Section 304(1) of the Criminal Code 1899 provides a partial defence to a charge of murder in circumstances of “sudden provocation”. Section 304(3) excludes that defence when one member of a domestic relationship kills the other and the sudden provocation “is based on” a thing done, or believed to be done, by the deceased to change the relationship. By majority, the Court of Appeal held that the phrase “is based on” in s 304(3)(c) is not to be given an overly narrow interpretation. Thus, s 304(3)’s operation is not confined to cases where the nominated act of provocation is itself a thing done to change the relationship. Instead, s 304(3) can be engaged when a thing done by the deceased to change the relationship precedes the nominated act, such that the nominated act “is based on” it.
Morrison and McMurdo JJA and Applegarth J
29 November 2019
The appellant was convicted of the murder of his wife. The issue at trial was whether he had proven the partial defence of “sudden provocation” under s 304(1) of the Criminal Code 1899. . Shortly before the deceased’s death, her relationship with the appellant had deteriorated. . On the night she was killed, the appellant had sought to talk to her about text messages that he believed revealed she was having an affair. . The appellant struck his wife and she obtained a knife to defend herself. He cut his hand on the knife when he tried to take it off her. . He then violently killed his wife. .
Section 304(3) of the Criminal Code meant that the defence was not available, other than in circumstances of a most extreme and exceptional character, if “the sudden provocation is based on anything done by the deceased or anything the [appellant] believes the deceased has done” to change the relationship. –.
The act of provocation nominated by the appellant was the cutting of his hand with the knife his wife had obtained, considered in isolation. . The defence argued at trial that s 304(3) did not apply because the sudden provocation was “centred on the knife” and not matters in s 304(3). . The prosecution argued that the deceased’s actions with the knife were things done to change the relationship that occurred in the context of her trying to change the relationship. , . The trial judge directed the jury as to s 304(3) and instructed them that the defence had to prove that the sudden provocation was not based on anything the deceased had done, or the appellant believed the deceased had done, to change the relationship. –.
The appeal turned on the meaning of the words “is based on” in s 304(3)(c) – whether s 304(3) was engaged where the nominated act of provocation was preceded by things done by the deceased to change the relationship, such that the nominated act was “based on” those things. –.
Justice Applegarth delivered the leading judgment. According to his Honour, the ordinary meaning of the phrase “is based on” denoted a close causal relationship, and probably that the thing is a substantial cause of the sudden provocation. –.
The appellant’s submission that the ordinary meaning impermissibly broadened s 304(3)(c) to consider conduct beyond the nominated act was rejected. –. The fact the defendant was permitted to nominate the act of provocation did not mean that s 304(3) precluded a factual inquiry into whether the sudden provocation was “based on” something done to change the relationship. –. Furthermore, a purposive interpretation favoured a wider, rather than narrower, interpretation of “based on” so as to ensure the defendant could not avoid the operation of s 304(3) by nominating the most immediate act of the deceased. –.
Justice Applegarth explained that, to engage s 304(3), what was needed was a relationship between the nominated act and the act done by the deceased to change the relationship. –. Thus, his Honour held that:
“…[T]he ordinary meaning of ‘based on’ in the context of s 304 does not confine the operation of s 304(3) to a case in which the … [nominated act] … is a thing done by the deceased to change the relationship. The words ‘based on’ permit [s] 304(3) to be engaged when a thing done by the deceased to change the relationship precedes the act nominated by the defendant”. 
Thus, “[t]he factual question of whether the claimed (or assumed) sudden provocation was ‘based on’ an act of the deceased done to change the relationship calls for an evaluation of the chain of events and the causative potency of the act of the deceased”. .
In Applegarth J’s view, the trial judge had not misdirected the jury and the appeal was to be dismissed. –. There was evidence that raised the possibility that the nominated act, the cutting of his hand, was based on things done by the deceased to change the relationship. Therefore, the defence was required to prove s 304(3) was not engaged. .
Justice Morrison agreed with Applegarth J, subject to some additional remarks. , . The phrase “is based on” required the thing done to change the relationship to be the foundation or basis for the sudden provocation. . It was not a question of whether the nominated act was done to change the relationship. Instead, the question under s 304(3) was whether the nominated act and consequent loss of control was based on something done by the deceased to change the relationship. .
Justice McMurdo dissented. , . His Honour considered that s 304(3) was not engaged simply because the nominated conduct occurred in the context of a change in the relationship. . According to McMurdo JA, s 304(3) was only engaged if the jury considered the nominated conduct with the knife was done to change the relationship. . His Honour considered that the jury should not have been directed to consider s 304(3), as there was no evidentiary foundation for this. The deceased’s acts with the knife were acts of self-defence. –.
In the result, the appeal was dismissed. , –.