'. Just before I opened his door I saw (A). I could see her head across his lap. I noticed he had no trousers on. I then opened the door. I saw her giving him a head job. I saw she had her trousers off. He then said 'Piss off you cunt, piss off'. She was still in the same place. After he spoke she sort of looked up. I then spat it. I felt myself getting really wild. Seeing her like that with him and being told to 'Piss off you cunt' by Jason caused me to lose control. We had not been alone often. I just got wild. I had looked after her. When I used to go out with her we spent little time alone. He was one night standing her. I had looked after her. She had told me she had been raped when she was little. She used to cry in my arms over it. I was shocked. I felt that he was hurting me.
He had no trousers on and had an erection. She was naked from the waist down. I left the door open and turned around and went back to my car. I lit up a smoke. I had a butcher's knife in the car. I got it and took a couple of draws on my cigarette. I looked back at Jason and the car door was still open. Jason still had an erection and he was playing with himself. She was naked in the car. I had smoked about a quarter of the cigarette. I don't know what happened to the cigarette, but I think that I put it out.
The week before at football training he called her 'a slut' because she got onto Tim Groves (George). I have remembered this since I made my statement to the police. I pushed his right shoulder with my left hand. His hands came up towards me to push me. I had the knife in my right hand, blade downwards. I grabbed the knife in both hands and lunged downwards at him. I did not care where the knife went. I think the knife hit one of his hands and then into his chest.
19. The central question posed by the objective test - i.e. of such a nature as to be sufficient - obviously cannot be answered without the identification of the content and relevant implications of the wrongful act or insult and an objective assessment of its gravity in the circumstances of the particular case. Conduct which may in some circumstances be quite unprovocative may be intensely so in other circumstances. Particular acts or words which may, if viewed in isolation, be insignificant may be extremely provocative when viewed cumulatively…
20. Even more important, the content and extent of the provocative conduct must be assessed from the viewpoint of the particular accused. Were it otherwise, it would be quite impossible to identify the gravity of the particular provocation. In that regard, none of the attributes or characteristics of a particular accused will be necessarily irrelevant to an assessment of the content and extent of the provocation involved in the relevant conduct. For example, any one or more of the accused's age, sex, race, physical features, personal attributes, personal relationships and past history may be relevant to an objective assessment of the gravity of a particular wrongful act or insult. Indeed, even mental instability or weakness of an accused could, in some circumstances, itself be a relevant consideration to be taken into account in the determination of the content and implications of particular conduct. For example, it may be of critical importance to an assessment of the gravity of the last of a series of repeated insults suggesting that the person to whom they are addressed is "mad" to know that that person has, and understands that he has, a history of mental illness. As Wilson J. commented in Hill (at pp 346-347; p 347 of CCC), the "objective standard and its underlying principles of equality and individual responsibility are not ... undermined when such factors are taken into account only for the purpose of putting the provocative insult into context".
27. In the light of what has been written above, the effect of the threshold objective test of s.160(2) can be stated in summary form. It is to pose for the jury the question whether, in all the circumstances of the case, the wrongful act or insult, with its implications and gravity identified and assessed in the manner we have indicated, was of such a nature that it could or might cause an ordinary person (or, when appropriate, an ordinary person of the age of the accused), that is to say, a hypothetical or imaginary person with powers of self-control within the limits of what is ordinary (for a person of that age), to do what the accused did. A consideration of that question will almost inevitably involve projecting the hypothetical ordinary person of s.160(2) into the position of the accused at the time of the killing. There is nothing objectionable about that so long as it is remembered that the reference to the ordinary person of s.160 is not a reference to a person of precisely identifiable powers of self-control but a reference to a person with powers of self-control within the range or limits of what is "ordinary" for a person of the relevant age. In that regard, it must be borne in mind that s.160(2) refers to "an ordinary person" and not to "the average person".
28. A projection of the "ordinary person" of the objective test into the position of the accused at the time of the killing will, however, involve a particular difficulty in a case where the existence of some attribute or characteristic of the accused is relevant both to the identification of the content or the gravity of the wrongful act or insult and to the level of power of self-control of any person possessed of it. As Crawford J. pointed out in Jeffrey v. The Queen (1982) Tas R 199, at p 233, self-control tends to reflect many characteristics and "the degree of self-control possessed by a person may vary according to the specific qualities of his character". If, for example, a person is obsessively jealous or extraordinarily excitable and pugnacious, his powers of self-control are hardly likely to be within the range which might properly be regarded as "ordinary" (cf. Reg. v. Fricker, at p 445). In a case where it is necessary to take some such characteristic or attribute into account for the purpose of identifying the content or gravity of the wrongful act or insult (e.g. a case of a grave insult centred upon that characteristic or attribute), the objective test will, nonetheless, require that the provocative effect of the wrongful act or insult, with its content and gravity so identified, be assessed by reference to the powers of self-control of a hypothetical "ordinary person" who is unaffected by that extraordinary attribute or characteristic. In other words, the fact that the particular accused lacks the power of self-control of an ordinary person by reason of some attribute or characteristic which must be taken into account in identifying the content or gravity of the particular wrongful act or insult will not affect the reference point of the objective test, namely, the power of self-control of a hypothetical "ordinary person".
36. The critical question is whether the jury might, if it accepted that view of the gravity and implications of the provocative conduct, have entertained a reasonable doubt about whether the objective test was not satisfied. In our view, no jury could have entertained such a reasonable doubt. The appellant's infatuation with - and associated jealousy in relation to - A was something which itself inevitably detracted from his actual powers of self-control. That being so, while the infatuation could be relevant to assessing the gravity of the insult involved in the profane and dismissive comment made to him, it cannot be seen, for the purposes of the objective test, as diminishing the power of self-control of the hypothetical ordinary person. There is an added element of artificiality involved in projecting the hypothetical ordinary person of the objective test into the situation of the appellant at the time of the killing since it is unlikely that a person with power of self-control within the range attributable to a hypothetical ordinary nineteen year old would, in all the circumstances including the court order restraining the appellant from approaching A, have been at the scene in the first place…
The appellant was tried before Slattery AJ, and a jury, on a charge that she murdered her husband, Piv Chhay. She was convicted of murder and sentenced to 12 years' penal servitude, consisting of a minimum term of six years, and an additional term of six years. She appeals against her conviction.
At the trial, it was common ground that the appellant had killed her husband by cutting his throat and striking him on the head with a meat cleaver. The principal defence relied upon was self defence. The appellant also raised an issue of provocation, and the argument in this appeal is related solely to that issue.
At 6 and 7
The above passage indicates that provocation was left to the jury on a basis which was consistent with the appellant's version of the events leading up to the death of the deceased. The provocative act on the part of the deceased specifically referred to was the taking up by the deceased of a weapon, and his attempting to use it against the appellant. However, the defence also placed reliance upon the history of the relationship between the appellant and the deceased since the time of their marriage and, in addition, the events that had occurred between them on the evening of 6 August 1991.
The Crown case was that the appellant had cut her husband's throat, and chopped his head, whilst he lay asleep. The Crown invited the jury to conclude that the appellant's story about an attack upon her by her husband was a fabrication. It was, on the evidence, open to the jury to accept the Crown's argument off this point, and it appears that they did so. That finding was important in their rejection of self defence but it would also have disposed of what was put to the jury as a key element in the defence of provocation.
At 7 and 8
Although the way in which the trial judge left provocation to the jury was tied in closely with the appellant's version of how the deceased met his death, which was in turn related to the main defence, ie self defence, senior counsel for the appellant, in his closing address, made a brief reference to the possibility that the jury might bring in a verdict of manslaughter, on the basis of provocation, even if they rejected the appellant's claim that her husband had attacked her with a cleaver or a knife. On this approach the provocative conduct of the deceased would have to consist of his ill-treatment of his wife over many years and his conduct on the evening of 6 August. (That, it may be noted, is the conduct referred to by Slattery AJ, in mitigation, in his remarks on sentence; conduct which he there said had caused the appellant to react and lose control of herself). Before Slattery AJ summed up to the jury he heard submissions from counsel as to the way in which he would leave provocation to the jury, and then ruled that he would only leave the issue on the basis that the jury were prepared to accept, at least as a possibility, that the deceased had attacked the appellant with a knife or cleaver as she claimed.
The issue on this appeal is whether, on that material, the trial judge should have left provocation to the jury on a wider basis which did not treat the alleged attack on the appellant by the deceased as a crucial matter.
At 22 and 23
That having been said, it is still necessary to address the question of the nature of the distinction between killing as the result of a loss of self-control, and killing which, even though it follows ill-treatment of an accused by a deceased, is nevertheless regarded as murder. This is because, with all its theoretical imperfections, and practical roughness, the law of provocation is still only a limited concession to a certain type of human frailty, and is not intended to allow a jury to reduce what would otherwise be murder to manslaughter upon a view that a deceased person received his or her just deserts. The law is not intended to encourage resort to self-help through violence.
It will probably remain the case that, for many people, loss of self-control is a concept that is most easily understood, and distinguished from, a deliberate act of vengeance in the factual context of a sudden eruption of violence. However, times are changing, and people are becoming more aware that a loss of self-control can develop even after a lengthy period of abuse, and without the necessity for a specific triggering incident, The presence of such an incident will assist a case of provocation, but its absence is not fatal. This is an area in which psychiatric evidence may assist juries to develop their understanding beyond the commonplace and the familiar. There are, for example, circumstances in which a psychiatrist's explanation of post traumatic stress syndrome may help make a case of provocation even where there is a substantial interval of time between the provocative act of the deceased and the accused's response. This, however, is a matter for evidence and argument in individual cases. What the law still requires is that it should be explained to the jury that the key concept for them to bear in mind, whether for the purposes of the subjective or objective aspect of the problem, is that of a killing which results from a loss of self-control.
Emotions such as hatred, resentment, fear, or the desire for revenge, which commonly follow ill-treatment, and sometimes provide a motive for killing, do not of themselves involve a loss of self-control although on some occasions, and in some circumstances, they may lead to it. What the law is concerned with is whether the killing was done whilst the accused was in an emotional state which the jury are prepared to accept as a loss of self-control.
At 23 and 24
In my respectful opinion the learned trial judge was in error in ruling that the acceptance by the jury, at least as a possibility, of a knife or cleaver attack by the deceased upon the accused immediately before the killing was essential to a case of provocation. That view may reflect ideas of the need for immediacy, and suddenness of response, which, in the light of the decision in Reg v Ahluwalia did not reflect the common law and which, in any event, cannot be reconciled with s23 of the Crimes Act.
French CJ, Kiefel, Bell and Keane JJ
1. Michael Joseph Lindsay was tried before the Supreme Court of South Australia (Sulan J) on an information that charged him with the murder on 1 April 2011 of Andrew Roger Negre. The jury were directed that it was incumbent on the prosecution to prove that the killing of the deceased was unprovoked. Lindsay was convicted of murder.
2. Lindsay appealed against his conviction to the Court of Criminal Appeal of the Supreme Court of South Australia (Kourakis CJ, Gray and Peek JJ) on grounds which challenged the accuracy and sufficiency of the directions given to the jury on the issue of provocation. The majority (Peek J, with whom Kourakis CJ agreed) found that the directions were flawed in a number of respects and that the cumulative effect of these flaws constituted a miscarriage of justice. However, their Honours were of the "firm view" that in 21st century Australia the evidence taken at its highest in favour of Lindsay was such that no reasonable jury could fail to find that an ordinary person could not have so far lost his self-control as to attack the deceased in the manner that Lindsay did. It followed that the trial judge had been wrong to direct the jury on the alternative verdict of manslaughter based on provocation. The Court of Criminal Appeal majority concluded that, in the circumstances, the erroneous directions had not occasioned a substantial miscarriage of justice and the appeal was dismissed under the proviso to s 353(1) of the Criminal Law Consolidation Act 1935 (SA) ("the CLC Act").
8. Following Fiona's departure, there were two incidents, which together gave rise to the trial judge's decision to leave provocation for the jury's consideration. The first incident took place when the group was outside on the patio. The appellant was seated and the deceased straddled him, moving his hips backwards and forwards in a sexually suggestive manner. The appellant told the deceased that he was not gay and not to do "stuff like that" or he would hit him. Melissa also remonstrated with the deceased. The deceased apologised and the appellant told him "That's okay, just don't go doing stuff like that".
9. Peek J summarised the evidence of the patio incident, observing that, whether the deceased had intended it or not, there was substantial evidence that the incident had caused upset not only to the appellant but, importantly, also to his de facto wife in his presence. His Honour emphasised that the deceased had been told very firmly not to do it again.
10. The second incident occurred in the family room. The deceased was tired and the appellant told him that he could sleep in the spare room. The deceased said that he did not want to sleep up there by himself; he wanted the appellant in there with him. He said that he would pay the appellant for sex. The appellant replied "What did you say cunt?". The deceased repeated his proposition, offering to pay the appellant several hundred dollars. The appellant punched the deceased, who fell to the floor. The appellant kicked and punched the deceased as he lay on the floor. At some stage, the appellant took hold of a knife with which he repeatedly stabbed the deceased.
13. It is common ground that there was evidence upon which a reasonable jury might consider it possible that the appellant was provoked by the deceased's conduct and that he lost his self-control and carried out the fatal assault before regaining his composure. In light of the issues raised by the appeal, it is unnecessary to refer to other parts of the evidence that may have placed the events surrounding the killing in a different light.
16. Where provocation is raised by the evidence, the determination of whether it has been negatived is for the jury. Whether the subjective limb is negatived is a question of fact. Whether the objective limb is satisfied is a question of opinion or, to adopt Glanville Williams' classification, it is a question of "evaluative fact". The threshold question of law is whether there is material in the evidence which sufficiently raises the issue to leave the partial defence for the jury's consideration. The determination of the threshold question requires the trial judge (and the appellate court) to consider the sufficiency of the evidence to allow that an ordinary person provoked to the degree the accused was provoked might form the intention to kill or to do grievous bodily harm and act upon that intention, as the accused did, so as to give effect to it. The respective roles of judge and jury in the latter determination is the issue raised by the first ground of the appeal.
26. Under the common law of provocation, the trial judge and the appellate court have the task of fixing the boundaries of the minimum powers of self-control that must be observed before it is open to the jury to find that murder is reduced to manslaughter by reason of provocation. The question for the trial judge and the appellate court is the same: whether "on the version of events most favourable to the accused which is suggested by material in the evidence, a jury acting reasonably might fail to be satisfied beyond reasonable doubt that the killing was unprovoked in the relevant sense". The determination of the question by the appellate court involves somewhat greater exactitude than the determination made by the trial judge. This reflects, as a matter of practicality, the reluctance of trial judges to withdraw the issue from the jury and the tendency to "tilt the balance" in favour of the accused.
27. In Stingel, the Court disavowed that the threshold test blurs the functions of judge and jury: within the area in which it is open to find that the prosecution has failed to negative provocation, the question is for the jury alone. Importantly, the Court emphasised the "limited scope" of the threshold question of law and the need to exercise caution before declining to leave provocation. While the Court endorsed the relevance of contemporary attitudes and conditions to the threshold question, no question of a shift in those attitudes or conditions was raised by the evidence in Stingel.
40. The trial judge did not err in leaving to the jury the alternative verdict of manslaughter based on provocation.
73. Counsel for the appellant further contended that, whether or not the trial judge was correct to leave provocation to the jury, the fact was that his Honour had done so and, as was only to be expected, defence counsel's final address was structured accordingly. In counsel's submission, if provocation had not been left to the jury, defence counsel would have had no reason to submit to the jury that, if the appellant were the culprit, there was a reasonable possibility that the appellant was provoked. And, had that been the case, it cannot be gainsaid that the jury might then have been left with a reasonable doubt as to whether the appellant was the culprit. Accordingly, in counsel's submission, this was a case where, because of the way the trial was conducted, the appellant had been denied a chance of acquittal which was fairly open to him and, therefore, the Court of Criminal Appeal was in error in concluding that there had not been a substantial miscarriage of justice.
74. There is force in that submission. Assuming that provocation should not have been left to the jury, it would be difficult to exclude as a reasonable possibility that by raising it as a partial defence, and defence counsel having to adapt her final address accordingly, the appellant was deprived of a chance of acquittal otherwise fairly open to him. Ultimately, however, the point is moot because, for the reasons which follow, the trial judge was right to leave provocation to the jury.
88. For these reasons, the trial judge was right to leave provocation to the jury. It was not open to the majority of the Court of Criminal Appeal to be satisfied that the inadequacy of the judge's directions on provocation did not deprive the appellant of a chance which was fairly open to him of a verdict of guilty of manslaughter. The majority of the Court of Criminal Appeal was wrong to conclude that the inadequacy of the directions was not productive of a substantial miscarriage of justice.
46. After all evidence had been adduced, and before closing addresses, senior counsel for the Accused made an application on 23 May 2016 that I leave the partial defence of extreme provocation to the jury. Submissions were made on this issue (T1297-1312) together with written submissions on behalf of the Accused (MFI85) and the Crown (MFI86).
47. Following those submissions on 23 May 2016, I announced my decision declining to leave extreme provocation to the jury, with reasons to be published at a later time for this conclusion (T1313).
52. The Accused contended that the partial defence of extreme provocation arose from the evidence of the following circumstances:
(a) the Accused lost control and shot Mr Turner in response to Mr Turner’s conduct, including his presence on Talga Lane on 29 July 2014 undertaking surveillance activities of “Colorado” without prior notice;
(b) Mr Turner’s conduct from at least 21 August 2012 to 29 July 2014 amounted to a serious indictable offence, namely harassment pursuant to s.13 Crimes (Domestic and Personal Violence) Act 2007;
(c) the conduct of Mr Turner could have caused an ordinary person to lose self-control to the extent of intending to kill or inflict grievous bodily harm on Mr Turner.
58. In support of the application that the partial defence of extreme provocation be left to the jury, the Accused bears an evidentiary onus to point to evidence from which it could be inferred that there is at least a reasonable possibility that the homicidal act of the Accused was provoked in accordance with the four elements contained in s.23 Crimes Act 1900: R v Youssef (1990) 50 A Crim R 1 at 3. I accept that caution must be exercised before declining to leave extreme provocation to the jury: Lindsay v The Queen  HCA 16;255 CLR 272 at 284 .
80. At the conclusion of R v Turnbull (No. 5) (see  above), I observed that the final and conclusive resolution of the question whether the partial defence of extreme provocation should be left to the jury, could only be made at the close of the evidence in the trial. That point has now been reached. I express my conclusion that the Accused has fallen far short of discharging the evidentiary onus in support of the second element of extreme provocation, so as to warrant that partial defence being left to the jury.
82. However, as I expressed some comments with respect to other elements of the partial defence in R v Turnbull (No. 5), and further submissions were made on those topics at the close of the evidence, I will say something briefly about them. Of course, the following comments are by way of obiter dicta only in the context of these proceedings.
87. With respect to the fourth element of extreme provocation, the “ordinary person” test contained in s.23(2)(d) of the Act, I expressed certain obiter views in R v Turnbull (No. 5) at -.
88. It is clear that the removal of the words “in the position of the accused”, as part of the 2014 amendments to s.23, operate to narrow significantly the “ordinary person” test for the purpose of extreme provocation.
89. Senior counsel for the Accused made submissions concerning the “ordinary person” test, by reference to statements made by the High Court of Australia in Stingel v The Queen  HCA 61; 171 CLR 312 and Masciantonio v The Queen  HCA 67; 183 CLR 58. In considering these authorities, it is necessary to keep in mind the terms of the 2014 legislative changes, and the purpose or object of those changes as disclosed in the second reading speech: R v Turnbull (No. 5) at -.
90. The attributes of the Accused, which could be taken into account in the past by operation of the words “in the position of the accused”, should now be placed to one side. What remains for consideration is whether the “ordinary person” test should take into account the age (in the sense of immaturity) of an accused person as being an attribute of the ordinary person: Masciantonio v The Queen at 66-67. There is force in the view that this aspect remains as part of the “ordinary person” test. This concept was not dependent upon the words “in the position of the accused”, which were removed by the 2014 amendments. Of course, age (in the sense of immaturity) would not have assisted the elderly Accused in this case.
Rogers v R  NSWCCA 61
1. By Notice of Appeal filed 30 March 2020, the Appellant, Warren Francis Rogers, seeks to challenge his conviction by a jury, on 26 May 2019, following a trial in the Supreme Court for the murder of his wife, Anne Louise Rogers.
3 The Appellant relies upon a single ground of appeal which asserts that a miscarriage of justice resulted from the failure to leave to the jury the partial defence of extreme provocation under s.23 Crimes Act 1900 (NSW).
The 2018 and 2019 Trials of the Appellant
6. The Appellant was charged with the murder of his wife at their home at Links Avenue, Milperra on the night of 12 September 2016. He went to trial in the Supreme Court before Lonergan J and a jury in July 2018, pleading not guilty to murder but guilty to manslaughter. That plea was not accepted by the Crown. The trial proceeded, but the jury was unable to reach a verdict and was discharged.
7. A second trial proceeded before Lonergan J and a jury in May 2019 (“the 2019 trial”) and the Appellant entered the same plea, which again was not accepted by the Crown. At this trial, the jury returned a verdict of guilty of murder.
8.The Appellant was represented at both trials by the same very experienced trial counsel. The defence case at trial relied upon the partial defence of substantial impairment by abnormality of mind under s.23A Crimes Act 1900 (NSW). The Appellant did not give evidence at either trial. Psychiatric evidence was adduced in support of the partial defence of substantial impairment by abnormality of mind.
9. There was no reference at either trial of the Appellant to the partial defence of extreme provocation under s.23 Crimes Act 1900 (NSW).
25. The Appellant accepted at trial that he smothered the deceased and caused her death (T35 – defence opening address). The Crown accepted that there was evidence to establish that the Appellant had an abnormality of mind at the time of the offence (T576 – Crown closing address; SU).
26. The issues in dispute at trial were whether the Appellant's capacity to control himself was substantially impaired at that time and whether that impairment was so substantial as to warrant his liability for murder being reduced to manslaughter. In this regard, for the purpose of s.23A(1)(a) Crimes Act 1900 (NSW), the Appellant relied on an impairment of self-control rather than an impairment of his understanding of events or judgment as to whether his actions were right or wrong (T385).
Experience With the Partial Defence of Extreme Provocation Since 2014
62. Trial Judges have declined to leave the partial defence of extreme provocation to juries in a number of cases: R v Turnbull (No. 5)  NSWSC 439 (leave to appeal under s.5F Criminal Appeal Act 1912 (NSW) refused on jurisdictional grounds: Turnbull v R  NSWCCA 109); R v Turnbull (No. 25)  NSWSC 831; R v Bentley; R v Davies; R v Thomas; R v Tilley  NSWSC 283.
63. The partial defence of extreme provocation has been left to juries: R v Cliff (No. 5)  NSWSC 166 (the accused person was convicted of murder: R v Cliff (No. 6)  NSWSC 587); R v McDonald  NSWSC 839 (the accused person was found not guilty of murder, but guilty of manslaughter by unlawful and dangerous act: R v McDonald  NSWSC 858).
64. To date, this Court has not been called upon to consider the substance of the partial defence of extreme provocation.
The Proper Construction of s.23 Crimes Act 1900 (NSW)
92. As noted earlier (at ), the Crown made a number of submissions concerning the proper construction of s.23(2) and senior counsel for the Appellant did not take issue with these submissions.
93. I accept the Crown submissions on these issues. The following propositions are to be applied in determining this appeal.
94. Firstly, it is the same “conduct” of the deceased that is relevant for the purposes of each subsection in s.23(2). This construction is confirmed by the use of the definite article “the” in each of s.23(2)(b), (c) and (d) – “the conduct of the deceased …”.
95. Accordingly, the conduct of the deceased to which the accused person responded (s.23(2)(a)), and which caused the accused person to lose self-control (s.23(2)(c)), and which was capable of causing an ordinary person to lose self-control (s.23(2)(d)) must be conduct that constituted a serious indictable offence (s.23(2)(b)).
96. Support for this construction can be drawn from statements by the Attorney General in the second reading speech which emphasised that, for the provision to apply, the accused person must be provoked by serious conduct on the part of the deceased (see  above).
97. Secondly, it is necessary to have regard to the impact of the 2014 amending Act on the objective element of the partial defence now contained in s.23(2)(d).
102. I accept the Crown submission that the assessment required by the current form of s.23(2)(d) does not involve an assumption that the ordinary person is provoked by the deceased’s conduct to the same extent as the accused person, and it is not relevant that the accused person was especially sensitive to the conduct constituting the provocation or that, from the accused person’s perspective, there was some particular sting to the deceased’s conduct: R v Turnbull (No. 25) at -.
103. The element of the partial defence in s.23(2)(d) is, as the Attorney General stated in the second reading speech, purely objective (see  above). This represents a departure from the operation of the former s.23(2)(b) and the common law: cf Stingel v The Queen at 324, 326, 333; Masciantonio v The Queen at 66-67; Green v The Queen at 340, 369. It is apparent, however, that such a departure was the purpose of the 2014 amending Act.
104. A consequence of this amendment, which departs significantly from the common law, is that the ordinary person test now contained in s.23(2)(d) assumes a calm ordinary person and that it is not relevant that the accused person was particularly sensitive to the situation or was experiencing a depressive disorder.
Section 23(2)(b) – The Second Element
128. Consideration of s.23(2)(b) requires identification of the conduct of the deceased and consideration whether that conduct constituted a serious indictable offence. As noted above, there was evidence based upon statements by the Appellant that the deceased kicked him during the struggle between them with a claim by the Appellant that damage was caused to one or more of his teeth and with his shoulder being dislocated.
Section 23(2)(a) and (c) – The First and Third Elements
135. It is appropriate to consider the elements in s.23(2)(a) and (c) together. These cumulative elements require evidence that the act of the Appellant that caused death was in response to conduct of the deceased towards or affecting the Appellant and that the conduct of the deceased caused the Appellant to lose self-control.
Section 23(2)(d) – The Fourth Element
141. The fourth and final element is that contained in s.23(2)(d), that the conduct of the Appellant could have caused an ordinary person to lose self-control to the extent of intending to kill his wife or inflict grievous bodily harm upon her. This element is the critical and determining aspect on this appeal.
150. The test in s.23(2)(d) is purely objective. When applying that test, the ordinary person is not placed in the position of the accused (other than to the extent of having also been subject to the relevant conduct of the deceased). Accordingly, if it be the case, the fact that the Appellant lacked the powers of self-control of an ordinary person and was vulnerable to over react to emotional triggers is not relevant: Stingel v The Queen at 332; Masciantonio v The Queen at 72.
151. The Appellant’s diagnosed depressive disorder is also irrelevant. Even prior to the 2014 amending Act, it was accepted that such a disorder should not be imputed to the hypothetical ordinary person: Ziha v R at .
152. In addition, I accept the Crown submission that the Appellant’s declared love for his wife, his commitment to working on their marriage, his apparent frustration that his efforts in that regard were not being recognised and his dominant personality in the context of his relationship with his wife are personal characteristics of the Appellant which, if previously thought to be capable of increasing the “sting” of the alleged provocative conduct, are no longer relevant to the question of how an ordinary person might react to that conduct for the purposes of s.23(2)(d).
N Adams J
173. I have had the significant advantage of reading the judgment of Johnson J in draft. I agree with the orders proposed by his Honour for the reasons provided.
174. I also agree with the orders proposed by Johnson J for the reasons provided.