In this case the appellant appealed against his conviction for murder. In response to one of the grounds, the Crown contended that, where a mistake of fact is “intertwined” with a possible defence of provocation, the onus of proof is on the accused to prove the mistake of fact. The Court of Appeal unanimously rejected this contention.
Fraser and Gotterson JJA and North J
8 March 2018
On 15 December 2017, the appellant was convicted of murder. The appellant had been drinking alcohol and consuming methylamphetamine at a residence in Cairns. He had contacted the deceased by telephone and asked him to attend the residence. He then had a discussion with the deceased about an alleged drug debt. During the course of this discussion, a witness observed the appellant of going into the kitchen, returning with a knife, and then “whacking” the deceased in the head, resulting in his death. –. The appellant contended at trial that the deceased had threatened to stab him and had begun to stand up, in the moments before the incident occurred. .
The appellant sought to have his conviction quashed on two grounds. Firstly, on the basis that the jury’s verdict was unreasonable (within the meaning of s 668E(1) of the Criminal Code (“the Code”)) as there was no basis for inferring he had the requisite intention, having regard to the evidence about his intoxication. Secondly, on the basis that the trial judge’s direction in respect of the application of s 24 of the Code (the defence of Mistake of Fact) conveyed to the jury the impression that, in so far as it might apply to provocation, the onus was on the appellant to prove the mistake of fact. . Both of these grounds were unsuccessful (per North J, with Fraser and Gotterson JJA agreeing). , .
This case was notable for a contention by the respondent in response to Ground 2. The respondent contended that s 304 of the Code (concerning provocation) had the effect of shifting the onus of proof onto an accused with respect to mistake of fact when, as in this case, the asserted provocation was intertwined with a mistake of fact. .
Was the onus on the appellant to prove a mistake of fact?
The partial defence of provocation, contained in s 304 of the Code, provides that “it is for the defence to prove that the person charged is, under this section, liable to be convicted of manslaughter only”. As the trial judge noted, “it is an exception to the general principle that the prosecution, in bringing the charge, must prove everything related to the charge.” . Mistake of fact, in s 24 of the Code, retains the onus on the prosecutor to satisfy the court beyond reasonable doubt of the non-existence of operative mistake.
The two doctrines were intertwined in this case because the possible partial defence of provocation arose out of an alleged mistake of fact. The appellant contended that his belief that the deceased had a knife and was about to stab him led to him responding in the way that he did. The Crown contended that this intertwining meant that the onus lay on the accused to approve the mistake of fact, because it was related to the defence of provocation, for which they would ordinarily bear the onus.
North J (with whom Fraser and Gotterson JJA agreed) concluded that this submission, “made as it was without reference to any authority, is unattractive. It flies in the face of the authorities.” . His Honour noted that for over 60 years, the authorities on s 24 of the Code had been “consistent on its application and the relevant of onus of proof” – namely, that the onus is on the prosecutor to satisfy the court beyond reasonable doubt of the non-existence of operative mistake (citing Loveday v Ayre and Ayre  St R Qd 264). His Honour quoted from a number of more recent authorities which confirmed this understanding of mistake of fact under the Code. Further, the position at common law was similar, as the High Court had confirmed in He Kaw The v The Queen (1985) 157 CLR 523). . His Honour considered that nothing in s 304, nor in its context in the Code, “suggests that it was the intention of Parliament that it was to have any effect upon the operation of s 24”. . Accordingly, the respondent’s contention failed.
In summary, although the onus of proving the asserted provocation lay upon the appellant, in relation to whether that provocation was brought about or caused by a mistake of fact, the onus was on the prosecution to prove that there was no mistake of fact. .