PLAR No 1 of 1980; Request by Principal Legal Adviser on a Point of Law arising in a case where a Person tried upon Indictment has been Acquitted [1980] PGLawRp 606; [1980] PNGLR 326 (10 October 1980)

Papua New Guinea Law Reports - 1980

[1980] PNGLR 326 - PLAR No 1 of 1980; Request by Principal Legal Adviser on a Point of Law arising in a case where a Person tried upon Indictment has been Acquitted 

[1980] PNGLR 326

SC181

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

PLAR NO. 1 OF 1980. IN THE MATTER OF A REQUEST BY THE PRINCIPAL LEGAL ADVISER TO THE NATIONAL EXECUTIVE FOR THE OPINION OF THE SUPREME COURT OF JUSTICE ON A POINT OF LAW ARISING IN A CASE WHERE A PERSON TRIED UPON INDICTMENT HAS BEEN ACQUITTED.

AND IN THE MATTER OF S. 41(1) OF THE SUPREME COURT ACT 1975

Waigani

Wilson Greville Smith Andrew JJ

28-29 April 1980

10 October 1980

CRIMINAL LAW - Unlawful killing - Manslaughter - Provocation as defence - Whether provocation available as complete defence - “Offence of which an assault is an element” - Means “an offence in the commission of which an assault is committed” - Criminal Code ss. 271, 272, 307.

STATUTES - Interpretation - Rules of construction - “Literal” rule - Whether appropriate to circumstances of Papua New Guinea at this time - Duty of Supreme Court to assist in development of indigenous jurisprudence adapted to changing circumstances of Papua New Guinea - Constitution, s. 21, s. 158(2), Sch. 2.2(1), Sch. 2.4.

On a reference to the court pursuant to s. 41(1) of the Supreme Court Act 1975, of the question whether provocation is available as a complete defence to an accused person on a charge of manslaughter under s. 307 of the Criminal Code:

Held

N1>(1)      (Greville Smith J. dissenting). Provocation as defined in s. 271 of the Criminal Code is available as a complete defence under s. 272 of the Code, to an accused person on a charge of manslaughter under s. 307 of the Code.

R. v. K.J. [1973] P.N.G.L.R. 93;

R. v. Marumyapusek [1973] P.N.G.L.R. 582;

Regina v. Nantisantjaba [1963] P.N.G.L.R. 148; and

The State v. Saikoro Norman [1979] P.N.G.L.R. 599 adopted.

Kaporonovski v. The Queen [1973] HCA 35; (1973) 133 C.L.R. 209; and

The State v. Marawa Kanaio [1979] P.N.G.L.R. 319 not followed.

N1>(2)      (Greville Smith J. dissenting). The words “an offence of which an assault is an element” in s. 271 of the Code are to be interpreted as meaning “with reference to an offence in the commission of which an assault is committed”; the section is not to be limited to cases where the offence charged includes by definition an assault.

R. v. K.J. [1973] P.N.G.L.R. 93;

R. v. Marumyapusek [1973] P.N.G.L.R. 582;

Regina v. Nantisantjaba [1963] P.N.G.L.R. 148; and

The State v. Saikoro Norman [1979] P.N.G.L.R. 599 adopted.

Kaporonovski v. The Queen [1973] HCA 35; (1973) 133 C.L.R. 209; and

The State v. Marawa Kanaio [1979] P.N.G.L.R. 319 not followed.

N1>(3)      (Greville Smith J. not deciding). The “literal” rule of statutory interpretation is inappropriate to the circumstances of Papua New Guinea at this time.

N1>(4)      (Per Wilson J.). “The Supreme Court has (and should accept) a special responsibility to ‘assist in the development of our indigenous jurisprudence, adapted to the changing circumstances of Papua New Guinea’.” (Constitution, s. 21(1), s. 158(2)).

N1>(5)      (Per Andrew J.). “Provocation is to be judged by the standards of our community and not that of any other ...”

Reference

This was the reference pursuant to s. 41(1) of the Supreme Court Act 1975 of a question of law: the question being: “whether provocation under ss. 271, 272 of the Criminal Code Act 1974 is available as a complete defence to an accused person on a charge under s. 307 of the Criminal Code Act 1974 of unlawful killing”.

Counsel

R. S. O’Regan and K. A. Wilson, to put the affirmative case.

W. J. Karczewski, to put the negative case.

B. Sakora, for the Principal Legal Adviser.

Cur. adv. vult.

10 October 1980

WILSON J: Pursuant to s. 41(1) of the Supreme Court Act 1975, the Principal Legal Adviser desires the opinion of the Supreme Court on a point of law which arose in a case where an accused person was tried upon indictment and was acquitted on a charge of manslaughter. The acquittal was upon the basis that the accused had an absolute defence of provocation under s. 272 of the Criminal Code Act 1974. The question for this Court’s determination is whether provocation is available as a complete defence to an accused person on a charge of manslaughter under s. 307 of the Code.

Prior to 12th September, 1973, when Kaporonovski v. The Queen[dxxxii]¹ was decided in the High Court of Australia the law in Papua New Guinea was that provocation was available as a complete defence to an accused person on a charge of manslaughter. That such was the law was to be seen from a consideration of a number of decisions of single judges of the Supreme Court and one decision of the pre-Independence Full Court of the Supreme Court in R. v. K.J.[dxxxiii]². Those cases (including one which contained an expression of a contrary view) were discussed by Clarkson J. in R. v. Marumyapusek[dxxxiv]³, which decision was actually handed down after Kaporonovski v. The Queen (supra) was decided but before copies of the judgments delivered in the High Court of Australia became available. The cases are also discussed in Kaporonovski v. The Queen (supra) itself. In short those cases decided that the words “an offence of which assault is an element” means “an offence in the commission of which an assault is committed”.

Kaporonovski v. The Queen[dxxxv]⁴ decided (in a decision by a majority of three to two) that, in a case involving a charge of grievous bodily harm, the defence of provocation under ss. 268 and 269 of the Criminal Code (Qld.) — equivalent to ss. 271 and 272 of the Papua New Guinea Code — applied only to offences in the definition of which an assault is an element. It was not available merely because, on the evidence, the offence charged in a particular case was shown to have involved the commission of an assault. That case decided that the words “an offence of which an assault is an element” mean “an offence in the definition of which an assault is an element”.

Between 12th September, 1973, (when Kaporonovski v. The Queen (supra) was decided) and 16th September, 1975, (the date of Independence) the law in Papua New Guinea was that provocation was not available as a complete defence to an accused person on a charge of manslaughter under s. 307 of the Code, because manslaughter is not “an offence in the definition of which an assault is an element”. Kaporonovski v. The Queen (supra), being a decision of the High Court of Australia to which appeals from Papua New Guinea lay, was followed. Indeed, it was considered in a number of manslaughter cases to be an authority binding on courts in Papua New Guinea.

In the period since Independence there has been uncertainty in Papua New Guinea as to whether or not provocation is available as a complete defence to an accused person on a charge of manslaughter. In some cases single judges have felt persuaded by the decision in Kaporonovski v. The Queen[dxxxvi]⁵ and have followed it; one such case was The State v. Marawa Kanaio [dxxxvii]⁶. In other cases, single judges have not felt persuaded by the decision in Kaporonovski v. The Queen (supra) and have not followed it; one such case was The State v. Sakoro Norman [dxxxviii]⁷. This is the first time that the post-Independence Supreme Court has had an opportunity to consider this question and, by its decision, to clear up the uncertainty.

The fundamental point at issue in this case is whether or not the Supreme Court of Papua New Guinea should, in this branch of the criminal law, follow the persuasive decision of the High Court of Australia in Kaporonovski v. The Queen [dxxxix]⁸. I use the word “persuasive” advisedly, because, since Independence, no longer are decisions of the High Court of Australia binding upon the Supreme Court of Papua New Guinea (see Sch. 2.12 of the Constitution). Nevertheless, there is no doubting the high standing of the High Court of Australia and the desirability, as a general rule, of preserving uniformity; for these reasons, this court should be slow to differ from a persuasive authority of such weight. I would not characterize the views expressed by the majority in Kaporonovski v. The Queen (supra) as obiter dicta for the same reasons I expressed in my judgment in Premdas v. The Independent State of Papua New Guinea[dxl]⁹ in which I made reference to the distinction which I think needs to be drawn between judicial dicta and obiter dicta. The important point to make is that the real question of principle arising for decision in this case and as arose in that case would appear to be the same (see The Queen v. Kopal Wamne [dxli]¹⁰).

Little purpose will be be served by me canvassing all the reasons for and against each of the two interpretations of ss. 271 and 272. They have been fully and forcibly stated in numerous decisions in Papua New Guinea, in Queensland, in Western Australia and by the members of the Court of Criminal Appeal in Queensland in R. v. Kaporonovski[dxlii]¹¹ and by the members of the High Court of Australia in Kaporonovski v. The Queen [dxliii]¹². They have been the subject of full argument before this Court. With all due respect to those who have taken the contrary view, I have come to the conclusion that the majority decision in Kaporonovski v. The Queen (supra) should not be followed in Papua New Guinea; that case should no longer be used as authority in Papua New Guinea in support of the proposition as contended for by the Public Prosecutor. I have reached that conclusion for two main reasons. Those two reasons relate to the principles of statutory interpretation.

First, I find the reasoning of the minority in Kaporonovski v. The Queen[dxliv]¹³ more compelling than that of the majority. With all due respect to McTiernan A.C.J. and Menzies J., it cannot be reasonably said that it is “abundantly clear that s. 269 (our s. 272) has no application to a person unlawfully killing”. The number of authorities cited on both sides and the division of opinion within the High Court of Australia itself and the Court of Criminal Appeal in Queensland (from which the appeal to the High Court of Australia was brought) in particular, bear ample testimony to the fact that the words in s. 271 under scrutiny here, that is “an offence of which an assault is an element”, although perhaps having a “prima facie meaning” as contended for by Mr. Karczewski, are not “abundantly clear” and do not necessarily have the meaning that accords with the majority decision in Kaporonovski v. The Queen (supra).

It is to be noted that none of the judges who were in the majority in Kaporonovski v. The Queen[dxlv]¹⁴ stated that in his opinion the words were “clear and unambiguous”. McTiernan A.C.J. and Menzies J. were not prepared to go further than to give the words their “prima facie meaning”. Walsh J., in coming to the conclusion that the decision of the majority of the Court of Criminal Appeal should be upheld, impliedly adopted a literalist and narrow approach to his task of statutory interpretation.

In my judgment, those in the majority in Kaporonovski v. The Queen[dxlvi]¹⁵ did not appreciate at all, or sufficiently, the point made by Gibbs J. where his Honour stated[dxlvii]¹⁶:

“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.”

The majority in Kaporonovski v. The Queen (supra) overlooked the extent to which the “literal” rule of statutory interpretation, or the “prima facie meaning” rule (as it appears to have been called by McTiernan A.C.J. and Menzies J. in Kaporonovski v. The Queen (supra) or the “plain meaning” rule (as it came to be called in America), had been qualified by the “mischief” rule. In my view, the majority in Kaporonovski v. The Queen (supra) paid insufficient heed to the trend in the common law over the last thirty years away from the purely literal or grammatical construction of statutory provisions (see Lord Diplock’s speech in the House of Lords in Carter v. Bradbeer [dxlviii]¹⁷).

In Kaporonovski v. The Queen[dxlix]¹⁸ Walsh J. stated:

“I recognize that that view gives a restricted operation to s. 269. It is said also that it produces a capricious result ... It is for the Parliament, if it wishes to do so, to remedy any anomalies that may be found in the Code.”

With all due respect to Walsh J., his words sound to me like a voice from the past. In much the same way, some similar words used by the Employment Appeal Tribunal in Nothman v. Barnet London Borough Council[dl]¹⁹ sounded to Lord Denning like a voice from the past. The passage under consideration in that case was:

“Clearly someone has a duty to do something about this absurd and unjust situation. It may well be, however, that there is nothing we can do about it. We are bound to apply provisions of an Act of Parliament however absurd, out of date and unfair they may appear to be. The duty of making or altering the law is the function of Parliament and is not, as many mistaken persons seem to imagine, the privilege of the judges or the judicial tribunals.”

His Lordship said[dli]²⁰:

“I have read that passage at large because I wish to repudiate it. It sounds to me like a voice from the past. I heard many such words 25 years ago. It is the voice of the strict constructionist. It is the voice of those who go by the letter. It is the voice of those who adopt the strict literal and grammatical construction of the words, heedless of the consequences. Faced with glaring injustice, the judges are, it is said, impotent, incapable and sterile. Not so with us in this court. The literal method is now completely out of date. It has been replaced by the approach which Lord Diplock described as the ‘purposive approach’. He said so in Kammins Ballrooms Co. Ltd. v. Zenith Investments (Torquay) Ltd.[dlii]²¹; and it was recommended by Sir David Renton and his colleagues in their valuable report on the Preparation of Legislation (1975) Cmnd. 6053, pp. 135-148. In all cases now in the interpretation of statutes we adopt such a construction as will ‘promote the general legislative purpose’ underlying the provision. It is no longer necessary for the judges to wring their hands and say: ‘There is nothing we can do about it.’ Whenever the strict interpretation of a statute gives rise to an absurd and unjust situation, the judges can and should use their good sense to remedy it—by reading words in, if necessary—so as to do what Parliament would have done, had they had the situation in mind.”

I wish to repudiate what Walsh J. said in Kaporonovski v. The Queen (supra)[dliii]²². With all due respect, they are the words of a strict constructionist whose literal method is out of date. They are the words of one who has adopted “the strict, literal and grammatical construction of the words, heedless of the consequences”. Faced, as I am, with what I see as “glaring injustice” or, as Gibbs J. put it, “a quite capricious operation of the Code”, I would be neither impotent nor incapable nor sterile. The strict interpretation of the Criminal Code in this context giving rise to an anomalous and unjust situation, this Court can and should (on the authority of the Constitution itself and s. 158(2) in particular) remedy it so as to do what Parliament would have done had they had the situation in mind. I would hold, as Kearney J. (as he then was) did in The State v. Saikoro Norman[dliv]²³ that the words “an offence of which an assault is committed” mean “an offence in the commission of which an assault is committed”.

The preponderance of authority in England at the time of Independence supports the view that courts have power to reject the natural or ordinary or prima facie meaning of a word or phrase on the ground that it leads to some result which cannot reasonably be supposed to have been intended by the legislature (Pinner v. Everett[dlv]²⁴ per Lord Reid; Luke v. Inland Revenue Commissioners[dlvi]²⁵ per Lord Reid; Nimmo v. Alexander Cowan & Sons Ltd.[dlvii]²⁶ per Lord Wilberforce and Kammins Ballrooms Co. Ltd. v. Zenith Investments (Torquay) Ltd.[dlviii]²⁷ per Lord Diplock, cf. The Queen v. Judge of City of London Court[dlix]²⁸ per Lord Esher; Magor and St. Mellons Rural District Council v. Newport Corporation[dlx]²⁹ per Lord Simonds).

Since Kaporonovski v. The Queen[dlxi]³⁰ was decided, a very full statement of the law regarding statutory interpretation, showing the extent to which the “literal” rule has been qualified, was made by Lord Simon of Glaisdale in Maunsell v. Olins and Anor. [dlxii]³¹:

“... in statutes dealing with ordinary people in their everyday lives, the language is presumed to be used in its primary ordinary sense, unless this stultifies the purpose of the statute, or otherwise produces some injustice, absurdity, anomaly or contradiction, in which case some secondary ordinary sense may be preferred, so as to obviate the injustice, absurdity, anomaly or contradiction, or fulfil the purpose of the statute ...”

It is interesting to note that Lord Simon of Glaisdale made his speech in the House of Lords on 27th November, 1974, but ten months prior to Independence Day. The fact that Lord Simon’s statement occurs in a dissenting speech in no way detracts from the authoritative nature of that statement, which was made with the concurrence of Lord Diplock.

Secondly, even if the majority in Kaporonovski v. The Queen[dlxiii]³² were correct in deciding as a matter of statutory interpretation arising in Australia that the words “an offence of which an assault is an element” means an offence in the definition of which an assault is an element, the majority decision in Kaporonovski v. The Queen (supra) is based first and foremost upon a common law principle of statutory interpretation which, though perhaps appropriate to the circumstances of Australia, is inappropriate to the circumstances of Papua New Guinea at this time. The common law principle to which I am referring has as I have foreshadowed, been variously described as the “literal” rule or the “prima facie” meaning rule or the “plain meaning” rule or the “narrow” rule or the “restricted” rule; in contrast with the “fair and liberal meaning” rule or the “purposive” rule or the “ample meaning” rule or the “substantial meaning” rule or the “broad meaning” rule or the “extensive operation” rule or the “generous meaning” rule.

That the decision of McTiernan A.C.J. and Menzies J. in Kaporonovski v. The Queen[dlxiv]³³ was based upon the “literal” rule or an equivalent rule is to be seen from a reading of the judgment where their Honours stated:

“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.” (Emphasis mine.)

and from the judgment of Walsh J. where his Honour stated[dlxv]³⁴:

“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.” (Emphasis mine.)

Gibbs J. in the same case stated[dlxvi]³⁵:

“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[dlxvii]³⁶ 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.” (Emphasis mine.)

In this context it is important to understand what our Constitution has to say about the reception of common law principles.

Section 21 of the Constitution provides:

N2>“21.    PURPOSE OF SCHEDULE 2

(1)      The purpose of Schedule 2 (adoption, etc., of certain laws) and of the Act of the Parliament referred to in Section 20 (underlying law and pre-Independence statutes) is to assist in the development of our indigenous jurisprudence, adapted to the changing circumstances of Papua New Guinea.

(2)      For the purpose set out in Subsection (1), a Law Reform Commission shall be established in accordance with Schedule 2 (adoption, etc., of certain laws), and certain special responsibilities are imposed by that Schedule on the National Judicial System (and in particular on the Supreme Court and the National Court) and on the Law Reform Commission.”

It is clear, therefore, that the Supreme Court has (and should accept) a special responsibility to “assist in the development of our indigenous jurisprudence, adapted to the changing circumstances of Papua New Guinea”.

Schedule 2.2(1) of the Constitution provides:

N2>“Sch. 2.2.      ADOPTION OF A COMMON LAW

(1)      Subject to this Part, the principles and rules that formed, immediately before Independence Day, the principles and rules of common law and equity in England are adopted, and shall be applied and enforced, as part of the underlying law, except if, and to the extent that:

(a)      they are inconsistent with a Constitutional Law or a statute; or

(b)      they are inapplicable or inappropriate to the circumstances of the country from time to time; or

(c)      in their application to any particular matter they are inconsistent with custom as adopted by Part 1”

Schedule 2.4 of the Constitution provides:

N2>“Sch. 2.4.      JUDICIAL DEVELOPMENT OF THE UNDERLYING LAW

In all cases, it is the duty of the National Judicial System, and especially of the Supreme Court and the National Court, to ensure that, with due regard to the need for consistency, the underlying law develops as a coherent system in a manner that is appropriate to the circumstances of the country from time to time, except insofar as it would not be proper to do so by judicial act.”

Before I complete my references to the provisions of the Constitution it is appropriate to mention s. 158(2) which provides: “158(2) In interpreting the law the courts shall give paramount consideration to the dispensation of justice.”

In expressing my opinion, which I now do, that the “literal” rule of statutory interpretation is inappropriate to the circumstances of this country at this time, I have not overlooked the need for consistency or uniformity as between neighbouring jurisdictions (in this context I am referring to Papua New Guinea and Australia), and I am conscious of the special responsibility which is imposed on the Supreme Court “to assist in the development of our indigenous jurisprudence adapted to the changing circumstances of Papua New Guinea”.

Why is the “literal” rule of statutory interpretation inappropriate to the circumstances of this country at this time? In my judgment there is no place in a developing country where the courts, as well as the Law Reform Commission, are given special responsibilities in the process of development, for the narrow interpretation of statutes without adequate regard to the social purpose of particular legislation. Development is difficult to achieve if courts adopt too conservative an approach to the interpretation of statutes. There has been a tendency in our National Judicial System, less evident in some recent decisions of the courts but still perceptible, to over-emphasize the literal meaning of a provision at the expense of the meaning to be derived from other possible contexts; the latter including the application of the “mischief” rule, the recognition of the general legislative purpose, as well as the obligations laid down under the Constitution such as, for example, the obligation upon the courts in interpreting the law to give “paramount consideration to the dispensation of justice” (s. 158(2) of the Constitution). The purpose of the law in the Criminal Code regarding provocation is to give to a person who has been provoked into assaulting another and thereby into committing a crime a defence in certain circumstances.

There is, therefore, no place for a literalist approach to statutory interpretation in the law of Papua New Guinea and in relation to the Criminal Code in particular; a fortiori, as here, where the application of the majority decision in Kaporonovski v. The Queen[dlxviii]³⁷ in this case would justifiably bring with it the charge of narrow literalism. The letter of the law should not be allowed to prevail over the spirit of the law in a case of statutory interpretation such as this, especially where, as I see it, injustice will result if our decision is otherwise.

In Seaford Court Estates Ltd. v. Asher [dlxix]³⁸, a case which was controversial at the time when it was decided but which has become widely accepted as of late Denning L.J. (as he then was) used a homely metaphor when he said:

“A judge should ask himself the question: If the makers of the Act had themselves come across this ruck in the texture of it, how would they have straightened it out? He must then do as they would have done. A judge must not alter the material of which it is woven, but he can and should iron out the creases.”

In answering the question posed in this case in the way I have, I have sought to do as his Lordship suggested. By answering the question in the affirmative “the material” of the Code is not “altered”; it is hoped that “the creases” will be seen to have been “ironed out”. The authority for the Supreme Court of Papua New Guinea to accept the role of a judicial launderer as so picturesquely described by Denning L.J., if not to be found in the persuasiveness of his Lordship’s reasoning expressed in numerous cases spanning more than thirty years, is to be found in the Constitution itself and in s. 158(2) in particular. I think that this Court should decide not to follow the decision of the High Court of Australia in Kaporonovski v. The Queen [dlxx]³⁹.

For all these reasons I would answer the question in the affirmative and determine that provocation is available as a complete defence to an accused person on a charge of manslaughter under s. 307 of the Criminal Code.

GREVILLE SMITH J: The contention of the Public Solicitor with which this Court is concerned is, stated simply, that a person who, not in self defence, and without intending to cause death or grievous bodily harm, assaults another person, and thereby does cause the death of that other person is, by law, totally absolved from any criminal responsibility in respect of that death, so long as the State is, once a question of provocation (which can be constituted by words as well as acts) has been raised on the evidence, unable to prove beyond any reasonable doubt that the accused was not given provocation as defined in s. 271 or, if he was, that the accused was not thereby deprived of self control, or that the accused did not act on that provocation, or did not act “on the sudden and before there was time for his passion to cool”, or that the force used was disproportionate to the provocation, or that the force used was such as was likely to cause death or grievous bodily harm. A person who causes death under these circumstances is entitled to be acquitted and to walk out of court a free man. That is the contention.

The contention of the State, on the other hand, is that s. 271 does not apply to a killing (not containing the elements of wilful murder or murder) which results from an assault and that therefore a person who so causes the death of another by an assault is guilty of the offence of manslaughter, with the result that the court may impose such penalty as the particular circumstances of the case and other more general relevant considerations appear to the court to require. The court would be in control, and the matter of provocation would be a matter going to penalty.

I have had the opportunity of reading the reasons and the conclusions in this much mooted and contentious matter of my learned brethren on the court, Wilson and Andrew JJ. In the words hallowed by tradition, I have the misfortune to disagree.

At the present time in this country ready resort to personal violence is quite appallingly prevalent and, furthermore, is increasing. Every day the courts are confronted with cases of serious violence including an inordinate number of cases of unintentional killing by intentional violent acts. Often these are cases of a wife struck in anger, in the private confines of the household, whose diseased spleen ruptures so that she dies, or who otherwise dies, or of one man in anger striking another, such as with a ready-to-hand piece of timber, a blow that is not intended to kill but which does. In these circumstances is it not always better that there should be some penalty, some manifestation of community condemnation of the act of violence, of the killing, as such, rather than that the court should be compelled to perform the public act of immediate and total absolution?

I think it is better. Often it has, in my experience, been manifest that the accused himself feels it is better, feels the rightness of it, and so also in my perception and opinion, almost always do the folk of those immediately concerned, and the immediate community. And, in my view, this is the prevailing attitude of the community at large.

They are not alone. Provocation is not a defence to a charge of manslaughter in Australia, either in the Criminal Code States or in those States which depend upon the Common Law, or in the United Kingdom or New Zealand. Nor is it a defence to an equivalent charge under the Indian Penal Code, the Canadian Criminal Code, or the Federal Criminal Code of the United States of America, nor is it a defence to manslaughter under the Draft Criminal Code for the Australian territories submitted to the Attorney-General (the Hon. N. H. Bowen, Q.C., M.P.) by the Law Council of Australia, together with Commentary by the Council’s Coordinating Committee, February 1969. That is as far as I have been able to take my researches, but the results are significant enough. Guilt in criminal law depends on consequences as well as the degree of moral culpability.

In my opinion the law as it will be pronounced by the majority of this Court will not tend, as is the abiding concern of all the courts of this land, to abate violence, rather the contrary. In cases where imprisonment for six months or a year or more would have been regarded as the end of the matter, matters are likely not infrequently to be settled in other ways. The courts and the law will be seen to countenance violence in such situations, and the fine distinctions necessarily drawn by the courts will often not, I think, be perceived or drawn by others. If the courts are not seen to exact some retribution, retribution will be exacted otherwise.

Where the criminal law by legislation further set its face against the infliction of physical injury and death and the creation of danger thereof, by means of the “dangerous driving” category of offences not too long ago inserted in the Criminal Code, it now by judicial determination turns its back in another grave area.

There will be those who will say that this development in our criminal law does no more than absolve the blameless. The onus and exigencies of proof being what they are, I myself would doubt whether more than a few who will be acquitted could be truly regarded as blameless and those few would receive substantial justice under the law as the majority in the High Court in Kaporonovski’s case[dlxxi]⁴⁰ viewed it. In any event there must be some yielding of concern for the particular individual charged to concern for others, and indeed this does occur, in the criminal law as elsewhere. Every time a judge says, in passing sentence, that he is imposing a sentence with an eye to general deterrence, rather than personal deterrence, he is saying, in effect, that the sentence is higher than it would be if sole regard were had to matters personal to the accused.

In my view it will be an unfortunate thing that, when an accused who has unintentionally killed by an intentional act of assault successfully pleads the defence of provocation, the courts will appear totally to acquiesce in the permissibility of such an act, notwithstanding the inherent danger of all acts of violence against another person, and will not be able to pass any sentence with an eye to general condemnation and deterrence.

For the foregoing reasons, if this had been a matter of impenetrable obscurity, I would have felt bound to hesitate long before attributing to the legislature the intention that my learned brethren on this court have felt constrained to find. As it happens, and as will be seen hereinafter, I think there is no obscurity, particularly in this jurisdiction.

In Regina v. Nantisantjaba[dlxxii]⁴¹ where the charge was wilful murder, Smithers J. said as follows concerning the section of the Criminal Code now numbered 271, then numbered 268:

“Section 268 is a statement of the meaning to be given to the word ‘provocation’ where it is used ‘with reference to an offence of which an assault is an element’. The phrase ‘elements of an offence’ is normally used to mean the legal constituents of an offence. See Menzies, J. and Dixon, C.J. in R. v. Reynhoudt[dlxxiii]⁴² and indeed the letter of Sir Samuel Griffith himself dated 29th October, 1897, and set out in Carter’s Annotations to the Criminal Code at p. 42. See also Scholl, J. in R. v. Carter [dlxxiv]⁴³.

Thus in normal legal parlance the elements of wilful murder under the Code are that death was caused by the accused directly or indirectly with an intention to kill or cause grievous bodily harm and in such circumstances that the causing of death was unlawful, that is, not justified, authorized or excused by law. That is, so to speak, the pleading of the Crown.

It is true that in cases where murder is alleged an assault is commonly the cause of death. But all the elements of the offence of murder will be present in many cases where there is no assault. On the other hand, where death is caused by an assault, proof of the assault is merely proof of a fact from which by itself, or in conjunction with other facts, the inference may be drawn that one of the elements, such as intent, cause, or unlawfulness, is present.

It seems to me no more apt to say that an assault is an element of murder than to say that driving a motor car at high speed is an element of manslaughter.

It would be strange indeed that the learned authors of the Code would use the expression under discussion in a loose or, perhaps one should say, broad way to mean ‘an offence in the commission of which an assault may be committed’.”

With respect, I agree. His Honour, however then went on to say, for reasons which will appear shortly, as follows:

“For myself, therefore, I would be unwilling to accept the view that the expression in question is used in this broad way unless such a view was inescapable in the light of the other provisions of the Code. I think it is inescapable.”

In Regina v. K.J. and Anor.[dlxxv]⁴⁴ also a wilful murder case, the Supreme Court of Papua New Guinea (Minogue C.J. and Kelly J., Prentice J. not deciding) said as follows:

“We would agree with the conclusion of Smithers J. in R. v. Nantisantjaba[dlxxvi]⁴⁵ that the words in s. 268 ‘with reference to an offence of which an assault is an element’ are to be interpreted as ‘with reference to an offence in the commission of which an assault may be committed’, and the passage in his judgment which immediately follows in our view sets out the position admirably. The learned judge there said:

‘This seems a very reasonable state of affairs because it could hardly be thought that a Code which was designed to dispose as far as possible with reference to the Common Law, should suddenly revert to the Common Law for the purpose of one aspect of the subject of provocation, a subject to which the authors had given detailed consideration and devised novel provisions. The other alternative would be that for the purpose of s. 304 one was relegated to an ordinary dictionary meaning. This seems equally unlikely for the same reason and also because the subject matter is one of so much technical legal learning.’ ”

In R. v. Marumyapusek [dlxxvii]⁴⁶, a case of manslaughter, Clarkson J. said:

“But in my view the proper construction of ss. 268 and 269 in Papua New Guinea is finally settled by the decision of the Full Court in R. v. K.J. and Anor.[dlxxviii]⁴⁷”

The line of authority represented by the foregoing cases was, as it will be seen, in reaction to the alternative of defining the term “provocation” as used in the section of the Criminal Code headed “KILLING ON PROVOCATION” (now s. 308) by importing the meaning of such term as used at common law or by using the “dictionary” meaning of the word. However, that section has been amended and now reads as follows:

“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 within the meaning of s. 271, and before there is time for his passion to cool, he is guilty of manslaughter only.”

The emphasis is mine, and the words emphasized were inserted by the amendment. Otherwise the section remained unchanged.

The enactment of this amendment in my opinion assumes and implies that the words in s. 271 “used with reference to an offence of which an assault is an element” do not make such defence available in cases of wilful murder and murder, obviously because as Smithers J. so clearly recognized in Regina v. Nantisantjaba[dlxxix]⁴⁸ neither offence is, properly so called, “an offence of which an assault is an element”, and therefore proceeds to extend the application of the definition contained in s. 271 of the term provocation when used with reference to wilful murder and murder also.

The same result might have been achieved by amending s. 271 to read:

“The term provocation used with reference to offences of wilful murder and murder and with reference to any offence of which an assault is an element ...”

In s. 271 as thus amended the words at the end of the first paragraph namely: “... and to induce him to assault the person by whom the act or insult is done or offered” would remain appropriate because by its nature a defence of provocation can only apply to kinds of offences which would in the absence of provocation, amount to wilful murder or murder effected by means of an assault.

In my view the presence of the added words in s. 308 confirm that the words “an offence of which an assault is an element” are used in s. 271 in their natural meaning as seen by Smithers J. in Regina v. Nantisantjaba[dlxxx]⁴⁹ and do not bear the extended meaning which would incorporate without further provision into that expression wilful murder, murder, manslaughter, grievous bodily harm and unlawful wounding, otherwise the amendment would have been unnecessary. It is to be noted that when amending s. 308 the legislature made no alteration extending provocation to manslaughter, grievous bodily harm or unlawfully wounding, a palpable intimation, one would have thought, that the legislature intended that a defence of provocation should not apply to those offences.

The decision of the High Court of Australia in Kaporonovski v. The Queen[dlxxxi]⁵⁰ that, specifically in the case of grievous bodily harm, and in effect in cases of manslaughter and unlawfully wounding, there is no defence of provocation under the Criminal Code of Queensland, is, in my opinion, a right one and is confirmed and strengthened in its reasoning as applied to the Criminal Code of Papua New Guinea by the present formulation in this country of s. 308. The amendment to that section in my opinion removed the objection as seen by Smithers J., and relied on by the majority of the Full Court in the passage in Regina v. K.J. and Another[dlxxxii]⁵¹ set out hereinbefore to giving the words “an offence of which an assault is an element” in s. 271 what Smithers J. saw as their natural meaning and which I, with respect, regard as their natural meaning and their proper meaning as used in that section.

In my opinion there is as a matter of law in this country no defence of provocation to a charge of manslaughter.

ANDREW J: This is a reference on a point of law by the Principal Legal Adviser exercising his powers of reference under s. 41 of the Supreme Court Act.

In The State v. Saikoro Norman [dlxxxiii]⁵², his Honour, Mr. Justice Kearney held that provocation within the meaning of s. 271 and s. 272 of the Criminal Code is available as an absolute defence to a charge of manslaughter under the Code. Arising from that decision the following point is referred: “whether provocation under ss. 271, 272 of the Criminal Code Act 1974 is available as a complete defence to an accused person on a charge under s. 307 Criminal Code Act 1974 of unlawful killing”.

This question is one that has occasioned considerable controversy. The answer to it depends upon the proper construction of ss. 271 and 272 of the Code which appear in Ch. 26 (“Assaults and Violence to the person generally: Justification and Excuse”).

In Papua New Guinea the former Supreme Court has consistently held that s. 272 does make provocation a defence to manslaughter. So also by implication has the Court of Criminal Appeal in Western Australia: Mehemet Ali v. The Queen [dlxxxiv]⁵³. However the Queensland Court of Criminal Appeal in R. v. Kaporonovski[dlxxxv]⁵⁴ and the High Court of Australia in Kaporonovski v. The Queen[dlxxxvi]⁵⁵ have, by implication, ruled that it does not.

The overwhelming view in our jurisdiction has been that s. 272 had the effect that provocation, as defined in s. 271 was, subject to the conditions stated in s. 272 a defence to a charge of manslaughter, unlawfully doing grievous bodily harm or unlawful wounding, where the death, grievous bodily harm or wounding has been caused by the assault committed by the accused. 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. The contending view and in my opinion, the restricted view, of the majority in Kaporonovski v. The Queen [dlxxxvii]⁵⁶, was that the defence of provocation under ss. 271 and 272 applies only to offences in the definition of which an assault is an element; it is not available merely because, on the evidence, the offence charged in a particular case is shown to have involved the commission of an assault.

In resolving this striking conflict of judicial opinion as it should be resolved in the application of the law of provocation in Papua New Guinea, I think that this Court must first look at the whole circumstances of the country and it is important to realize that what might amount to provocation here may not be regarded as such in Australia and other jurisdictions. In my view this is the tenor of the important submissions of the Law Reform Commission which have been placed before this Court.

The elasticity which should properly govern the approach to this question of provocation was emphasized by Viscount Simon in delivering judgment in which the learned law lords concurred in Holmes v. Director of Public Prosecutions[dlxxxviii]⁵⁷:

“There are two observations which I desire to make in conclusion. The first is that the application of common law principles in matters such as this must to some extent be controlled by the evolution of society. For example, the instance given by Blackstone (Commentaries, Book IV., p. 191, citing an illustration in Kelyng p. 135), that if a man’s nose was pulled and he thereupon struck his aggressor so as to kill him, this was only manslaughter, may very well represent the natural feelings of a past time, but I should doubt very much whether such a view should necessarily be taken nowadays. The injury done to a man’s sense of honour by minor physical assaults may well be differently estimated in differing ages. And, in the same way, one can imagine in these days at any rate, words of a vile character which might be calculated to deprive a reasonable man of his customary self-control even more than would an act of physical violence. But, on the other hand, as society advances, it ought to call for a higher measure of self-control in all cases.”

See also The Queen v. Awabe Pala [dlxxxix]⁵⁸.

I have cited the above passage to illustrate that provocation is to be judged by the standards of our community and not that of any other and that as there is such a divergence of judicial opinion between the courts in Papua New Guinea and Australia which bear on this question it should be remembered that we are dealing with provocation in a different cultural environment to that of other countries. It has long been the law in Papua New Guinea that insulting words may amount to provocation whereas the view that words alone cannot be relied upon as provocation has hardened since the 17th century in Western communities.

This Court must also resolve the point of law raised by constitutional requirements to develop the underlying law as appropriate to the circumstances of the country: the Constitution ss. 20 and 21 and Sch. 2.

The overwhelming majority of judges who have considered the point in this jurisdiction have favoured the view that provocation is a defence to manslaughter. See R. v. Nantisantjaba[dxc]⁵⁹ per Smithers J.; R. v. Iawe-Mama[dxci]⁶⁰ per Minogue J. (as he then was); R. v. Bauoro-Dame[dxcii]⁶¹ per Frost J. (as he then was); Reg. v. Panuvo-Inapero[dxciii]⁶² per Ollerenshaw J.; Reg. v. Anton Komalko[dxciv]⁶³ and R. v. Marumyapusek[dxcv]⁶⁴ per Clarkson J. and The State v. Saikoro Norman[dxcvi]⁶⁵ per Kearney J.

In addition, there is the important decision of the former Full Court of the Supreme Court in R. v. K.J. and Anor.[dxcvii]⁶⁶ where the court approved the decision in R. v. Nantisantjaba[dxcviii]⁶⁷ that the words in s. 271 “with reference to an offence of which an assault is an element” are to be interpreted as “with reference to an offence in the commission of which an assault may be committed”.

All of those decisions are pre-Independence Supreme Court decisions and are not binding on this Court. However there would have to be, in my opinion, very strong reasons for this Court to abandon what has until recently, been regarded as a settled interpretation on this aspect of the Code.

This conflict of judicial opinion arose from the not unrelated question concerning the application of ss. 271 and 272 in relation to the meaning of “provocation” in s. 308. Its relevance to the present cases is that if the definition contained in s. 271 applied to “provocation” in s. 308; that would afford support to the view that the words “an offence of which an assault is an element” in s. 271, do not limit the application of that section to offences of which an assault is, by definition, a necessary element. The Queensland Court of Criminal Appeal in Reg. v. Herlihy[dxcix]⁶⁸ held by a majority that “provocation” in s. 304 (our s. 308) was to be understood according to its meaning at common law. However in Papua New Guinea and Western Australia, where a Code in similar terms is in force, the decided cases strongly supported the view that “provocation” in s. 308 is to be interpreted as defined in s. 271” Mehemet Ali v. The Queen[dc]⁶⁹ and R. v. K.J.[dci]⁷⁰ etc.

That question however has now been resolved in Papua New Guinea because s. 308 has been amended such that “provocation” is there defined by s. 271. To my mind, that is the first indication that the decision in Kaporonovski v. The Queen[dcii]⁷¹ must be treated with caution, because there has been no such amendment to the Queensland Code s. 304 (our s. 308) and that case is to some extent dealing with different legislation. Furthermore, because s. 271 does apply to provocation in s. 308 I am of the view that the words “an offence of which an assault is an element” in s. 271 do not limit the application of that section to offences of which an assault is, by definition, a necessary element. Further, again, when the legislature provided that s. 271 defined “provocation” for the purposes of s. 308 it was thus applying the definition of provocation in s. 271 to the offences of wilful murder and murder such that those offences might in certain circumstances be reduced to manslaughter. This necessarily means that wilful murder and manslaughter are offences of which an assault may be an element because those are the words which appear in s. 271. This also would afford support to the view that the words “an offence of which an assault is an element” in s. 271 do not limit the application of that section to offences of which an assault is, by definition, a necessary element. And I think that it is a valid argument that because s. 271 was applied to unlawful killings with circumstances of aggravation (that is wilful murder and murder) the legislature must be taken to have recognised that it applied also to unlawful homicide such as manslaughter.

It is of course clear that the definition in s. 271 must govern the word “provocation” in s. 272. It is s. 272 which operates to provide a defence of provocation as defined in the preceding section 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: See the dissenting judgment of Gibbs J. in Kaporonovski v. The Queen[dciii]⁷².

I turn to a consideration of the majority judgment in Kaporonovski’s case (supra) and the consideration and weight to be accorded to a judgment of the High Court in our jurisdiction.

In Queensland and in the High Court in Kaporonovski’s case (supra) judicial opinion has been almost evenly divided as to whether or not, under the Criminal Code, provocation is a complete defence to manslaughter.

I think with the greatest respect, it is fair to say that Kaporonovski’s case (supra) is a controversial one and that on its own findings it produces a capricious and illogical result. I think it significant that the decision was by majority (McTiernan A.J., Menzies and Walsh JJ.) and that the minority included the persuasive reasoning of Gibbs J., who, with the greatest respect, could also fairly be said to have the foremost experience of the Criminal Code.

In Kaporonovski’s case[dciv]⁷³ the offence charged was unlawfully doing grievous bodily harm and at most the majority decided only inferentially that provocation was not available as a defence to manslaughter. Indeed Walsh J. who was a principal of the majority was careful to indicate that he was not deciding the cognate question of whether provocation applied to manslaughter. He directed his decision to whether that defence was available in an offence of unlawfully doing grievous bodily harm. Clearly, the majority view: “that the defence of provocation under ss. 267 and 269 (our ss. 271 and 272) of the Code applies only to offences in the definition of which an assault is an element; it is not available merely because on the evidence, the offence charged in a particular case is shown to have involved the commission of an assault”, produces a capricious result. I agree with Kearney J. in The State v. Saikoro Norman [dcv]⁷⁴, that it leads to needless absurdities in the criminal law. It has been said that if A, under provocation by B, punches B on the nose without breaking the skin, he could be charged with assault and would have a defence under s. 272. On the other hand, if A in the same circumstances, punches B on the nose, and breaks the skin, he could be charged with unlawful wounding and would not be able to raise s. 272.

The Constitution Sch. 2.4 provides as follows:

N2>“Sch. 2.4.      JUDICIAL DEVELOPMENT OF THE UNDERLYING LAW

In all cases, it is the duty of the National Judicial System, and especially of the Supreme Court and the National Court, to ensure that, with due regard to the need for consistency, the underlying law develops as a coherent system in a manner that is appropriate to the circumstances of the country from time to time, except insofar as it would not be proper to do so by judicial act.”

With this in mind, I am quite unable to see why this Court should now abandon the view which has been developed in the indigenous jurisprudence of Papua New Guinea and follow the obiter view of the majority of the High Court in Kaporonovski v. The Queen[dcvi]⁷⁵ and thereby abandon consistency and develop the law as an incoherent system.

I agree with the judgment of Wilson J. that it is inappropriate to apply a “literal” rule of statutory interpretation in the circumstances of this reference.

In my opinion, the overwhelming view in our jurisdiction by those judges with so great experience in the application of the Code to the circumstances of Papua New Guinea, that: “s. 272 had the effect that provocation, as defined in s. 271, was, subject to the conditions stated in s. 272, a defence to a charge of manslaughter, unlawfully doing grievous bodily harm, or unlawful wounding, where the death, grievous bodily harm or wounding had been caused by an assault committed by the accused”, was the correct view of the law and entirely appropriate to the circumstances of Papua New Guinea.

I have already indicated that the decision in Kaporonovski v. The Queen[dcvii]⁷⁶ is to be approached with caution as its findings are based on different legislation to our own and on a broader basis because it is dealing with the concept of provocation in a different cultural environment.

The High Court of Australia was once, but is no longer, in the curial hierarchy of our jurisdiction. Under the Constitution foreign precedents may be persuasive and may be accorded a degree of deference. Decisions and obiter dicta of the High Court of Australia would always be accorded a high degree of deference because of the standing and quality of that court. But in my view for the reasons already given and in the different circumstances of Papua New Guinea I shall not depart from the law on this matter as it has long been laid down by this Court. Henceforth, in my opinion, Kaporonovski’s case[dcviii]⁷⁷ should not be used as authority in Papua New Guinea. I should add however that I am confining these remarks to that part of the judgment in relation to provocation and not to the other question decided by that case, namely the applicability of s. 23 of the Code, which I regard as a correct statement of the law and upon which there was no dissention.

It follows from what I have said that the resolution of this controversial question now before the court is to be resolved, inter alia, by reference to the development of the underlying law by a construction which accords with customary notions and the circumstances of Papua New Guinea. In that vein I see a further reason for answering the question in the positive as the submissions of the Principal Legal Adviser and of the Law Reform Commission. In any question involving the circumstances and conditions of the country this Court would pay great deference to those submissions. I am therefore reinforced in what I have said by those submissions, that in Papua New Guinea provocation is in certain circumstances a complete defence to manslaughter.

I do not propose to analyze all of the cases to which I have referred. I take the law to have been settled in R. v. K.J. and Anor.[dcix]⁷⁸ and to have been correctly stated in R. v. Marumyapusek[dcx]⁷⁹ per Clarkson J. and in the decision which has led to this reference namely The State v. Saikoro Norman per Kearney J. (as he then was). As his Honour said in that latter case[dcxi]⁸⁰:

“I prefer the views of Gibbs J. in Kaporonovski [dcxii]⁸¹. The ‘definition’ approach in my opinion leads to needless absurdities in the criminal law, as illustrated by Lucas J. in the Queensland Court of Criminal Appeal in R. v. Kaporonovski ((1972) Qd. R. 465 at p. 513) though his Honour was not impressed with that argument. I think it was this aspect which Clarkson J. had in mind in the penultimate paragraph of his judgment in R. v. Marumyapusek[dcxiii]⁸² which, with respect, I adopt:

‘I prefer the construction whereby liability for punishment is determined by ascertaining whether the use of force is justified or excused, and not by ascertaining whether the nose bleeds or whether the provoker is, unknown to anyone, a haemophiliac.’

Or, I might add, the possessor of an enlarged spleen.

That seems to me to be a common sense approach and would develop the law upon a rational principle. I appreciate that rational principle may not count for a great deal in the law of homicide; it is no seamless web of logic. Nevertheless, as Aristotle said: ‘... the matter in dispute is not whether the thing happened or not, but its justice.’ (Nicomachean Ethics, Book V, 8.) So far as concerns the criminal defendant, whether or not the victim dies from his assault does not alter in any way the situation which led to that assault.

It follows that I consider that the absolute defence under s. 272 is available in appropriate circumstances, upon a charge of manslaughter; that is to say, I consider that ‘offence’ and ‘element’ in the phrase quoted from s. 271 of the Criminal Code relate to the actual circumstances of the particular case before the court. I do not think s. 272 is limited to cases where the offence charged includes, by definition, an assault.”

For all of the foregoing reasons I would answer the question as follows:

Provocation under ss. 271, 272 of the Criminal Code 1974 is available as a complete defence to an accused person on a charge under s. 307 of the Criminal Code of unlawful killing.

In conclusion I wish to say that by answering the question in this way, that provocation does apply to manslaughter, it applies with the very severe restrictions contained in s. 272 itself, namely that the force used must not be disproportionate to the provocation, and is not intended, and is not such as is likely, to cause death or grievous bodily harm.

Question answered: By majority, that provocation is available as a complete defence to an accused person on a charge of manslaughter under s. 307 of the Criminal Code.

Solicitor for the affirmative case: D. J. McDermott, Acting Public Solicitor.

Solicitor for the negative case: The Public Prosecutor.

Principal Legal Adviser: C. Maino-Aoae.

[dxxxii] (1973) 133 C.L.R. 209; (1973) 47 A.L.J.R. 472.

[dxxxiii] [1973] P.N.G.L.R. 93.

[dxxxiv] [1973] P.N.G.L.R. 582.

[dxxxv] (1973) 133 C.L.R. 209; (1973) 47 A.L.J.R. 472.

[dxxxvi] (1973) 133 C.L.R. 209; (1973) 47 A.L.J.R.

[dxxxvii] [1979] P.N.G.L.R. 319.

[dxxxviii] [1979] P.N.G.L.R. 599.

[dxxxix] (1973) 133 C.L.R. 209; (1973) 47 A.L.J.R. 472.

[dxl] [1979] P.N.G.L.R. 329.

[dxli] Unreported judgment No. 809, October 1974.

[dxlii] [1972] Qd. R. 465.

[dxliii] (1973) 133 C.L.R. 209; (1973) 47 A.L.J.R. 472.

[dxliv] (1973) 133 C.L.R. 209; (1973) 47 A.L.J.R. 472.

[dxlv] (1973) 133 C.L.R. 209; (1973) 47 A.L.J.R. 472.

[dxlvi] (1973) 133 C.L.R. 209; (1973) 47 A.L.J.R. 472.

[dxlvii] (1973) 133 C.L.R. at p. 238.

[dxlviii] [1975] 3 All E.R. 158.

[dxlix] [1973] HCA 35; (1973) 133 C.L.R. 209 at pp. 222-3.

[dl] [1978] 1 W.L.R. 220 at p. 222.

[dli] [1978] 1 W.L.R. at p. 228.

[dlii] [1971] A.C. 850 at p. 899.

[dliii] [1978] 1 W.L.R. at pp. 222-3.

[dliv] [1979] P.N.G.L.R. 599.

[dlv] [1969] 3 All E.R. 257 at p. 258.

[dlvi] [1963] A.C. 557.

[dlvii] [1968] A.C. 107 at p. 130.

[dlviii] [1971] A.C. 850 at p. 881.

[dlix] [1892] UKLawRpKQB 9; [1892] 1 Q.B. 273 at p. 290.

[dlx] [1951] 2 All E.R. 839 at p. 841.

[dlxi] (1973) 133 C.L.R. 209; (1973) 47 A.L.J.R. 472.

[dlxii] [1975] A.C. 373 at p. 391.

[dlxiii] (1973) 133 C.L.R. 209; (1973) 47 A.L.J.R. 472.

[dlxiv] [1973] HCA 35; (1973) 133 C.L.R. 209 at p. 218.

[dlxv] (1973) 133 C.L.R. at p. 222-23.

[dlxvi] (1973) 133 C.L.R. at p. 236.

[dlxvii] [1962] Qd. R. 398.

[dlxviii] (1973) 133 C.L.R. 209; (1973) 47 A.L.J.R. 472.

[dlxix] [1949] 2 K.B. 481 at p. 499.

[dlxx] (1973) 133 C.L.R. 209; (1973) 47 A.L.J.R. 472.

[dlxxi] (1973) 133 C.L.R. 209; (1973) 47 A.L.J.R. 472.

[dlxxii] [1963] P. & N.G.L.R. 148 at p. 150.

[dlxxiii] [1962] HCA 23; (1962) 107 C.L.R. 381 at p. 402.

[dlxxiv] [1959] V.R. 105.

[dlxxv] [1973] P.N.G.L.R. 93 at p. 100.

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

[dlxxvii] [1973] P.N.G.L.R. 582 at p. 585.

[dlxxviii] [1973] P.N.G.L.R. 93.

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

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

[dlxxxi] (1973) 133 C.L.R. 209; (1973) 47 A.L.J.R. 472.

[dlxxxii] [1973] P.N.G.L.R. 93.

[dlxxxiii] [1979] P.N.G.L.R. 599.

[dlxxxiv] (1957) 59 W.A.L.R. 28.

[dlxxxv] [1972] Qd. R. 465.

[dlxxxvi] (1973) 133 C.L.R. 209; (1973) 47 A.L.J.R. 472.

[dlxxxvii] (1973) 133 C.L.R. 209; (1973) 47 A.L.J.R. 472.

[dlxxxviii] [1946] A.C. 588, at pp. 600-1.

[dlxxxix] Unreported judgment No. 170 of 1960.

[dxc] [1963] P. & N.G.L.R. 148 at p. 151.

[dxci] [1965-66] P. & N.G.L.R. 96 at p. 101.

[dxcii] [1965-66] P. & N.G.L.R. 201 at p. 204.

[dxciii] Unreported judgment 1966. See 1970 1 Mel. L.J. 60.

[dxciv] Unreported judgment 1969. See 1970 1 Mel. L.J. 61.

[dxcv] [1973] P.N.G.L.R. 582.

[dxcvi] [1979] P.N.G.L.R. 599.

[dxcvii] [1973] P.N.G.L.R. 93.

[dxcviii] [1963] P. & N.G.L.R. 148 at p. 151.

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

[dc] (1957) 59 W.A.L.R. 28.

[dci] [1973] P.N.G.L.R. 93.

[dcii] (1973) 133 C.L.R. 209; (1973) 47 A.L.J.R. 472.

[dciii] (1973) 133 C.L.R. 209; (1973) 47 A.L.J.R. 472.

[dciv] (1973) 133 C.L.R. 209; (1973) 47 A.L.J.R. 472.

[dcv] [1979] P.N.G.L.R. 599.

[dcvi] (1973) 133 C.L.R. 209; (1973) 47 A.L.J.R. 472.

[dcvii] (1973) 133 C.L.R. 209; (1973) 47 A.L.J.R. 472.

[dcviii] (1973) 133 C.L.R. 209; (1973) 47 A.L.J.R. 472.

[dcix] [1973] P.N.G.L.R. 93.

[dcx] [1973] P.N.G.L.R. 582.

[dcxi] [1973] P.N.G.L.R. 582.

[dcxii] (1973) 133 C.L.R. at pp. 236-40.

[dcxiii] [1973] P.N.G.L.R. at p. 589.