Kaporonovski v The Queen [1973] HCA 35

High Court of Australia McTiernan A.C.J. Menzies, Walsh, Gibbs and Stephen JJ. Kaporonovski v The Queen [1973] HCA 35

ORDER Special leave to appeal granted: Appeal dismissed. The questions in the stated case answered as follows:

Question 1. No.

Question 2. No.

Cur. adv. vult.

The following written judgments were delivered:—

Sept. 12 McTiernan A.C.J. and Menzies J.

This is an application for special leave to appeal from the judgment of the Court of Criminal Appeal in Queensland specially constituted by five judges pursuant to the provisions of s. 5 of the Supreme Court Act [36] .

1. [1972] Qd. R. 465.

At the trial of the applicant upon a charge of unlawfully doing grievous bodily harm—an offence created by s. 320 of the Criminal Code—the learned trial judge, after the conviction of the applicant and pursuant to s. 668B of the Criminal Code, stated a case for the Court of Criminal Appeal by which two questions were asked as follows:

1. Whether any defence under s. 23 is available upon the evidence in this case; and

2. Whether ss. 268 and 269 of the Criminal Code apply to the charge under the Criminal Code of unlawfully doing grievous bodily harm.

The facts as stated were as follows:

Ibro Bajric suffered a laceration and subsequent severe injury to his left eye on the 5th day of March, 1971. There was no dispute on the part of the defence that the injury to Ibro Bajric's eye was occasioned by an act on the part of the accused in forcing a glass against Ibro Bajric's eye. The injury that was caused to Ibro Bajric did amount to grievous bodily harm. Ibro Bajric gave evidence before me that before the injury was occasioned to his eye he had said words to the accused which amounted to a wrongful insult. The accused gave evidence that immediately before Ibro Bajric suffered his injury Bajric had used words to the accused which amounted to a wrongful insult and which were similar in import but not identical to the words which Bajric said he used. The accused said that he struck Bajric because the words used by Bajric had caused him, the accused, to become very upset. In my opinion there was evidence of conduct on the part of Ibro Bajric which could amount to provocation as defined by s. 268 and there was evidence that the accused was provoked by this conduct. Before me the accused gave evidence that he took hold of Ibro Bajric's wrist and that he pushed against Bajric's hand. He said that Bajric also pushed back with his hand. The accused said he pushed Bajric's hand back towards Bajric's face. The accused said that Bajric had his glass of beer in his hand, and that the glass then broke and the accused became aware of beer and blood on his face and that Bajric had suffered injury. The accused also gave evidence before me that Bajric had lifted the glass with the possible intention of hitting the accused, and that in the process of defending himself he struck Bajric's hand and the glass finished near Bajric's eye.

The first question is whether the facts as stated could warrant the jury finding that the applicant was not criminally responsible by reason of the provisions of s. 23 of the Criminal Code. That much considered clause is, so far as relevant, as follows:

23. 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.

Here the event for the purposes of the section is the grievous bodily harm suffered by Bajric. The act, for the purposes of the section, is the forcing of the glass against and into Bajric's face.

That event did not happen by accident. It was the obvious, natural and probable consequence of the act. That act did not occur independently of the exercise of the will of the applicant. What he did was done deliberately.

Accordingly, in our opinion, the resolution of the first question does not require an examination of the many authorities bearing upon the task of a presiding judge invited to direct the jury that it can find absence of criminal responsibility for what would otherwise be an offence by reason of the provisions of s. 23. Here, all that is necessary is to apply the section according to its terms without resort to authority.

In our opinion the majority of the Court of Criminal Appeal were correct in deciding that the first question should be answered "No".

The second question we find very much more difficult. The full and helpful argument addressed to the Court demonstrated that in Australia and in New Guinea there are two strongly held views in conflict with one another. The first view—which is that adopted by the majority of the Court of Criminal Appeal—is that s. 269 of the Criminal Code, which makes provocation as described in s. 268 a defence, does not apply to the crime created by s. 320. The second view—which was that adopted by the minority of the Court of Criminal Appeal—is that it does.

In the Supreme Court of Queensland there has, over the years and under the influence of Philp J., been a change of view about the meaning of s. 268 but it is, we think, correct to say that it is the first construction, well expressed by Mack J. in Reg. v. Herlihy [37] , that has prevailed. The other construction is the accepted doctrine of the Supreme Court of Papua New Guinea and is supported by some decisions of the Supreme Court of Western Australia upon similar provisions of the Criminal Code W.A.. There are strongly expressed differing judicial opinions which must be taken into account but there is no authority one way or the other binding this Court.

1. [1956] St. R. Qd. 18.

In these circumstances, having had the advantage of reading what has been written by other judges relevant to the controversy, we must decide for ourselves whether s. 269 applies to the crime created by s. 320.

In considering these competing views it is necessary to give close attention to s. 304 as well as to ss. 268 and 269 of the Criminal Code.

Section 268 is a definition of provocation differing substantially from the provocation which at common law serves to reduce to manslaughter a killing which would otherwise amount to murder. The term "provocation" as defined in s. 268 has, however, no application except "to an offence of which an assault is an element". Section 269 provides that a "person is not criminally responsible for an assault committed upon a person who gives him provocation for the assault" if certain conditions exist. One is that "the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm". Section 304 is as follows:

304. Killing on Provocation. When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute wilful murder or murder, does the act which causes death in the heat of passion caused by sudden provocation, and before there is time for his passion to cool, he is guilty of manslaughter only.

Section 269 provides a defence. Section 304 serves to reduce a killing which would otherwise be murder to manslaughter. It is abundantly clear that s. 269 has no application to a person unlawfully killing and that s. 304 provides exclusively where there is provocation for killing. Furthermore, s. 304 can apply to a killing which happens otherwise than by reason of an assault, e.g. to the provoked interference without an aircraft about to take off which, by reason of such interference, crashes causing the death of the pilot; cf. s. 319A. A number of cases which have been decided are concerned with the problem whether what is described in s. 304 as "sudden provocation" is provocation as defined in s. 268. In accordance with one view the answer is "No". In accordance with the other view the answer is "Yes". The difference is similar, but not quite the same as the difference which has arisen whether s. 269 applies to a crime such as unlawfully doing grievous bodily harm, for, in each case, the meaning of the words "an offence of which an assault is an element" in s. 268 requires consideration. In determining the application of s. 269 the meaning of the words is decisive; in determining whether "provocation" as defined by s. 268 is the "sudden provocation" referred to in s. 304, the meaning of the words in s. 268 is an important consideration, but other considerations have also to be taken into account. However, as the present problem is with the application of s. 269 to the crime of doing grievous bodily harm created by s. 320, it is not necessary to examine the other considerations which tend against treating the words "sudden provocation" in s. 304 as "provocation" described in s. 268.

Prima facie an offence of which an assault is an element means an offence which is not committed unless there be an assault, for it is the definition of an offence which determines its "elements". There are a number of instances of such offences in the Criminal Code. There are, however, other offences in which assault is not an element of the offence in the sense just mentioned but the proof of the offence may (in a particular case) involve the proof of an assault; e.g. murder, manslaughter, unlawfully doing grievous bodily harm, causing death or grievous bodily harm by the dangerous driving of a motor vehicle on a road. Is it then a fair meaning of the words "an offence of which an assault is an element" in s. 268 to apply them to such offences so that s. 269 would, except in the case of a killing, provide a defence in the particular case? With deference to those who take, and have taken, a contrary view, we think not. We acknowledge, of course, that the construction which we have adopted does confine the operation of s. 269 to narrow limits. As to this it is worth observing that it would be unreasonable to construe s. 268 in such a way that ss. 268 and 269 would not have any operation, but provided that the construction adopted does give them an effective operation there is no reason for going further and adopting a particular construction because it would give these sections an extensive operation. The extent of their operation must depend upon the language in which they are expressed. All that can be said with complete assurance is that, in some circumstances, whichever construction be adopted, ss. 268 and 269 do afford a defence of provocation unknown to the common law and this is not a case where there is reason to adopt a generous construction of the language used in order to give the sections in question an effective operation.

Our conclusion that the decision of the Court of Criminal Appeal is correct rests upon the following considerations, all of which are to be found expressed in the judgments of judges of the Supreme Court of Queensland. First and foremost there is the prima facie meaning of the words of s. 268 which point to proof of an assault being necessary to establish the offence defined by some provisions in the Criminal Code. It is to the necessary elements of "an offence" that attention is directed by the section rather than to the particular evidence tendered to prove the offence charged. Secondly, s. 269, in providing that a person is not criminally responsible for an assault committed upon another person, suggests that its likely effect is simply that the act constituting the assault, charged as part of the offence, loses its character as an element in the offence if done with provocation. It is the assault which loses its criminal character so that the offence charged, or a necessary element in that offence, is deprived of its criminal character. Thirdly, s. 291 is inconsistent with incorporating the definition in s. 268 into s. 304. See Reg. v. Johnson, per Philp J. [37a] .

1. [1964] Qd. R. 1, at p. 5.

Before concluding, there is a matter referred to in the course of argument to which some reference should be made. It was suggested that one consequence of not taking the definition in s. 268 into s. 304 would be that the Code would not be an entirely self-contained statement of the criminal law. It seems to us, however, that even if the definition in s. 268 were to be taken into s. 304—and the words "sudden provocation" themselves suggest that it should not—the Code would still not be self-contained. Section 304, unlike s. 269, does not itself express the conditions upon which provocation is given legal effect. The conditions stated in s. 269 cannot be read into s. 304 and it is only to the common law to which reference can be had to determine the circumstances in which provocation, however defined, reduces a killing from murder to manslaughter.

The considerations to which we have referred satisfy us that s. 269 does not provide any defence to the crime of unlawfully doing grievous bodily harm created by s. 320 and that the Court of Criminal Appeal was correct in answering the second question "No".

We would therefore grant special leave to appeal and dismiss the appeal.

Walsh J.

The facts are recited in the judgments of other members of the Court and need not be repeated. Two questions were reserved by the trial judge for consideration by the Court of Criminal Appeal in Queensland in accordance with s. 668B of the Criminal Code of that State. The first question was whether any defence under s. 23 of that Code was available upon the evidence in the case. In the judgments in the Court of Criminal Appeal different opinions were expressed on the question whether what has been called "the wide view" or what has been called "the narrow view" should be adopted in determining, in a case in which an accused seeks to rely upon s. 23, what constitutes "an act" for which a person is not criminally responsible if that act occurs independently of the exercise of the will.

One view may be stated as being that if anything which is an ingredient of the crime occurs independently of the will of the accused the provision is satisfied. On that view, as applied to the present case, it is not merely the physical actions of the accused that must be considered but the "doing" of grievous bodily harm. The infliction of grievous bodily harm by what the accused did is also the act or a part of the act of the accused, in relation to which the question must be raised whether it occurred independently of the exercise of his will. Counsel for the applicant admitted that this approach should be adopted. It was submitted that the cutting of the eye of the other man and its surrounding tissue, which involved the doing of grievous bodily harm, was an act which could be found to have occurred independently of the exercise of the applicant's will. The pushing of the broken glass into the eye or, on one view of the evidence, the pushing of the glass against the eye with such force that it broke, could be found to have occurred without the applicant's will, because he may have been unable to arrest the movement of the glass so that it stopped before reaching the eye. If a finding were really open that the pushing of the glass against the eye was itself an "unwilled act", I should agree that the first part of s. 23 would need to be considered by the jury. But, in my opinion, no such view of the evidence could be taken.

On the opposing view of the provision a distinction is drawn between, on the one hand, a bodily action which, alone or in conjunction with some quality of the action, or consequence caused by it, or an accompanying state of mind, would entail criminal responsibility, and, on the other hand, something occurring as a result of the action and attracting criminal responsibility which the action otherwise would not have produced. It is the first of the things thus described which is on this view the relevant "act" for the first part of s. 23: see Vallance v. The Queen [38] .

1. (1961) 108 C.L.R. 56, at p. 64.

In my opinion, it is not necessary in every case to apply s. 23 in accordance with a rigid formula which accords with one or other of the two views described above. In the present case I do not find it necessary to make a definite choice between those two opposing views. I agree with respect with the opinions stated by Lucas J. in the present case that none of the decisions requires the adoption in every case of either the one view or the other, that each case presents a different problem, and that it is impossible to say that "the wide view" or "the narrow view" must be taken in every case. These opinions are, I think, in harmony with the observation by Dixon C.J. in Vallance v. The Queen [39] , where his Honour said that "it is only by specific solutions of particular difficulties raised by the precise facts of given cases that the operation of such provisions as s. 13 [of the Tasmanian Code] can be worked out judicially".

1. (1961) 108 C.L.R., at p. 61.

In my opinion, in this case there was no act of the accused which could have been found to have occurred independently of the exercise of his will. Plainly that is so if the acts to be considered are confined to his own physical actions. But if they are taken to include the "doing" of grievous bodily harm, I am of opinion that this makes no difference. I think it is impossible to separate the pushing of the glass against the other man's face and the cutting of his eye from the doing of grievous bodily harm to him. The doing of harm, that is, the infliction of injury, is inseparable from the pushing against the eye of a glass which was already broken or became broken by means of the force of the pushing. It is true that the applicant may not have intended to inflict grievous bodily harm, but in the operation of s. 23 the intention to cause a particular result is immaterial, in relation to such an offence as that with which the applicant was charged. In Vallance v. The Queen [40] , a distinction was made between the shooting and the wounding, some members of the Court being of the opinion that the relevant act was the shooting and that the wounding was an event or result brought about by the act and others holding that the wounding was the act. But the circumstances under consideration were different. The judgments of those Justices who took the view that the wounding and not the shooting was the relevant act do not, in my opinion, support the propostion that in every case a sensible distinction can and should be made between the wielding of the weapon by which a wounding is inflicted and the wounding itself. Nor is any support for that proposition to be obtained from the case of Timbu Kolian v. The Queen [41] . There three members of the Court, Kitto, Menzies and Owen JJ., based their decision on that part of s. 23 which negatives criminal responsibility for "an event which occurs by accident" and they did not deal with the first part of s. 23. Barwick C.J. said [42] that in deciding what was the act which occurred or did not occur independently of an exercise of the will the choice on the facts of the case was between the wielding of the stick and the landing of the blow on the head of the infant child. His Honour concluded that the act was the striking of the child on the head and that that was not a willed act. But his Honour did not say that the occurrence of injury to the child which proved fatal was to be considered, separately from the striking of the child on the head, as a relevant act or as part of the relevant act of the applicant in that case. McTiernan J. adopted the view that the act means the external elements of the crime. He concluded that the act in the case then before the Court was the bodily movement involved in striking with the stick and the impact of the blow on the child and that that impact was not intentional or willed. In my opinion, that judgment does not govern the question in the present case of determining whether the doing of grievous bodily harm, as distinct from the willed pushing of the glass against the other man's face, was part of the relevant act of the accused. Nor, in my opinion, does the judgment of Windeyer J. contain anything that would require an affirmative answer to that question.

1. (1961) 108 C.L.R. 56. 2. (1968) 119 C.L.R. 47. 3. (1968) 119 C.L.R., at p. 52.

In my opinion, it is plain that the second of the exculpatory provisions contained in the first paragraph of s. 23 does not apply to the facts of this case.

The first question should be answered "No".

The second question submitted to the Court of Criminal Appeal was whether ss. 268 and 269 of the Criminal Code apply to the charge under the Criminal Code (see s. 320) of unlawfully doing grievous bodily harm. The contest on this question is between the view that s. 269, read with s. 268, has no operation except in a case in which the offence charged is one which is defined in the Code in such a way that an assault is an essential ingredient in the offence and the view that it may apply in a case in which, although an assault is not part of the offence as defined, it is alleged against an accused who is charged, for example, with the offence of doing grievous bodily harm to another created by s. 320 or the offence of unlawfully wounding another created by s. 323 (1), that he did commit an assault and evidence is brought to prove that fact.

Reasons for and against each of the two interpretations of ss. 268 and 269, to which I have referred, have been fully and forcibly stated in earlier decisions in Queensland and elsewhere and by the members of the Court of Criminal Appeal in the present case. I do not think that it would be useful for me to go over all the ground which has been so well trodden, by setting out all the reasons that have been advanced in support of each view and examining their validity. I have come to the conclusion that the decision on this question of the majority of the Court of Criminal Appeal should be upheld.

I recognize that that view gives a restricted operation to s. 269. It is said also that it produces a capricious result by allowing s. 269 to operate, for example, where a person is charged under s. 339 of the Code with the offence of unlawfully assaulting another and thereby doing him bodily harm but excluding its operation where there is, under s. 323, a charge of unlawfully wounding. I do not say that these are irrelevant considerations, but I cannot attach major importance to them. I do not feel that I am at liberty to approach the task of construing the relevant provisions with the preconceptions that an ample rather than a restricted operation of s. 269 was intended, and that it was likely that it was intended that all offences which were in fact comparable should be treated in a similar way and then to construe the words used in the statute in a way which accords with those preconceptions. It is for the Parliament, if it wishes to do so, to remedy any anomalies that may be found in the Code.

It is said that speaking strictly the word "provocation" is not used in s. 269 with reference to any offence, since that section provides that what might otherwise constitute an offence does not attract criminal responsibility. That is true, but it is not, I think, of much assistance in resolving the problem raised in this appeal. I think that it cannot be doubted that s. 268 applies to the word "provocation" in s. 269. I do not think that it is a necessary consequence that the opening phrase in s. 268 cannot be held to be restricted to an offence of which an assault is expressly declared to be a necessary element. On any view the language used is not apt to provide in a precise way a logical link between s. 268 and s. 269. But whilst it is true that s. 269 does not itself contain any reference to an offence of which an assault is an element, I am of opinion that unless the limiting words at the commencement of s. 268 are to be held to have no operation at all, then the fact that the definition in s. 268 does apply to the term "provocation" as used in s. 269 carries with it the consequence that whatever limitation is imposed by those opening words of s. 268 must be imported into s. 269. In saying that I do not overlook the fact that the opening words are not themselves part of the definition contained in s. 268, but are words which impose a limitation with respect to the applicability of the definition. But it remains true, in my opinion, that the scope of the operation of s. 269 must be affected by that limitation, that is to say, the defence which s. 269 provides must be applicable only in those cases in which the offence charged is "an offence of which an assault is an element".

I agree with respect with the opinions expressed by McTiernan and Menzies JJ. in their joint judgment herein that in their prima facie meaning, the words "used with reference to an offence of which an assault is an element" in s. 268 indicate that an assault must be a necessary component of "an offence" as defined by some provision of the Code. As their Honours say, it is to the necessary elements of an offence that attention is directed rather than to the particular evidence tendered to prove the offence which is charged.

In my opinion, the adoption of the view that, regardless of the charge that is brought against the alleged offender, whenever as part of the proof of the charge evidence is given that the accused committed an assault on some other person s. 269 is available as a defence (subject, of course, to the conditions which are required by the section to be satisfied in order that the provocation put forward by the accused may provide him with a defence) has the consequence that the words "used with reference to an offence of which an assault is an element" have no real operation at all. It is plain that those words must have been intended to impose some limitation upon the area within which the definition is to be operative. Some meaning should be given to them which has the effect of limiting its operation, and of thereby limiting the area within which the exculpatory provisions of s. 269 are applicable. But if the words had been omitted from s. 268, the terms of the definition itself are such that it could apply only in a case in which there has been an assault on one person by another. That means that it could apply only in a case in which the commission of an assault becomes an issue at the trial and evidence is offered to show that an assault has been committed. If, then, it is said that s. 269 is available whenever it appears in the particular case that an assault is alleged as part, and as a necessary part, of the proof of the commission of the offence charged, whatever that offence may be, no limitation is imposed on the area of operation of the definition and, consequently, on the scope of s. 269, additional to the limitation inherent in the subject matter with which ss. 268 and 269 are concerned, that is to say, assaults following upon provocative acts or insults. No effect is given to the words "used with reference to an offence of which an assault is an element". I am, therefore, in agreement with the opinion expressed by the learned district court judge who presided at the trial that, upon the view which was afterwards adopted in this case by the minority in the Court of Criminal Appeal, the words just quoted would be surplusage.

Many difficult problems additional to those to which I have referred were discussed in the Court of Criminal Appeal and at the hearing of this appeal. Amongst these problems may be mentioned the questions of the relationship of ss. 268 and 269 to ss. 291 and 303 and of the applicability of the definition in s. 268 of provocation to the use of that word in s. 304 of the Code. I do not think that it is necessary for me to discuss those problems in these reasons. No doubt my conclusion may have logical consequences in relation to the questions whether the term "provocation" is used in s. 304 in the sense attributed to it in the definition in s. 268 and whether s. 269 is applicable in some cases of alleged manslaughter. But those questions are not raised directly by this appeal and I do not think that I need embark upon a discussion of them. This does not mean, of course, that I have left out of account, in reaching my conclusion, the authorities in which those questions have been discussed.

In my opinion the second question should be answered "No".

I am of opinion that special leave to appeal should be granted and that the appeal should be dismissed.

Gibbs J.

The applicant was indicted in the District Court of Queensland on a charge that on 5th March 1971 at Brisbane he unlawfully did grievous bodily harm to one Ibro Bajric. That charge was laid under s. 320 of the Criminal Code Q. ("the Code") which provides:

Any person who unlawfully does grievous bodily harm to another is guilty of a crime, and is liable to imprisonment with hard labour for seven years. Before a verdict was given, counsel for the applicant applied to the learned trial judge to reserve two questions of law which arose on the trial, and on which the learned trial judge had during the course of the trial given rulings adverse to the applicant. In accordance with s. 668B of the Code, the learned trial judge did reserve the two questions, which were as follows:

(a) Whether there was a defence under s. 23 of the Code available upon the evidence in the case; and

(b) Whether ss. 268 and 269 of the Code apply to a charge under s. 320 of the Code of unlawfully doing grievous bodily harm.

The jury convicted the applicant and the learned trial judge postponed judgment until the two questions had been considered and decided by the Court of Criminal Appeal of the State of Queensland. That Court, specially constituted by five judges, heard argument on the questions, and by a majority determined that both questions should be answered in the negative and that the case should be remitted to the learned trial judge to pronounce sentence on the applicant [1] . From this decision application is made to us for special leave to appeal. 1. [1972] Qd. R. 465.

The case transmitted by the learned trial judge to the Court of Criminal Appeal, although not altogether precise, appears upon analysis to reveal the following facts. Bajric spoke to the applicant words which constituted a wrongful insult of such a nature as to be likely, when offered to an ordinary person, to deprive him of the power of self-control and to induce him to assault the person by whom the insult was offered. The applicant was in fact provoked by that insult to act as he did. He took hold of Bajric's wrist and pushed Bajric's hand, which was holding a glass of beer, back towards Bajric's face. Bajric pushed back with his own hand. The glass was forced against Bajric's eye causing him grievous bodily harm. At some time during this incident the glass broke, but it is not clear whether that occurred before or after the glass touched Bajric's face. It was also stated in the case that there was some evidence that the applicant had acted in self-defence, but this is not relevant to the questions reserved.

The first question raised is whether a defence under s. 23 of the Code was available in the circumstances of the case. Section 23 provides as follows:

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.

By s. 1 the term "criminally responsible" means "liable to punishment as for an offence", and s. 2 provides that "An act or omission which renders the person doing the act or making the omission liable to punishment is called an offence".

The first paragraph of s. 23, after the introductory proviso as to negligent acts and omissions, states two rules which, although they deal with related matters, are quite distinct. For present purposes the discussion of these rules may be confined to the case of acts, since it was acts and not omissions that resulted in the applicant being held criminally responsible in the present case. The first rule, that a person is not criminally responsible for an act which occurs independently of the exercise of his will, requires that the act for which a person is criminally responsible shall be his own act, and an act which results from the exercise of his will. Thus the section has been held to have the effect that an employer is not liable for the act of his servant done without his authority and contrary to his instructions (Hunt v. Maloney; Ex parte Hunt [2] ), that a person driving a motor vehicle would not be liable for causing the death of another if he had fallen asleep without any prior warning of his inability to keep awake and in circumstances where a reasonably careful driver would not have been aware that he was likely to fall asleep (R. v. Scarth [3] ) and that a person is not criminally responsible for acts done in a state of automatism caused by an injury to the head (Cooper v. McKenna; Ex parte Cooper [4] ). Of course other sections of the Code may render the exculpatory provisions of s. 23 inapplicable; for example, s. 7 may render a person who falls within its provisions criminally liable for an offence committed by another, and ss. 27 and 28 will govern cases of insanity and intoxication that might otherwise have fallen within s. 23. However, the first rule of s. 23, in so far as it applies to acts of the accused himself, requires that those acts should be of his own volition—that he should have willed that the acts themselves should happen. That rule is not concerned with the consequences of an act which the accused has willed. It is the second rule, that a person is not criminally responsible for an event which occurs by accident, that exculpates an accused from liability for the accidental outcome of his willed acts. Moreover, neither rule deals with the result intended to be caused by an act or omission; the second paragraph of s. 23 renders that immaterial unless the intention to cause a particular result is expressly declared (that is, in the provision creating the offence) to be an element of the offence constituted, in whole or part, by the act or omission.

1. [1959] Qd. R. 164. 2. [1945] St. R. Qd. 38. 3. [1960] Qd. R. 406.

There has been a difference of opinion as to what is comprehended within the meaning of the word "act" in the first paragraph of s. 23. One view is that it refers to any act forming an element of the offence charged; another is that it means what Dixon C.J., in Vallance v. The Queen [5] , called "the external elements necessary to form the crime". In the present case the submission of the applicant takes as its starting point the latter view. It was conceded that the pushing of the glass towards Bajric's face was an act which resulted from the exercise of the will of the applicant, but it was submitted that the "act", for the purposes of the first rule in s. 23, included everything that happened from the time when the applicant commenced to push against Bajric's hand until Bajric was occasioned grievous bodily harm, and that it should have been left to the jury to consider whether the pushing of the glass into Bajric's face with a degree of force sufficient to cause him grievous bodily harm was an act accompanied by the exercise of the applicant's will. This is very close indeed to a submission that the jury should have been invited to consider whether the applicant had an intention to cause grievous bodily harm—a question which was quite irrelevant to the charge.

1. (1961) 108 C.L.R., at p. 59.

In Vallance v. The Queen [6] , where the accused was charged with the offence of unlawfully wounding another, the Court discussed the meaning of the word "act" in s. 13(1) of the Criminal Code Tas., a section which although similar to s. 23 has important points of difference from that section. Section 13(1) provides:

No person shall be criminally responsible for an act unless it is voluntary and intentional, nor, except as hereinafter expressly provided, for an event which occurs by chance. 1. (1961) 108 C.L.R. 56.

Dixon C.J. said that the words of the first part of this subsection refer to the punishable acts of the accused and that since in that case the wounding was the punishable act it was the wounding which must be voluntary and intentional [7] . Windeyer J. was of a like opinion. He said [8] :

The statement that no person shall be criminally responsible for an act, unless it is voluntary and intentional refers, I think, as a mere matter of construction, to an act for which, if done voluntarily and intentionally, a person would be criminally responsible. The definition of criminally responsible in s. 1 seems to confirm this construction. The "act" referred to is thus a deed that, if done wilfully and intentionally (and in cases where a specific intent is an ingredient of the crime, done with that intent), would make the doer criminally responsible. Since nothing less than the act of wounding would, if done intentionally, give rise to criminal responsibility, he too considered that the wounding was the act to which s. 13(1) referred. However, this view was rejected by Kitto and Menzies JJ. Kitto J. said [9] : In my opinion, s. 13(1) is framed with a recognition that there is a distinction to be drawn between, on the one hand, a bodily action performed by a person, entailing criminal responsibility either per se or in virtue of some quality of the action, some consequence caused by it , some accompanying intent or state of mind , and, on the other hand, something eventuating in consequence of the action and attracting a criminal responsibility which the action otherwise would not have produced. When s. 13(1) speaks of an act being voluntary and intentional, before turning to the event and speaking of that as not occurring by chance, it seems to me to be addressing itself only to the question whether a person charged acted of his own free will and by decision, before asking whether that which eventuated from his act was a merely chance result. Menzies J. said [10] that the "act" was the act of shooting and not the act of wounding—the latter was the "event" or result brought about by the "act" of shooting. The other member of the Court, Taylor J., did not expressly deal with the question, although the reasons which he gave for his judgment [11] suggest that he was of a similar opinion to Kitto and Menzies JJ. 1. (1961) 108 C.L.R., at pp. 60-61. 2. (1961) 108 C.L.R., at p. 79. 3. (1961) 108 C.L.R., at p. 64. 4. (1961) 108 C.L.R., at p. 71. 5. (1961) 108 C.L.R., at pp. 68-69.

In my respectful opinion, the differences between s. 13(1) of the Tasmanian Code and s. 23 of the Queensland Code are not such as to render it necessary to give to the word "act" in the latter section a meaning different from that which it bears in the former. However, in Timbu Kolian v. The Queen [12] , the meaning of s. 23 of the Code, as adopted in Papua and New Guinea, fell for consideration and three members of the Court took the view that the question was not concluded by Vallance v. The Queen [13] . The facts were that the accused had, in the darkness, picked up a stick and aimed a blow at his wife but had struck and killed a baby who was being carried in his wife's arms. The accused did not know of, and had no reason to suspect, the presence of the baby. The whole Court held that the operation of s. 23 required the acquittal of the accused. Barwick C.J. and McTiernan J. were of opinion that the first rule in s. 23 applied. Their view was that the "act", for the purposes of s. 23, was the striking of the child on the head, and not the actual wielding of the stick. Kitto, Menzies and Owen JJ., on the other hand, considered that the second rule applied; Menzies J. said [14] that the death of the child from being struck upon the head with the stick was an event which occurred by accident, and Owen J. (with whom Kitto J. concurred) said [15] that the fact that the blow struck the child was an event which occurred by accident. Windeyer J. held that both rules applied: the act of the accused, namely hitting the child on the head with a stick thereby killing him, was not an intended act; alternatively, the striking of the child causing the death was an event which occurred by accident. Although in this case three members of the Court adopted an interpretation of s. 23 similar to that given to s. 13(1) of the Tasmanian Code by Dixon C.J. and Windeyer J. in Vallance v. The Queen [15a] , and the other members of the Court did not expressly dissent from that interpretation, it would in my opinion be quite wrong to regard the decision as an authority binding this Court to adopt that interpretation. To hold that the second rule applied, and that the death of the child was an event caused by accident, was in my opinion implicitly to reject the view that the first rule was applicable. Although of course one set of facts may call for a consideration of both rules and, as Timbu Kolian v. The Queen shows, those called upon to decide the question may agree that s. 23 applies while differing as to which rule is applicable, nevertheless, as Barwick C.J. pointed out in Timbu Kolian v. The Queen [16] , the second rule is directed to the consequences of an act which was accompanied by the will of the actor. Although it may be that in an exceptional case the applications of the two rules may not be mutually exclusive, that is not true of circumstances such as those under consideration in Timbu Kolian v. The Queen. The decision of Menzies, Kitto and Owen JJ. in that case that the killing or the striking of the child was an event which occurred by accident ought to lead to the conclusion that neither the killing nor the striking of the child was an "act" which occurred independently of the will of the accused. The Court was in effect evenly divided as to whether the first rule in s. 23 applied, and the question of the meaning of the word "act" in that section remains an open one upon which I am now free to give effect to my own opinion.

1. (1968) 119 C.L.R. 47. 2. (1961) 108 C.L.R. 56. 3. (1968) 119 C.L.R., at p. 56. 4. (1968) 119 C.L.R., at p. 71. 5. (1961) 108 C.L.R. 56. 6. (1968) 119 C.L.R., at pp. 52-53.

I can, with respect, appreciate the force of the argument that since s. 23 is intended to relieve an accused person from responsibility in the cases to which it applies, the "act" referred to must be one which renders the person doing it liable to punishment. However, it would in my respectful opinion be a departure from the ordinary meaning of the word to regard "act" as including all the ingredients of the crime other than the mental element. As has been pointed out, in many cases the bodily acts of the accused by themselves do not entail any criminal responsibility. Putting aside cases where a specific intention is required, there are many offences which are constituted only if the act of the accused was accompanied by some extrinsic circumstance (e.g. absence of consent on a charge of rape or the age of the girl on a charge of unlawful carnal knowledge) or had some particular consequence (e.g. the causing of grievous bodily harm, as in the present case). It would be straining language to regard the word "act" as extending to all such external circumstances. Further, the phrase "negligent acts" in the first paragraph of s. 23, and the word "act" in the second and third paragraphs, obviously can only apply to physical actions and do not refer, for example, to the consequences of those actions. However, perhaps the strongest indication of the intent with which "act" is used in the first paragraph of s. 23 is to be found in the very words of that paragraph, which, by distinguishing between an act and its consequences, show that "act" is not intended to embrace the consequences as well as the action that produced them. Section 23 is elliptical and when it speaks of criminal responsibility for an act or for an event it does not mean that the act or event per se would necessarily give rise to criminal responsibility, but rather refers to an act or event which is one of the circumstances alleged to render the accused person criminally responsible. It seems to me that this must be beyond argument in so far as the section refers to an event, for an event—the consequences of an act—alone could hardly give rise to criminal responsibility. In my opinion the "act" to which the first rule refers is some physical action, apart from its consequences—the firing of the rifle rather than the wounding in Vallance v. The Queen [17] and the wielding of the stick, rather than the striking or the killing of the baby in Timbu Kolian v. The Queen [18] . I thus respectfully adopt the views of Kitto and Menzies JJ. in Vallance v. The Queen [17] rather than the contrary opinions.

1. (1961) 108 C.L.R. 56. 2. (1968) 119 C.L.R. 47. 3. (1961) 108 C.L.R. 56.

The pushing, by the applicant, of the hand holding the glass was an action willed by the applicant. It was not an action which occurred independently of the exercise of his will and the first rule in s. 23 therefore had no application.

In my opinion, the second rule does not apply. It must now be regarded as settled that an event occurs by accident within the meaning of the rule if it was a consequence which was not in fact intended or foreseen by the accused and would not reasonably have been foreseen by an ordinary person: seeVallance v. The Queen [19] , Mamote-Kulang v. The Queen [20] , Timbu Kolian v. The Queen [21] and Reg. v. Tralka [22] . It is impossible to say that the grievous bodily harm suffered by Bajric was so unlikely a consequence of pushing a glass forcibly towards his face that no ordinary person could reasonably have foreseen it—indeed no very strong argument was advanced to the contrary. In the present case the provisions of s. 23 did not exculpate the applicant and the first question was rightly answered in the negative.

1. (1961) 108 C.L.R., at pp. 61, 65, 82. 2. (1964) 111 C.L.R. 62, at pp. 69, 72. 85. 3. (1968) 119 C.L.R., at pp. 67, 71. 4. [1965] Qd. R. 225, at pp. 228, 233-234.

The second question, in effect whether a defence of provocation is available on a charge of unlawfully doing grievous bodily harm, is one that has occasioned considerable controversy. The answer to it depends upon the proper construction of ss. 268 and 269 of the Code which appear in Ch. 26 ("Assaults and Violence to the Person Generally: Justification and Excuse") and read as follows:

268. 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.

269. 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 that the force used is not disproportionate to the provocation, and is not intended, and is not such as is likely, to cause death or grievous bodily harm.

Whether any particular act or insult is such as to be likely to deprive an ordinary person of the power of self-control and to induce him to assault the person by whom the act or insult is done or offered, and whether, in any particular case, the person provoked was actually deprived by the provocation of the power of self-control, and whether any force used is or is not disproportionate to the provocation, are questions of fact.

From the time of the enactment of the Code, and for some decades afterwards, it was accepted by the courts in Queensland without question that s. 269 had the effect that provocation, as defined in s. 268, was, subject to the conditions stated in s. 269, a defence to a charge of manslaughter, unlawfully doing grievous bodily harm, or unlawfully wounding, where the death, grievous bodily harm or wounding had been caused by an assault committed by the accused: R. v. Coupland ((1901) Griffith C.J.) and R. v. Smeltzer ((1905) Cooper C.J.), cited in Macleod's Queensland Criminal Code Supplement, at pp. 94-96; R. v. Foxcroft (Real J.) [23] ; R. v. Harris (Court of Criminal Appeal) [24] ; R. v. Sabri Isa (Stanley and O'Hagan JJ.) [25] . The Code in defining those crimes does not use the word "assault", and does not make an assault a necessary component part of the offence, but the defence of provocation was nevertheless held applicable where the commission of an assault was alleged to have been in fact an element of the offence charged. However, a shift of opinion became manifest in Reg. v. Martyr [26] , where Philp J., in the course of expressing his view that under s. 291 of the Code (which provides that "it is unlawful to kill any person unless such killing is authorized or justified or excused by law") an accused person escapes liability only if the killing itself is authorized, justified or excused, and that it is not enough that the blow or other act causing death was authorized, justified or excused, went on to say [27] :

Thus by s. 269 of the Code a person is not criminally responsible for an assault committed upon a person who gives him provocation for the assault. The assault is justified but if death be caused by the assault the mere fact that the assault was justified is immaterial to the question whether the killing was justified or excused. The question fell for discussion again in Reg. v. Johnson [28] , where the Court of Criminal Appeal was called upon to consider the meaning of provocation in s. 304 of the Code, a section which appears in Ch. 28 ("Homicide: ") and which then read as follows: 304. Killing on provocation.—When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute wilful murder or murder, does the act which causes death in the heat of passion caused by sudden provocation, and before there is time for his passion to cool, he is guilty of manslaughter only. (The words "wilful murder or" have since been omitted from the section.)The actual decision in that case was that the word "provocation" in s. 304 was used in the sense in which it was understood at common law and not with the meaning given to it by s. 268. In reaching that conclusion Philp J. [29] expressed again his earlier opinion that s. 269 affords no exculpation so far as manslaughter is concerned. Lucas J. was of a similar opinion. He said [30] : Wilful murder and murder are not offences of which an assault is an element, and it is only in connection with offences of wilful murder and murder that s. 304 has any operation. It is true that many, perhaps most, cases of wilful murder and murder are cases in which an assault has occurred, but this does not, in my opinion, make these offences offences of which an assault is an element. These remarks of Philp and Lucas JJ. were treated by Hart J. in Reg. v. Sleep [31] , as mere dicta and not binding upon him, and upon consideration he followed the earlier authorities and held that s. 269 affords a defence to a charge of manslaughter. In Reg. v. Day [32] Hoare J. took the same view. These authorities were discussed by the Court of Criminal Appeal in Reg. v. Williams [33] , where it was held that the interpretation of ss. 268 and 269 reached in Reg. v. Johnson [28] was correct and that Reg. v. Sleep [31] was wrongly decided. Notwithstanding this decision, in Reg. v. Pickett [34] , Hart J. held that the facts in Reg. v. Williams [35] had raised no question of provocation and that the observations of the Court in that case were only dicta: he accordingly felt free to adhere to the views that he had earlier expressed in Reg. v. Sleep [35a] . It was in the light of this striking conflict of judicial opinion that a Special Court of Criminal Appeal of five members was convened in the present case. 1. (1911) 5 Q.J.P. 129. 2. [1930] Q.W.N. 22. 3. [1952] St. R. Qd. 269, at pp. 288-289, 303-305. 4. [1962] Qd. R. 398. 5. [1962] Qd. R., at p. 414. 6. [1964] Qd. R. 1. 7. [1964] Qd. R., at p. 5. 8. [1964] Qd. R., at p. 20. 9. [1966] Qd. R. 47. 10. Unreported, 7th June 1966; Supreme Court of Queensland. 11. [1971] Qd. R. 414. 12. [1964] Qd. R. 1. 13. [1966] Qd. R. 47. 14. [1972] Qd. R. 425. 15. [1974] Qd. R. 414. 16. [1966] Qd. R. 47.

The same question has also fallen for decision in Papua New Guinea, where the Quensland Code has been adopted as part of the law, and it has there been held that s. 269 does make provocation a defence to a charge of manslaughter: Reg. v. Nantisantjaba [36] .

1. [1963] P. & N.G.L.R. 148.

A controversy not unrelated to that concerning the application of ss. 268 and 269 has also raged in relation to the meaning of provocation in s. 304. Its relevance to the present case is that if the definition contained in s. 268 applies to provocation in s. 304, that would afford support to the view that the words "an offence of which an assault is an element" in s. 268 do not limit the application of that section to offences of which an assault is, by definition, a necessary element. It was assumed in the Court of Criminal Appeal in Queensland (at least by E. A. Douglas J.) in R. v. Willis [37] , and held by a majority of the same Court in R. v. Sabri Isa [38] , that provocation in s. 304 has the meaning given to that expression by s. 268. However, in Reg. v. Herlihy [39] , the Court of Criminal Appeal, by a majority (Mansfield C.J. and Mack J.), held (on grounds the validity of which it is unnecessary to canvas) that R. v. Sabri Isa [38] did not amount to a binding decision and that upon the proper construction of s. 304 "provocation" in that section was to be understood according to its meaning at common law. This has since been accepted in Queensland as settled doctrine: Reg. v. Young [40] ; Reg. v. Johnson [41] . However, in Western Australia, where a Code in similar terms is in force, and in Papua New Guinea, the decided cases strongly support the view that provocation in s. 304 is to be interpreted as defined in s. 268: Mehemet Ali v. The Queen [42] ; Reg. v. Hamo-Tine [43] ; Reg. v. Zariai-Gavene [44] ; Reg. v. Iawe-Mama [45] ; Reg. v. K. and J. [46] .

1. Unreported, 1946; Supreme Court of Queensland. 2. [1952] St. R. Qd. 269. 3. [1956] St. R. Qd. 18. 4. [1952] St. R. Qd. 269. 5. [1957] Qd. R. 599, at p. 603. 6. [1964] Qd. R., at pp. 6, 22. 7. [1957] 59 W.A.L.R. 28. 8. (1960) 8 F.L.R. 381. 9. [1963] P. & N.G.L.R. 203. 10. [1965-66] P. & N.G.L.R. 96. 11. Unreported, 17th November 1972; Supreme Court of Papua New Guinea.

This Court is not bound by any of these authorities and is free to resolve these disputed questions according to its own opinion. Although it is unnecessary to canvass in further detail the reasoning to be found in these decisions, it ought to be said that the judgments contain clearly stated arguments in favour of the contending views and have been most helpful in enabling me to reach a decision.

The question that now falls to be decided is one of construction. The instrument to be construed is a Code. It is hardly necessary to repeat, although it is of importance not to forget, the rules of construction of codifying instruments that have been laid down in such authorities as Bank of England v. Vagliano Brothers [47] ; Robinson v. Canadian Pacific Railway Co. [48] ; Brennan v. The King [49] ; and Wallace-Johnson v. The King [50] . The proper course in the first instance is to turn to the language of the Code itself and to construe it according to its natural meaning. However, if the Code uses an expression (such as "provocation") which has acquired an accepted technical meaning, that accepted meaning may be attributed to the word if the Code itself has not defined it.

1. [1891] A.C. 107, at pp. 120, 144-145. 2. [1892] A.C. 481, at p. 487. 3. (1936) 55 C.L.R. 253, at p. 263. 4. [1940] A.C. 231, at p. 240.

The section of the Code which, in cases to which it applies, makes provocation a defence, is s. 269. In my opinion if that section stood alone it would (subject, of course to the conditions which it specifies) exculpate an accused person who stood charged with manslaughter, unlawfully doing grievous bodily harm or unlawfully wounding, if the death or injury had resulted from a provoked assault. If the accused is not criminally responsible for the assault he cannot, in my opinion, be held responsible for the death or injury which has resulted from it. To say, as Philp J. did in Reg. v. Martyr [51] , that the provocation may excuse the assault but not the killing, would in my opinion, with all respect to that eminent judge, be to place altogether too narrow a construction on the exculpatory words of s. 269 and to construe s. 291 with a slavish literalism which would ignore the sense of the section and its relation to other provisions of the Code. However, the words of s. 269 must of course be understood in the light of s. 268 and it is upon the phrase "used with reference to an offence of which an assault is an element" contained in that section that much of the argument in favour of a restricted view of s. 269 is based.

1. [1962] Qd. R. 398.

It has been said that the fact that the definition of "provocation" appears in s. 268, in the chapter dealing with assaults,rather than in s. 1, the definition section, of the Code, provides an indication that the definition is intended to be applied only for limited purposes. It has also been said that the introductory words of the definition show that it governs the meaning of "provocation" only when that term is used in the Code in respect of an offence which, as enacted, makes an assault an element. However, the word "provocation" appears in the Code only in ss. 25, 268, 269, 270 and 304, although the word "provoked" is also used in ss. 271 and 272, and "provoke" is used in ss. 61 and 73. In none of those sections is "provocation" used with reference to an offence of which an assault is declared to be a necessary element. It is of course clear that the definition in s. 268 must govern the word provocation in s. 269—if that were not so, and if it did not apply to s. 304, it would have no effective application at all. However, strictly speaking, "provocation" in s. 269 is not used with reference to any offence, for the section describes circumstances in which no offence has been committed notwithstanding that there was an assault, for the person who committed the assault is absolved from criminal responsibility for it. Further, s. 269 is expressed to apply to any case in which an assault has been committed upon a person who has given provocation for the assault and there is nothing in that section to confine its operation to cases where the offence as defined specifies an assault as an element of it. If the definition in s. 268 is to apply to the term provocation in s. 269—as it must—the opening phrase of s. 268 cannot mean "used with reference to an offence of which an assault is expressly declared to be a necessary element". The phrase, which is imprecise and not well chosen, must therefore be given some such meaning as "used with reference to a case in which an assault in fact formed an element (or the sole element) of the offence charged". On this view the definition would apply to s. 304 in cases where the manslaughter was caused by an assault. But whatever meaning is given to the phrase in s. 268 it is impossible to avoid the conclusion that the definition of provocation in s. 268 applies to the term as used in s. 269, and since all that s. 268 does is to define the meaning of "provocation" there is no justification for regarding the introductory phrase in that section as imposing a further limitation on the scope of s. 269.

We were referred to the many sections of the Code in which the word "element" is used but they provide little assistance in resolving the present question. "Element" is an equivocal word; an element of an offence must be a constituent part of the offence but it may be either an essential component of the offence as defined or a part of the offence as it was actually committed. It is true that in quite a number of sections of the Code (of which ss. 22, 23 and 28 are only a few) the context shows that the word "element" can only mean an element of the offence as defined but in others (e.g. ss. 12, 557 and 685) it can clearly enough be used in either sense. The word is also used in s. 575 and the cases in which that section has been discussed (cases which it is not here necessary to consider) show the doubt that can attend the meaning of the word. A consideration of the sections in which "element" appears does not indicate that in the Code the word is always used to mean a component part of the offence as expressly defined.

If the defence given by s. 269 were to be confined to offences in which an assault is expressed to be a necessary element of the offence, the result would be that the Code would in some circumstances have a quite capricious operation. It would mean that the availability of the defence of provocation would depend on the expression used in the Code to define the offence, rather than on any rational considerations. For example, the defence would be available to a person charged with unlawfully assaulting another and thereby doing him bodily harm (s. 339) but not to a person charged with unlawfully wounding another (s. 323) when the wounding was caused by an assault, although both offences carry the same maximum punishment and although a case of unlawful wounding will not necessarily be any more serious than one of assault causing bodily harm. It is legitimate, in choosing between the possible meanings of this ambiguous provision in the Code, to adopt a construction that would avoid anomalies of this kind.

Further, it would be somewhat surprising to find that in the Code, whose authors went to pains to frame provisions that would exclude and supersede the general rules of the common law as to criminal responsibility, and who provided a full and careful definition of "provocation" that in some respects differed from the common law, should nevertheless have intended that to ascertain the meaning of the word "provocation" in s. 304 it should still be necessary to roam over the various authorities in which the scope of the doctrine had been defined at common law. The fact that the law of homicide was materially altered by the provisions of ss. 301 and 302 (which have since respectively been repealed and amended) lends some further support for the view that it was not likely to have been intended that the rules of the common law with regard to provocation should continue to apply.

Certain other arguments have been advanced in favour of the view that s. 268 can only apply in relation to offences of which an assault is a necessary element according to the definition of the offence, and does not define the word as used in s. 304. It has been said that even if the definition contained in s. 268 were read into s. 304, the statement of the law with respect to the reducing effect of provocation on charges of murder would be defective and that recourse must in any case be had to the common law to fill the gap. In particular it has been suggested that s. 304 does not contain any express requirement that the accused should be "in fact deprived by the provocation of the power of self-control" and does not contain a requirement that "the force used is not disproportionate to the provocation" (cf. s. 269.). However, s. 304 speaks of an act done "in the heat of passion caused by sudden provocation" and those words imply that the act was done by a person who, acting in the heat of passion, had lost his power of self-control. As to the absence from s. 304 of a requirement that the force used should not be disproportionate to the provocation, the omission was in my opinion deliberate. Section 304 applies only to cases in which the person who gave the provocation has been killed, and the force used that resulted in the killing must necessarily have been disproportionate to the provocation offered, except perhaps in a case where a complete defence would have been available on the ground of self-defence. In my opinion there is no reason on the face of the sections why the definition in s. 268 should not be read into s. 304 as well as into s. 269. It has also been said that s. 304 can apply to a killing which has been caused otherwise than by an assault, e.g. as the result of an interference with a ship, motor car or aircraft, and that this shows that s. 268, which applies only to assaults, has no application to s. 304. Murders effected by damaging the vehicle in which the person killed was travelling or about to travel are not unknown, but it must indeed be a rare and exceptional case—if indeed one has ever arisen—where the interference with a vehicle which resulted in death was done in the heat of passion rather than as a result of malevolent deliberation. However that may be, in my opinion the framers of s. 304 did not contemplate that the doctrine of provocation could apply to a case in which the killing had been brought about in circumstances in which there was no assault. I reject the conclusion that s. 304 was intended to incorporate some of the common law rules as to provocation. On the contrary, in my opinion s. 268 provides the definition of provocation in s. 304, and if this is so, the words of s. 268 cannot be restricted to the case of offences whose definition includes an assault as an element.

My conclusion may be shortly stated. Section 269 absolves from criminal responsibility for an assault a person who is acting under provocation in the circumstances mentioned in the section. Of course the section does not apply to cases of murder: that is the effect of the proviso to the first sub-section. However, to absolve a man from criminal responsibility for an assault must similarly be to absolve him from liability for an offence which was in fact constituted by the assault. If there were a conflict between the words of s. 268 and s. 269, those of the latter section ought to prevail since it is the operative section, and has been enacted in favour of the liberty of the subject. However, the words of s. 268 do not in my opinion mean that the definition in that section can only be applied to the case of an offence of which an assault is declared by the provisions creating the offence to be an element.

For these reasons, and with great respect to those who have taken a contrary view, in my opinion the second question in the case should have been answered "Yes".

The question then arises, what order ought to be made in the matter? By s. 668B the question reserved is to be heard and determined as an appeal. It follows from what I have said that the defence of provocation should have been left to the jury unless on the evidence no reasonable jury could fail to have been satisfied that the force used was disproportionate to the provocation or was intended or likely to cause death or grievous bodily harm. It is not possible on the facts stated to say that a reasonable jury must have been so satisfied. If the evidence had shown that the glass had been broken before it was pushed towards Bajric's face it would have been difficult to escape the conclusion that the force used by the applicant was likely to cause grievous bodily harm. However, it does not appear when the glass became broken and although it was foreseeable that the pushing of an unbroken glass into Bajric's face might cause grievous bodily harm it was a matter for the jury to say whether it was likely in all the circumstances to cause grievous bodily harm. Further, on the facts stated it is not possible to say that notwithstanding the failure to leave the question of provocation to the jury no substantial miscarriage of justice has actually occurred, within the meaning of the proviso to s. 668E. The conviction ought therefore to be set aside.

On behalf of the applicant it was submitted that having regard to the considerable delays that have occurred since the conviction (which were explained in part by a hope that the decision in Reg. v. Williams [52] would conclude the question in issue and by the difficulty of convening a Court of Criminal Appeal of five judges) we should refrain from ordering a new trial. It would seem to me, however, that nothing has been shown in the material before us that would justify us in declining to order a new trial. No doubt the Crown in deciding whether to proceed with a new trial will give such attention as may be proper to the delays that have occurred.

1. [1971] Qd. R. 414.

For these reasons I would grant special leave to appeal. I would answer the first question "No" and the second question "Yes", would quash the conviction and would order a new trial.

Stephen J.

On this appeal there arise for decision two questions of law reserved by the learned trial judge in the course of the trial of the accused. A case was stated for the Queensland Court of Criminal Appeal, specially constituted of five judges, and a majority of that Court answered each question in the negative; from that decision special leave is now sought to appeal to this Court.

I have had the advantage of reading the reasons for judgment of Gibbs J. With the considerable assistance which I have derived from the arguments of counsel in this case and from the judgments of each of the members of the Court of Criminal Appeal I have concluded that I do not wish to add anything to what is said by my brother Gibbs concerning what are important and very vexed questions affecting the interpretation of the Criminal Code of Queensland. I agree both with his reasons for judgment and with the form of order which he proposes.