Moffa v The Queen [1977] HCA 14

High Court of Australia Barwick C.J. Gibbs, Stephen, Mason and Murphy JJ. Moffa v The Queen [1977] HCA 14

ORDER Application for special leave to appeal granted. Appeal allowed. Verdict of guilty of and conviction for murder and sentence thereon by the Supreme Court of South Australia set aside and in lieu of such verdict and conviction direct that a verdict of guilty of manslaughter be entered and order that the matter be remitted to that Court to be further dealt with according to law.

Cur. adv. vult.

The following written judgments were delivered:—

1977, March 4 Barwick C.J.

My brother Gibbs has set out in his reasons for judgment, which I have had the advantage of reading, the relevant facts relating to this application for special leave to appeal. He has also referred to the authorities which dictate the conclusion that at common law mere words cannot warrant the reduction of murder to manslaughter by reason of provocation. It is the common law which relevantly obtains in South Australia.

I feel bound to agree with my brother Gibbs' conclusion that if nothing more had been established by the applicant by way of provocation than mere words and if those words were not, to use the language of Viscount Simon in Holmes v. Director of Public Prosecutions (25) of a violently provocative character, the onus upon the Crown of establishing beyond any reasonable doubt that the killing of the deceased's wife was unprovoked did not specifically arise. In that situation, the trial judge would have been in error in leaving to the jury a case of provocation and, consequently, errors made in the summing up in relation to that issue, had there been occasion to place a case of provocation before the jury, would not have required the quashing of the applicant's conviction. Accordingly, on that footing, special leave should be refused.