R v Ngakyunkwokka

In this case the appellant was convicted of murder. One of his grounds of appeal was that it was an error for the trial judge to leave the defence of provocation to the jury in circumstances where he did not rely on this defence and it undermined the defences he did rely on. Justice Dalton (with whom Morrison JA and Bradley J agreed) rejected this ground. Her Honour clarified the test or threshold of satisfaction to be applied by a trial judge when determining whether the defence of provocation should be left to a jury in light of amendments to s 304 Criminal Code 1899. Those amendments, relevantly, had the effect of altering the onus of proof so it only rests on the accused, who must satisfy the tribunal of fact, on the balance of probabilities, that they had been provoked within the terms of s 304 Criminal Code 1899. As the threshold had been satisfied in the circumstances of this case it was not an error for the trial judge to leave the defence of provocation to the jury. The appeal was dismissed.

Morrison and Dalton JJA and Bradley J

2 May 2023

Background

The appellant was convicted of murder. [2]. There was no doubt the appellant had caused the death of the deceased. [2]. The defence case was that the appellant had no intention either to kill or do grievous bodily harm, and alternatively, that the killing was in defence of another. [2], [65]. Provocation was not part of the defence case but had been raised by the trial judge on the second day of trial as potentially arising on the evidence. [65]. Provocation was ultimately left to the jury. [65]. One of the grounds of appeal was that it was an error for the trial judge to leave provocation to the jury in circumstances where the appellant did not rely on this defence, and it had the effect of undermining the defences that the appellant did rely on. [2], [65]. This was said to have caused a miscarriage of justice. [2], [65].

Whether the defence of provocation should have been left to the jury

Justice Dalton (with whom Morrison JA and Bradley J agreed) observed that it is a rule of common law that if the question of whether or not a killing was done under provocation fairly arises on the evidence, a trial judge must explain the defence to the jury. [66]–[72]. It is a matter for the jury whether the defence applies to the facts as they find them to be. [66]–[72]. The appellant attributed the origin of this common law rule as being one of “fairness to an accused”, however, a careful analysis of the origin of this obligation showed the opposite. [73]. The appellant’s submission was not supported by authority, nor was it supported by the principle which underlines that authority. [73]. The fact that defence counsel does not rely on a defence does not absolve the trial judge of leaving a defence to the jury where the case requires it. [70].

The appellant, in the alternative, relied on an amendment to s 304 Criminal Code 1899 by the Criminal Code and Other Legislation Amendment Act 2011 which altered the onus of proof for the defence of provocation (the “2011 amendment”). [74]. The 2011 amendment, it was said, required the trial judge to be satisfied to a higher threshold before leaving the defence to the jury. [77]. Even though the common law rule discussed above was established prior to the seminal case of Woolmington v Director of Public Prosecutions [1935] UKHL 1; [1935] AC 462 which established that the prosecution bears the onus of disproving any defence raised on the evidence, the appellant had nonetheless raised a legitimate point about the threshold of satisfaction as a result of the 2011 amendment. [76]–[77].

Justice Dalton (with whom Morrison JA and Bradley J agreed) held that provocation may be left to the jury even if defence counsel does not raise or rely upon it. [79]. Following the 2011 amendment, when it is necessary for a trial judge to consider whether the evidence is sufficient for the defence to be left to the jury “the test must be different from those jurisdictions where the onus is on the Crown to disprove provocation”. [79]. The test to be applied is whether on the version of events most favourable to the accused, a jury acting reasonably might be persuaded on the balance of probabilities that the killing was provoked. [79]. There was sufficient evidence for the defence to be left to the jury when this test was applied in the circumstances of this case. [80]–[84].

Disposition

The appeal was dismissed. [1]–[2], [97].

D Kerr