Da Costa v R [1968] HCA 51; (1968) 118 CLR 186 (22 August 1968)

HIGH COURT OF AUSTRALIA

DA COSTA v. THE QUEEN [1968] HCA 51; (1968) 118 CLR 186

Criminal Law

High Court of Australia
McTiernan(1), Kitto(2), Menzies(3), Windeyer(4) and Owen(5) JJ.

CATCHWORDS

Criminal Law - Murder - Alternative verdict of manslaughter - Directions to jury - Duty of judge - Failure to direct on excessive force in self-defence where defensive act not excessive - Failure to direct as to provocation - Elements necessary to justify direction on provocation.

Criminal Law - Appeal - Leave to appeal to High Court from Supreme Court of Northern Territory - Question of mixed law and fact - What constitutes - No miscarriage of justice - Powers of High Court - On appeal - On application for leave to appeal - Northern Territory Supreme Court Act 1961 (Cth), s. 47 (1) (c)

HEARING

Sydney, 1968, June 27, 28; August 22. 22:8:1968
APPEAL from the Supreme Court of the Northern Territory.

DECISION

August 22.
The following written judgments were delivered:-
McTIERNAN J. Pursuant to an order of this Court granting him special leave, Northern Territory of the murder of Andreas Koklas. The High Court is asked to exercise its powers under s. 47 of the Northern Territory Supreme Court Act 1961 to substitute a verdict of manslaughter for the verdict of murder or in the alternative to order a new trial. Power to order a new trial is conferred by s. 36 of the Judiciary Act 1903-1965. This power is saved expressly by s. 48 of the Northern Territory Supreme Court Act 1961. The grounds of the appeal are (1) that the trial judge gave a misdirection in respect of manslaughter and withdrew the question of provocation from the jury although, so it is submitted, there was evidence for them to consider on that question; and (2) that the trial was irregular for the reason that the evidence of two witnesses to each of whom s. 25A of the Oaths Ordinance 1939-1967 (N.T.) was applicable was not taken in accordance with this provision. The prisoner was presented on an information which charged murder. The charge was in the form required by s. 17 of "The Criminal Law Consolidation Act and Ordinance 1876 to 1960". Murder is an offence under s. 5; manslaughter is an offence under s. 16. By virtue of s. 18 self-defence, if made good, is a defence to murder. The Act does not expressly deal with provocation. (at p188)

2. The trial lasted over several weeks. The case for the prosecution occupied most of the time. The prisoner gave evidence on oath; he did not call any witness. The learned trial judge commented in the summing up as follows:

"A great deal of the evidence which you heard from the
prosecution in the case was directed to showing a connexion
between the accused and the deceased and now that the
defence evidence has been put before you much of this evidence
becomes simply insignificant."

The evidence showing such connexion does not need to be discussed in order to decide this appeal. The evidence which is important for present purposes includes, of course, the medical evidence describing the injuries to the deceased's body, and the potential of a rock found near his body to inflict those injuries; the police evidence of statements which the prisoner made to the police, implicating him in the killing of Koklas, and his own sworn testimony at the trial of retaliatory violent action he took against Koklas to repel an attack by him with a piece of iron pipe. The retaliatory action, according to the prisoner's story, was picking up a stone and throwing it at Koklas. The prisoner admitted that Koklas was felled by the stone. The learned trial judge put it to the jury to find whether the prisoner bashed in the skull of Koklas with the rock or other comparable heavy object or to find that the only violence the prisoner inflicted on him was done by a stone capable of being thrown by hand. Both issues were left to the jury on the footing that there was evidence in support of either of them. The learned judge gave in the charge to the jury a direction regarding the case for the defence which reads thus:

"The accused has said that he was lying on the ground
without anything in his hands, when the deceased approached
him and not only threatened but actually applied violence by
means of a piece of iron pipe. In that situation he grasped a
stone in one hand, threw it, and hit the deceased. Now if it
was that blow with that stone which, hitting the deceased,
caused his death, that is a text-book case of self-defence, and
if you accept that story you must find the accused not guilty
because all that he did he did in self-defence. He was lying on
the ground without a weapon, he was being attacked by a man
standing up, with an iron pipe, and he grasped a stone and
threw it. I am sure it is beyond dispute, is it not, that that
was a reasonable thing to do in the circumstances.
He was using no more force than was reasonably necessary
because, after all, he was doing his best to ward off blows with
his left leg and left arm. He was using no more force than was
actually necessary to protect himself. If - I am not expressing
an opinion one way or the other - you accept that as the truth,
and nothing else happened, but that it was the blow on the
head by the stone thrown by the accused in those circumstances
which caused the death of the deceased, then your verdict must
be one of not guilty because he has made out the defence of
self-defence and if you accept it the Crown has certainly not
satisfied you that the death was due to an act not done in
self-defence. Now that I use as an illustration to make clear
the law as to self-defence.
Perhaps I should, at this stage, develop what I have just
told you, that being the essence of the defence in this case,
that a fight developed first of all with fists, that he twisted,
slipped and fell, as he was lying on the ground, he was
threatened by the deceased with an iron bar, he took up a
stone and threw it and it hit the deceased causing him to
bleed. I am not going into it in any detail now. He then did
certain other things and he left. This amounts to saying either
the deceased died because of that blow, being hit on the head
with that stone, in which case it entitles the accused to an
acquittal because his defence is made out as self-defence -
on that hypothesis the subsequent gross injuries received
were received in some unknown manner after death; they
have nothing to do with this - or alternatively the deceased
was subsequently attacked and grave injury was done to
him by some other person, by some other means, and once
again it follows that the accused did not do any acts causing
his death."

As regards the evidence of Dr. Hawkins and Dr. Bromwich describing the injuries to the skull of the deceased disclosed upon post-mortem examination his Honour gave in the charge a direction regarding the case for the prosecution which should also be noticed. Part of the direction reads as follows:

". . . nor indeed is there any certain proof that it was these
head injuries which caused the death of the deceased. You
may think it is; you may well be satisfied beyond reasonable
doubt that it was, but it is not mathematically proved.
Indeed, the accused's story involves, on one possible
interpretation,
that the injuries were done after death because,
as I have already explained to you more than once, the
accused's defence is that either somebody else killed him with
those injuries or he died as a result 'of my stoning him' and
somebody inflicted those injuries after death.
Now there is no certainty about this at all. It is for you
to decide; not as a matter of probability - do not think it is
a question of one story being more probable than another;
the question always is: are you satisfied beyond reasonable
doubt, looking at all the evidence?
Now the rock: the Crown case is that the accused battered
the head of the deceased with some very large object. It may
well be that this object, say the Crown, was the rock of which
we have heard so much, which is in the photographs. They
say this is supported by the fact that blood was found on the
rock and this blood could have been the blood of the deceased.
It is consistent with this rock having drawn blood from the
deceased, or at any rate, the deceased's blood being on the rock.
Once again, there is no certainty. It is another circumstance
which you consider in relation to all the other circumstances.
What is certain is that the blood on the rock was not the
accused's, because it was group O whereas the accused's was
group A.
If you wish me to do so at some later stage I will read to
you the evidence about the placing of the rock and the views
of Dr. Tucker. For what it is worth I do not think I need read
you that evidence now unless you ask me to, but all that the
Crown case suggests is that this rock could have been the rock
which was used by the accused.
You heard Dr. Bromwich's evidence that such a rock dropped
from a distance of anything between a foot and ten feet, and
obviously anything more, would cause the massive injuries
described, at any rate as a matter of probability, assuming
that the head of the deceased was up against something hard
on the other side.
You have also the accused's answers to Mr. McMahon in
which he said, 'Yes, that could have been the rock'. You
will accept, as certainly I do, that he could not have thrown
it with one hand, and in particular lying down.
Even if it had been - and you will probably accept what
Dr. Bromwich says - even if it had been thrown in the way
that a shot-put is done in athletics it is unlikely perhaps that
it would have brought about the massive damage to the skull
which has been described.
But, of course, it is not crucial to the Crown case that that
rock was used. It is suggested as a possible explanation, but
the Crown case does not stand or fall by that rock. It may
have been some other object." (at p190)

3. The prisoner on his examination-in-chief at the trial was asked "You have seen the big rock in court?" He replied "Yes". He was then asked "Was that the rock you threw at him?" He replied "Impossible sir; no, I couldn't". The next questin was "What sort of rock was it you threw at him?" Answer, "It was just a rock a bloke could lift with one hand. I was lying down when I threw it". The prisoner was not asked by counsel on either side whether he did or did not drop the "big rock" on Koklas. In the course of the questioning by the police the detective said, according to the police evidence, to the accused: "I should tell you that I understand that Koklas was killed by a rock and it is possible that there was a fight." The accused replied: "I don't know anything about how he died." (at p191)

4. The statements of the prisoner to the police as recounted by the police witnesses and the prisoner's testimony at the trial are stated at length in the summing up. This material is too long for quotation here but, of course, all the details of it require careful attention. The question whether it was right not to give a direction to the jury on the question of provocation depends on the material contained in this police evidence and the prisoner's testimony. I think it was clearly open to the jury on such evidentiary material if they had been directed to consider the question of provocation, to accept the view that the prisoner was provoked by the deceased's assault on him with the piece of iron pipe to lose his self-control. A reasonable jury would expect that a provocative act of that kind, done where the prisoner and the deceased were and in the circumstances in which the prisoner found himself, would have thrown an ordinary man into a state of great excitment and trepidation and caused him to lose his self-control. A jury could, on the evidence, find that under emotions of that kind the prisoner threw the stone believing that the deceased intended to attack him again with the piece of iron pipe and the prisoner lost control of himself. It is clear on the prisoner's story that he threw the stone at the deceased without any premeditated design. On the evidence of the prisoner the defence of provocation was legally available to the prisoner. In my opinion it was a miscarriage of justice to deprive the prisoner of the chance that the jury might have a reasonable doubt as to his being guilty of murder and accordingly reducing his criminal liability to manslaughter. It follows that the judge's direction that there must be an absence of self-defence, but not provocation which is not mentioned, is not complete as far as this case is concerned. Nor are the directions as to self-defence, because they leave no room for the principle in Reg. v. Howe [1958] HCA 38; (1958) 100 CLR 448 . I think that the direction in respect of manslaughter, which is towards the end of the summing up, is not right. The judge said in the course of this direction: "No evidence has been adduced in this case suggesting that that" (i.e. manslaughter) "is the proper inference to draw in law on what happened. Nothing has been said by the accused or on his behalf which suggests that possibility. The defence is an absolute defence." I find it difficult to reconcile all that is in this statement with views expressed on both sides in the addresses of counsel, in the absence of the jury, to the Court on the question of leaving provocation to the jury. But apart from this the direction cannot be supported. Dixon J. (as he then was) in Packett v. The King [1937] HCA 53; (1937) 58 CLR 190, at pp 213, 214 said:

"Further, upon the question whether a finding of
manslaughter
on the ground of provocation would in a given
case be unreasonable, the ruling of the House of Lords in
Woolmington's Case
[1935] UKHL 1; (1935) AC 462
has, of course, an important bearing.
For it may be open to entertain a reasonable doubt of
provocation
although it would be unreasonable to find affirmatively
that provocation existed and was sufficient. These are all
considerations showing the need of caution before a judge
undertakes to direct a jury against finding manslaughter."

I think the direction on manslaughter as a whole must have left upon the jury the impression that they could hardly do otherwise than find the prisoner guilty of murder or acquit on the ground that self-defence was made out. I think it is appropriate in this case to refer to what Dixon J. (as he then was) said in Packett v. The King [1937] HCA 53; (1937) 58 CLR 190, at p 217 , regarding the distinction between self-defence as a ground of justification and provocation as a ground on which the accused's offence could be found to be manslaughter or might be reduced to manslaughter. I think that it cannot be affirmed as true that the jury rejected the evidence of the prisoner that he threw a stone at the deceased man, and that they rejected the possibility that fatal injury to the deceased's brain was caused by the blow. In other words it does not necessarily follow from the finding of guilty of murder that we ought to proceed on the assumption that the prisoner did not throw a stone with his hand at the deceased during a fight involving both of them and thereby inflict a mortal wound on the deceased. The judge put this to the jury as an issue on which they could find for or against the prisoner. It is consistent with the verdict of guilty of murder that the jury took the view that the standard of justification which the judge instructed them was needed to make out self-defence was not made out. The verdict of guilty of murder therefore does not avoid the objections that provocation was withdrawn from the jury and a misdirection was given in respect of manslaughter. These objections to the charge to the jury are of a substantial nature. I considered that they were appropriate grounds upon which to grant special leave to appeal and were matters which weighed with me in forming my opinion that special leave should be given. They are the reasons why I think that the verdict should be set aside and a new trial had. I do not think this is a suitable case to apply s. 47 (4) of the Northern Territory Supreme Court Act 1961. In the view I take of the case it is not necessary to deal with the objection to the regularity of the trial on the ground that s. 25A of the Oaths Ordinance 1939-1967 was not observed. But I do not mean that I would not regard the omission as a serious one. The omission was of course not deliberate, it was due entirely to inadvertence. My impression on reading the appeal book is that this was an arduous trial and the learned judge conducted it with conspicuous fairness. (at p193)

KITTO J. I have had the advantage of reading the judgment prepared by Owen J., and I agree in it entirely. (at p193)

2. I should perhaps explain why, so far as I was concerned, it seemed appropriate to grant special leave to appeal at the close of the argument instead of following the course, which is more usual in a case where the Court takes time for consideration, of reserving judgment on the application for special leave after full argument has been heard as on an appeal. There was no reason to doubt that the Executive would postpone the execution date while the matter was being considered by the Court, but counsel for the Crown was not in a position to give a positive undertaking on the point, and as the Court was about to disperse for the vacation it seemed desirable to enable the appellant to obtain a right to apply to a single judge under r. 12 (4) of O. 70 of the High Court Rules for a stay of execution in the theoretically possible event of his needing to do so pending the delivery of judgment. That rule provides for such an application "after notice of appeal has been duly given", and the granting of special leave was the necessary preliminary to the giving of a notice of appeal. (at p193)

3. Since full consideration of the grounds of appeal has satisfied me that, for the reasons stated by Owen J., the trial is not open to any criticism save upon the point as to the departure from the course prescribed by s. 25A of the Oaths Ordinance - a point which in the circumstances of this case is of no importance, though it could be important in another case - I think the proper course is to rescind the special leave and dismiss the appeal. (at p193)

MENZIES J. I agree entirely with the reasons given by Owen J. for the order proposed. (at p193)

WINDEYER J. I have had the advantage of reading the judgment to be delivered by my brother Owen. I agree in his conclusion and in the reasons for it which he gives. I have however had reservations on one aspect; and these I think I should state. I agree that we ought not to give leave to appeal on the ground that unsworn statements by the two aboriginal witnesses were received in evidence: but I am not to be taken as saying that, if an appeal on that ground were entertained, a new trial would have to be ordered. In short, I am not satisfied that, if there were any irregularity in the reception of the evidence of the two aboriginals, that vitiated the trial. I shall explain later my reservations on that. First I want to say why, after some initial misgivings, I have come to agree with Owen J. that the question is one of mixed fact and law within the meaning of s. 47 (1) of the Northern Territory Supreme Court Act 1961. (at p194)

2. The distinction between questions of fact and questions of law, like the different but in some ways similar distinction between mistakes of fact and mistakes of law, has been productive of a multitude of cases and of numerous judicial statements which, especially in the field of taxation, are not all easily reconciled. I need do no more than refer to what was said in New Zealand by Gresson P. in Commissioner of Inland Revenue v. Walker (1963) NZLR 339, at p 353 and in this Court in Commissioner of Taxation v. Miller [1946] HCA 23; (1946) 73 CLR 93 . The topic has excited learned academic commentary - more so in America than in England or here: see Wilson, "A Note on Fact and Law" (1963), 26 Modern Law Review 609. It is now commonly said that the distinction between matters of fact and of law depends upon, is influenced by, and differs with the circumstances in which the question arises. When the distinction determines whether or not in a particular case an appeal lies, there is room for questioning whether it has in philosophy or logic an essential and abstract and universal character. Scrutton L.J. in Currie v. Commissioners of Inland Revenue (1921) 2 KB 332, at p 339 - a passage quoted by Jordan C.J. in Dennis v. Watt (1942) 43 SR (NSW) 32, at p 33 - pointed out that -

"there has been a very strong tendency, arising from the
infirmities of human nature, in a judge to say, if he agrees
with the decision . . . that the question is one of fact, and if
he disagrees . . . that it is one of law, in order that he may
express his own opinion the opposite way"

This may engender cynicism or stimulate self-examination or merely show that the distinction is not capable of precise formulation. The difficulty is in the notion that every question which arises for lawyers can be called either a question of fact or a question of law. We are rescued from that dilemma of classification; for the distinction which s. 47 (1) of the Act makes is between "a question of law alone" (when there is an appeal as of right) and "a question of fact alone or a question of mixed law and fact" (when leave to appeal is required). This avoids the matter against which Lord Cave, echoing Lord Atkinson, protested: "the attempt which is often made to secure for a finding on a mixed question of law and fact the unassailability which belongs only to a finding on a question of pure fact": Commissioners of Inland Revenue v. Lysaght (1928) AC 234, at p 241 . The section, as I read it, goes further than to deny an appeal as of right against a finding on a question of mixed fact and law. It extends to "any ground of appeal that involves a question of mixed law and fact". The expression "a question of mixed law and fact" seems to describe a hybrid, the progeny of a dispute as to facts and as to the effect of the facts when they have been determined one way or the other. It is an old expression in the law. When it was first used I do not know. In the days when it seemed sufficient to say that questions of fact were for the jury and questions of law for the court, it was said in Starkie on Evidence, 3rd ed. (1842), vol. 1, pp. 519-520:

"The terming any question a mixed question of law and
fact is chargeable with some degree of indistinctness. Questions
of law and fact are not in strictness ever mixed; it is always
for the jury to decide the one, and the Court the other, however
complicated the case may be . . . ."

But this condemnation of an expression then already well known did not put an end to it. It lived on and with an enlarged, if no more precise, meaning than that which Thomas Starkie allowed it. Sir John Salmond said:

"A question is very often both one of fact and one of law,
and it is then said to be a mixed question of law and fact"

and

"It is to be noted, therefore, that the distinction between
law and fact depends not on the person by whom, but on the
manner in which the matter is determined. Yet although
this is so an illogical and careless usage of speech sometimes
classes as questions of law all those which are for the decision of
judges, irrespective of the existence or non-existence of legal
principles for their determination" (Jurisprudence, 6th ed.,
pp. 16, 19).

The expression "mixed question of fact and law" was used by Lord Macnaghten in Hoddinott v. Newton, Chambers & Co. Ltd. (1901) AC 49, at p 56 . More recently the Privy Council in Felix v. General Dental Council (1960) AC 704, at p 717 , has spoken of "a question of mixed fact and law". (at p196)

3. Whether or not the evidence of the two aboriginal witnesses ought to have been admitted is a question which involves matters of fact referred to in s. 25A of the Oaths Ordinance 1939-1967 (N.T.). It involves also the operation and effect of that enactment, the facts being ascertained. I think therefore that the ground of appeal founded on what happened when the aboriginal witnesses entered the witness box cannot be said to "involve a question of law alone". To consider it this Court had first to ascertain facts. We did so from the written transcript and from the statements of counsel, confirmed by a report furnished by the learned trial judge. From the cumulative effect of this material it is established that his Honour was not aware of the alteration in the law made by s. 25A. Neither the Crown Prosecutor nor counsel for the defence informed him of it, for they too it seems were ignorant of it. His Honour told each of the aboriginal witnesses that he must tell the truth, that all that he should say must be true and his Honour was, it seems, satisfied that they each understood this admonition. He did not expressly tell them that if they did not tell the truth they would be liable to punishment. Whether or not they understood from his Honour's direction to them to tell the truth that they were liable to be punished if they told lies, we do not know. It seems probable that they would have taken that to be the effect of his Honour's words because one must assume them to be aware of rewards and punishments in this world and they were being told by the judge what they must do. But that does not shew that the need for his Honour to be satisfied that they knew of their liability to punishment was met. Not being aware of s. 25A, he did not turn his attention to that. However, no suggestion was made by the defence at the trial that the evidence of the aboriginal witnesses about finding the body was not in fact true; nor is it now suggested that what they said is disputed. What they said was relevant. But in the way the case developed, it ceased to be important. In these circumstances I think that leave to appeal should certainly not be given on the ground that the jury were allowed to hear what they had to tell. (at p196)

4. I pass now to consider the reservation I mentioned at the outset of this judgment, that is to say the question whether, assuming leave to appeal on the ground of a departure from the requirements of s. 25A were given, the appeal would in this case be upheld. Two questions seem to me to arise on this aspect. I shall express no concluded opinion on them as they depend upon matters which were not fully argued. (at p197)

5. The first is whether on an appeal by leave this Court can consider whether any substantial miscarriage of justice occurred. There is no enactment which in terms provides for this situation. Nevertheless, I think we should in this govern ourselves by the same considerations as does the Privy Council. On that basis it seems to me that, whether the formal result is expressed as that leave be refused, or that leave given be rescinded, or that an appeal pursuant to leave be dismissed, this Court should not allow an appeal on any ground which if investigated would not have sufficed for leave to bring it. Lord Sumner, delivering the judgment of the Judicial Committee in Ibrahim v. The King (1914) AC 599, at p 615 said:

"The Board cannot give leave to appeal where the grounds
suggested could not sustain the appeal itself; and,
conversely,
it cannot allow an appeal on grounds that would not
have sufficed for the grant of permission to bring it.
Misdirection,
as such, even irregularity as such, will not suffice: Ex parte
Macrea
(1893) AC 346
. There must be something which, in the particular
case, deprives the accused of the substance of fair trial and
the protection of the law, or which, in general, tends to divert
the due and orderly administration of the law into a new
course, which may be drawn into an evil precedent in future."

The same principle has been more recently, and quite decisively, stated by their Lordships on several occasions of which I mention two. One is Lejzor Teper v. The Queen (1952) AC 480 , in particular the passage (1952) AC, at p 491 beginning "It is a principle of the proceedings of the Board that it is for the appellant in a criminal appeal to satisfy the Board that a real miscarriage of justice has occurred". The other is Chan Kau v. The Queen (1955) AC 206 , where their Lordships (1955) AC, at p 214 adopted from the case just cited (1952) AC, at p 492 the words:

"The test is whether on a fair consideration of the whole
proceedings the Board must hold that there is a probability
that the improper admission of hearsay evidence turned the
scale against the appellant."

In the present case instead of the words "the improper admission of hearsay evidence" the words "the irregular reception of the evidence of the aboriginals" should be substituted. The answer is perfectly plain. The pronouncements of the Privy Council support and reinforce what Starke J. said of the functions of this Court in the passage which my brother Owen quotes in his judgment in this case. (at p197)

6. The next question which would arise in an appeal on the ground that the evidence of the two aboriginals was received is whether or not it was, as a matter of law, and on the facts as ascertained, improperly received. The question was not argued at any length. Counsel merely pointed to the form of s. 25A and to the common-law rule requiring evidence to be given on oath and to the judgments given in this Court in Cheers v. Porter (1931) 46 CLR 521 . The language of s. 25A may, it would seem, have been derived from the Queensland Oaths Act Amendment Act of 1884. It is argued that s. 25A is now the only authority for dispensing with an oath or affirmation in a trial in the Northern Territory. Section 9A (1) of the Evidence Ordinance 1939-1965 (N.T.) made special provision for the testimony of an aboriginal without an oath; but this was repealed on 14th August 1967. (at p198)

7. Difficulties about the evidence of untutored aboriginals arose in Australia at an early date after British settlement began and as British law was being administered in new areas as the frontiers of settlement were pushed out. It was then considered, in accordance with the accepted doctrines of the common law at the time, that the aboriginal inhabitants of the country were incompetent to take an oath and therefore could not give evidence in any court. As J. H. Plunkett, The Australian Magistrate (1835), p. 118, put it:

"Atheists or persons who profess no religion, and have no
belief in a future state of rewards and punishments can never
be admitted to give evidence. It is to be lamented that the
Aboriginal natives of New South Wales are at the present time
incompetent to give evidence on this ground."

To meet the needs of justice, for both white settlers and aboriginal natives, the Legislative Council tried in 1839 to remedy this by its enactment 3 Vict. No. 16: see Callaghan's Statutes of New South Wales, vol. 1, p. 1. But the Act was disallowed by the Crown on the recommendation of the Home Government. The Law Officers reported that it was "contrary to the principles of British jurisprudence". Their curious report is printed in the Historical Records of Australia, Series 1, vol. 20, p. 756. Nevertheless soon afterwards the Imperial Act The (Colonies) Evidence Act, 1843 6 & 7 Vict. c. 22, s. 1, enabled colonial legislatures to deal with the topic by statute to be reserved for the royal assent. But no statute was passed in New South Wales, perhaps because, as Dixon J. said in Cheers v. Porter (1931) 46 CLR, at p 533 , no statute appears to have been needed. At all events, from 1876 onward the matter was met in New South Wales by 40 Vict. No. 8, s. 3. Persons adjudged incompetent to take an oath were allowed instead to make a promise to tell the truth. This in New South Wales met the case of aboriginals, young children and others: see e.g. Reg. v. Paddy (1876) 14 SCR (NSW) 440 . In Queensland too the general enactment in 1884, which I have mentioned above, apparently sufficed. But in Western Australia in 1841 (by 4 & 5 Vict. No. 22), in South Australia in 1848 (by No. 3 of 1848), in Victoria in 1854 (by 17 Vict. No. 11, s. 7) special provisions were enacted for taking the unsworn evidence of aboriginals. Some of these enactments were taken up and continued in later legislation. The law of South Australia became law in the Northern Territory on 1st January 1911. The South Australian enactment No. 3 of 1848 remained in force in the Territory until 1939 when it was repealed by the Oaths Ordinance 1939, s. 2. On the same date the Evidence Ordinance (No. 2) 1939 commenced. It inserted ss. 9A, 9B and 9C into the earlier Evidence Ordinance 1939. As the slate was thus wiped clean at the same time as s. 9A was written, the subsequent repeal of s. 9A cannot revive the earlier South Australian enactment, whatever be the effect of the combined Interpretation Ordinance 1931-1959, s. 4, and the Acts Interpretation Act (Cth). The last stage in the story for the Northern Territory is that the Oaths Ordinance 1967 inserted s. 25A into the Oaths Ordinance 1939-1965; and two months later ss. 9A and 9B of the Evidence Ordinance 1939-1965 were expressly repealed by the Evidence Ordinance 1967. The result is that at the time of the trial of this case s. 25A was the only statutory provision in the Northern Territory by which an oath or affirmation could be dispensed with in the case of a witness who did not understand the nature of these solemnities. (at p199)

8. Section 25A may seem at first sight to be directed primarily to making a person who gives evidence pursuant to it liable, if his evidence be false, to the penalties for perjury. Liability to punishment in this world is taken to be a sufficient deterrent from falsehood, without the additional hope of reward or the apprehension of punishment hereafter which the law has assumed to be inherent in the taking of an oath. Section 25A is in the Oaths Ordinance and not in an enactment relating primarily to the admissibility of evidence. This may seem to be a roundabout way of enabling unsworn evidence to be received. However, I am prepared to read it as having that effect, and to assume that it states as a condition precedent for the receipt of the evidence that the judge must be consciously satisfied that the witness understands he is liable to be punished if he tells lies. That accords with the view Stanley J. expressed in R. v. Wilton (1946) QWN 19 , and see R. v. Fulton (1937) 54 WN (NSW) 131 ; R. v. Southern (1930) 142 LT 383 . The question which then arises is whether, if that condition be not fulfilled, because without adverting to it the trial judge allows unsworn evidence to be received as in this case, a trial must be said to have on that account miscarried. That question involves common law doctrine concerning the testimony of witnesses and the place of oaths in courts of law. It is not necessary to examine that topic here. Many writers have dealt with it from different points of view - the value of oaths as a sanction of veracity, the validity of requiring them in point of law and theology, the need in the interests of justice of unsworn statements being received in some cases. For present purposes I need say no more than that I have found the discussions in Best on Evidence and Wigmore on Evidence among others helpful and thought-provoking. (at p200)

9. Let it be assumed that, according to the common law, the statements of the aboriginal witnesses in this case were not receivable and that they were not made so by s. 25A - what then? There are in the books many decisions that verdicts based on unsworn statements, not authorized by statute, cannot stand: and the convictions have been quashed. But in most of the reported cases the question of the admissibility of the evidence had been raised at the trial and reserved by the trial judge for the Full Court or as a Crown Case Reserved. The point can be taken for the first time after verdict if taken at once and before sentence. It was so held in R. v. Smith (1906) 6 SR (NSW) 85 , a case of unsworn evidence by a black tracker, and in Reg. v. Moore (1892) 17 Cox CC 458 . But I am not, in the present state of my knowledge and unassisted by full argument, persuaded that this kind of objection can be raised for the first time as a ground of appeal after the trial has concluded and sentence has been pronounced. The evidence was in substance inherently admissible. That is to say it was admissible if verified by oath or affirmation, or given under conditions allowed by law in substitution for an oath. In these circumstances it may be that it is now too late to say that its receipt was defective because s. 25A was not adverted to. I express no opinion on that. There are cases which bear, one way or the other, on the point: see Wigmore, 3rd ed., vol. 6, s. 1819; Taylor on Evidence, 11th ed., s. 1392: also R. v. Austin and Davies (1916) 12 Cr App R 171 ; R. v. Surgenor (1940) 2 All ER 249 ; R. v. Fulton (1937) 54 WN (NSW) 131 . (at p200)

10. I should add that the learned judge - who, I take the liberty of saying, conducted the trial in an eminently careful and fair manner - reminded the jury that the evidence given by the aboriginals was not sworn, and told them that it was nevertheless properly before them and that they could give it such weight as they thought fit. (at p201)

11. I have now fully stated my reservations about the effect in law of the reception of the evidence of the aboriginal witnesses in the circumstances in which it was received. I have said why the matter raises some questions which remain for me unresolved. But, putting those aside, it is I think abundantly clear that this Court ought not to disturb the jury's verdict because of any irregularity in the reception of this evidence. When the whole circumstances of the case are considered, there was nothing in relation to the evidence of the aboriginals which could have produced a miscarriage of justice. Leave to appeal on that point alone would not have been warranted. The Court did grant special leave to the applicant to appeal generally. No notice of appeal had been filed within the time allowed, and special leave to appeal was necessary to overcome that position. Moreover, for the reasons which have been explained by my brother Kitto, and which so far as I was concerned seemed compelling, the Court announced at the conclusion of the argument that special leave was granted. However, if and so far as the appeal is based on the reception of the evidence of the two aboriginals, that is on a ground which involves a question of mixed law and fact, I agree that it should not be entertained. It is suggested that we should now rescind the leave to appeal and dismiss the appeal. I have doubts about expressing the decision in that way. I would prefer simply to dismiss the appeal. That would accord with the practice of the Privy Council to which I have referred: see Ibrahim v. The King (1914) AC 599, at p 615 ; Renouf v. Attorney-General for Jersey (1936) AC 445, at p 475 ; Kannangara Dharmasena v. The King (1951) AC 1, at p 12 . However, I am content with any order which terminates the appeal. (at p201)

12. I have not thought it necessary to say anything about the matter principally argued, namely provocation. The judgment of my brother Owen shows, I think convincingly, that the evidence in this case does not provide any basis for saying that the act by which the deceased was killed was in any relevant sense the result of provocation. I do not, I hope, underrate the importance of provocation as a defence to an indictment for murder in a case in which there is evidence to support it. In Parker v. The Queen [1963] HCA 14; (1963) 111 CLR 610, at pp 650-655 I stated what I believe to be the common law on this subject. But for the defence of provocation, reducing murder to manslaughter, to prevail there must be some evidence of it in all its essential elements. It cannot be constructed out of speculation and suppositions about mere possibilities. Unless there be evidence of provocation it is not a question for the jury. The judgment of Sugerman J. in R. v. Vassilieu (1967) 68 SR (NSW) 74 is a recent statement of this. In a case governed by the rules of the common law we should not depart at all from what Viscount Simon said in the House of Lords in Holmes v. Director of Public Prosecutions (1946) AC 588 . (at p202)

13. In my opinion the jury's conviction of the applicant should not be disturbed. I would dismiss the appeal. (at p202)

OWEN J. On 29th April 1968 the appellant was indicted before the Supreme Court of the Northern Territory upon a charge of murdering one Andreas Koklas on the Barkly Highway approximately eight miles west of Soudan Station on or about 13th January 1968 and after a lengthy trial the jury, on 15th May 1968, returned a verdict of guilty and sentence of death was passed. (at p202)

2. Under s. 47 (1) (a) of the Northern Territory Supreme Court Act a person convicted on indictment before the Supreme Court of the Territory has an appeal as of right to the High Court on any ground that involves a question of law alone and, by s. 47 (1) (c), he may appeal by leave of the Court on any ground of appeal that involves a question of fact alone or a question of mixed fact and law. Two of the grounds of appeal upon which the appellant relies relate to questions of law alone, namely whether the learned trial judge should as a matter of law have given the jury certain directions relating to manslaughter. The third ground was that certain evidence was wrongly admitted. At first sight this ground also appears to involve a question of law alone but on closer examination it becomes apparent that the admissibility or otherwise of that evidence involves a question of mixed fact and law. For this reason the appellant had at no stage any right of appeal on this ground and I will return to this later. (at p202)

3. The High Court Procedure Act provides, by s. 37, that appeals shall be instituted within such time as is prescribed by Rules of Court, and by O. 70, r. 6 (1), a notice of appeal is required to be filed and served within twenty-one days from the date when the judgment appealed from was pronounced. For reasons which were satisfactorily explained to us, no notice of appeal was filed within the prescribed time and accordingly application was made under O. 70, r. 6 (2), for special leave to appeal. This was granted and an appeal instituted. (at p203)

4. The first ground argued was that the learned trial judge had failed to direct the jury that, if Koklas' death was caused by an act of the appellant (which the defence denied), it was open to them to find a verdict of guilty of manslaughter rather than of murder on the ground of provocation. (at p203)

5. The second submission related to a question of self-defence. It was submitted that in dealing with this issue, which was one of those left to the jury, the learned trial judge should have directed them that it they thought that Koklas' death was caused by an act of the appellant and that that act, although done in defending himself from an attack by the deceased, involved the use of more force than was reasonably necessary or if the evidence raised a reasonable doubt in their minds whether this was so or not, they should find the appellant guilty of manslaughter and not of murder. (at p203)

6. The third ground, which related to the admissibility of certain evidence, was that the learned trial judge had erred in allowing two aboriginals, who were called by the Crown, to give evidence without being sworn. (at p203)

7. Before dealing with these three submissions it is desirable to give an outline of the evidence led for the prosecution and the case put forward by the appellant in his evidence. (at p203)

8. The first two persons called were the aboriginals to whom I have referred. They were described by his Honour as "unsophisticated" and each was questioned by his Honour for the purpose of determining whether he understood the nature of an oath. One said that he had never been to school and was not a Christian, the other that he had never been to school and did not understand what was meant by a Christian. In each case his Honour, with the assent of counsel for the defence, said that he thought that the witness need not take an oath and went on to tell him that he must tell the truth. The evidence of these two witnesses, one of whom answered to the name of Pompie Turner and the other to the name of Sleepy Charlie and who were stockboys on a Northern Territory cattle station, was to the effect that on a date which neither specified but which from other evidence in the case seems to have been 13th February 1968, they were driving along the Barkly Highway from Avon Downs Station when their car broke down about nine miles from Soudan Station. They walked along the road to look for water and while doing so noticed a smell which they thought came from a dead beast. They went to investigate the source of the smell and close by the side of the road they came upon the dead body of a man lying close to a small tree. The body was partly covered with broken bushes and leaves and was clothed in a singlet and underpants. They did not touch it. They then walked back in the direction of Avon Downs Station and were later picked up by another car and taken to the station where they reported their discovery. On the following day they went with a police officer named Cox to the place where they had seen the body and pointed it out to the officer. No suggestion was made in cross-examination that the two men were not telling the truth. From other evidence - which was not disputed - it appeared that the dead man (who was later identified as Andreas Koklas) had suffered very serious injuries. A large area of his skull had been crushed in and on one side of his chest seven ribs and on the other side ten ribs had been crushed and fractured. These injuries, if inflicted while Koklas was alive, would have caused immediate death. The body was in a state of decomposition and when moved by police officers and a doctor who was shortly afterwards brought to the scene, parts of the body disintegrated. The injuries could have been caused if a heavy stone had been dropped on the head and body of the deceased while he was lying on the ground and a stone about fourteen to sixteen inches in length and ten to twelve inches in width and depth and weighing thirty-five pounds was found close to the body. On its undersurface dried blood stains were found and the blood belonged to the same group as that to which the deceased's blood belonged, the appellant's blood belonging to a different group. (at p204)

9. Much detailed evidence was then directed to link the appellant with Koklas' death. It was to the following effect: (at p204)

10. In December 1967 the appellant and Koklas had driven to Melbourne in a utility truck belonging to Koklas and early in January 1968 they had set out together in the truck to drive back from Melbourne to Darwin. They reached Camooweal and from there on 13th January had set out along the Barkly Highway en route to Darwin. Sometime in the late afternoon of 13th January the appellant was seen in Koklas' truck some miles short of a place called Frewena and was later in the day at a place called Three Ways. Both these places were on the Barkly Highway and the road to them from Camooweal along the Highway passed the place where the body was later found. The appellant was then the sole occupant of the truck and, in the evening of that day, he sold to the licensee of a roadhouse at Three Ways a movie camera and projector and offered to sell him a watch. He also sold a transistor. These articles were the property of Koklas. From Three Ways the appellant, instead of going on to Darwin, drove the truck south and eventually reached Melbourne where on 22nd January, using the name of Koklas, he sold it to a used car dealer. A number of articles including some clothing were in the truck when it was sold and these were identified as having belonged to Koklas. On 30th January, representing himself to be Koklas, the appellant presented a Bank of New South Wales Savings Bank book, issued by that Bank's Darwin branch in the name of Andreas Koklas, to a branch of the Bank in Fremantle and sought to withdraw $150 from the account. He was paid $30 and told by the Bank's accountant that before paying him any further sum it would be necessary for the Bank to communicate with its Darwin branch by telephone and that that would take a little time. The Bank officer told the appellant to call back on the following day and retained the Bank book. The appellant left the Bank but did not return. He was later interviewed by police officers at a hotel in Fremantle at which he was staying. In his room the officers found a number of articles including a Northern Territory driver's licence in the name of Andreas Koklas and some clothing which included a pair of brown trousers marked with the latter's name. In the course of the interview the appellant produced some cash and said that he had withdrawn it from the Bank and that the Bank book had been retained by the Bank. The officers then took him to the Bank where Koklas' Bank book was produced and the appellant said that he had used the book to make the withdrawal of $30 on 30th January. Asked whether there was such a person as Andreas Koklas he replied that Koklas was a Greek whom he had known in Darwin but who had returned to Greece and that he, the appellant, had used Koklas' name to open the account. He said that he had taken out the driving licence and opened the Bank account in the name of Koklas to avoid having to pay maintenance to his wife. During the next few days further interviews took place between police officers and the appellant. At one of them, on 17th February, he was told that the body of a man named Andreas Koklas had been found on the side of the road on the Barkly Highway. The appellant asked "Is Koklas dead?" and was told that he was. Asked when he had last seen Koklas, he replied that they had travelled together to Melbourne and that he had seen him there shortly after Christmas. He said that he had opened the Bank account and taken out the driving licence in Koklas' name because he did not want his wife to know how much money he had. He was questioned about clothing bearing Koklas' name which had been found in his suitcase at the hotel and said that Koklas had given it and some shoes to him. His attention was drawn to an entry in the Bank book showing that $150 had been withdrawn from the account at the Ipswich branch of the Bank in Queensland on 11th January 1968 and said that he had made the withdrawal. He said that he knew nothing of the whereabouts of Koklas' truck and denied that he had been driving it in the Northern Territory on 13th and 14th January. He said also that he knew nothing about Koklas' death. Later in the day the appellant told one of the officers that he wished to tell the truth about the Bank book. He was given the customary caution and said that he had stolen the Bank book from Koklas while they were on their way from Darwin to Melbourne in Koklas' truck. On 19th February at another interview with the police and after being cautioned he was told that it was understood that Koklas was "killed by a rock and it is possible that there was a fight". The appellant replied that he did "not know anything about how he died" and repeated that he knew nothing about the truck or about Koklas' death. Later on the same day he made a statement which was typed out by the police and signed by him. In some respects it differed from what he had earlier told the police officers. For example, according to the typed statement he said that it was Koklas who had withdrawn the money from the Bank in Ipswich and that it was shortly after that withdrawal had been made that he had stolen the Bank book from the glove box in Koklas' truck. He said that he had driven with Koklas from Melbourne to Ipswich and had there met a truck driver whom he knew as "George" who was on his way to Melbourne. He had asked "George" whether he would give him a lift back to Melbourne. "George" had agreed to do so and he had thereupon moved his suitcases from Koklas' truck to "George's" truck and had been driven back to Melbourne by "George", leaving Koklas in Ipswich. He had done this because he had stolen the Bank book. He said that he had last been on the Barkly Highway in July 1967 and had last seen Koklas at Ipswich. He said that he knew nothing about Koklas' death and denied that he had been driving Koklas' truck in the Northern Territory on 13th January 1968. (at p206)

11. On 23rd February a further interview with police officers took place. After being cautioned the appellant, in answer to a number of questions, at first gave an account of his movements on lines similar to that given by him to the police on 19th February. It was to the effect that he had gone to Melbourne from Darwin with Koklas in the latter's truck and that on their return journey they had reached Ipswich where Koklas had drawn some money from the Bank. He said that he had then stolen the Bank book and returned from Ipswich to Melbourne with a truck driver, leaving Koklas in Ipswich, and that that was the last time he had seen Koklas. He went on to say that on the way from Darwin to Melbourne in company with Koklas in December 1967 they had called at Three Ways where, at Koklas' request, he had sold the latter's movie camera and transistor. After some further questions concerning the sale of the truck in Melbourne, about which he had ealier said that he knew nothing, the appellant said:

"Look, we better stop this. Look, we had an argument.
I do not want to waste any more time. You know all about
it."

He was again cautioned and then proceeded to make a statement and answer further questions. He said:

"We had an argument on the Barkly. I did not know that
he was dead. I just panicked and shot off. I will never forget
what he said to me. I did not want to kill anybody. Andreas
and I were friends and I just panicked. I am sorry to have
wasted your time. I should have known better. I should have
told you before. I suppose my life is finished now. There is
no need to talk about it. You know all about it."

Asked what was the argument that he had had with Koklas, he replied to the effect that Koklas had earlier told him that he would not have to pay any part of the cost of the journey to and from Melbourne but that at Camooweal they had had an argument on the subject in the course of which Koklas had asked him to contribute to the cost and threatened that unless he did so he, Koklas, would leave him there. He said that they had then left Camooweal and driven along the Barkly Highway. The engine of the car had overheated and they had pulled into the side of the road and stopped under a tree. Koklas had again asked him for money. An argument ensued and Koklas hit him. He then hit Koklas "and I panicked. I ran away. Then I came back to the vehicle". He said that Koklas had hit him with the handle of the car jack and that he had hit Koklas, who was standing up, with a "rock" which he had picked up. He thought that he had hit Koklas on the head with the "rock". Koklas' head was bleeding after being hit. He said that he had then run away. Koklas was wearing, he said, brown trousers and a white shirt. He was shown a photograph of the large stone which had been found near the body and said that he could not say whether that was the "rock". Later when shown a photograph of the body with the large stone lying close to it, he said "Yes, that is the rock. That is where I left it". He said that the place shown in the photograph "could be the place I hit him" and that when he left him Koklas "was lying under a tree. He was standing up when I hit him with the rock. When he dropped he did not move and I did not touch him any more. I then put the leaves over him". Looking at the photograph he said "I put those leaves there". He was told that the body when found was only clothed in underpants and singlet and was asked whether he had removed any clothing. He denied having done so and said that he had covered Koklas with leaves because "Andreas had blood coming out of his head. It was very hot. I thought he might die". Asked why he had not taken Koklas back to Camooweal if he thought he might die, he said "I just panicked and wanted to get away". He said that it had happened on a Saturday afternoon and that "it was the same day that I sold the camera and things at Three Ways". In answer to further questions he said Koklas had given him two pairs of trousers and a pair of shoes. He was shown some clothing which had been found in his suitcases and said that a pair of charcoal pants and a coloured shirt were those which he had been wearing at the time of the fight with Koklas. He said that he and Koklas were both wearing "scuffs" on their feet and that he had left his in the truck when he sold it in Melbourne and had while in Melbourne "got rid of" the scuffs which Koklas was wearing. He was shown the camera and a watch which had been identified as having belonged to Koklas and said that the camera had been in the truck and he thought it belonged to Koklas and that the watch was his own. On 26th February, whilst being flown to Darwin in custody, he made a further statement to the police officer who was with him. After being cautioned, he said:

"Yes, yes I just want to clear it all up. If I tell you I tell
the Court. There will be no need for you to tell the Court
because I will tell the Court everything. How I hit Andreas
and how I left him there. I am glad it is all over. Don't you
worry. I will tell the Court everything. I suppose I will hang.
Andreas was my very good friend."

He said also that the watch which he had earlier claimed to be his belonged to Koklas. He had not taken it from the latter when he was -

"lying there. It was in the car when I came back. Like I
told you after I hit him with the stone I panicked and ran
away. I ran about a mile, no cars came along. I went back.
I got in the car and drove away". (at p208)

12. This, I think, fairly summarizes the evidence led by the Crown. The appellant then gave evidence. He said that in December 1967 he had left Darwin with a man named Angelo, a woman and a child in Angelo's car. At Tennant Creek he had met Koklas and had arranged to travel with him to Melbourne in the latter's truck. In January 1968 while they were in Melbourne, Koklas had asked him to drive back with him to Darwin and had said that the trip would cost the appellant nothing if he would share the driving. The route which they followed took them through Ipswich to Mt. Isa and thence to Camooweal. There Koklas told him that he had spent $300 on the trip and asked him to pay half of it. This the appellant refused to do. They left Camooweal for Three Ways and just outside Camooweal had stopped and changed their clothes. Koklas who had been wearing shorts took them off and put on a pair of trousers and a shirt. I interpolate here to say that a pair of shorts which had been found by the police in the appellant's possession and identified as belonging to Koklas were found to have had blood stains on them, the blood being of the group to which Koklas' blood belonged. Soil was also found on them and in the pocket which corresponded with the type of soil at the place where the body was found. (at p209)

13. To continue with the appellant's evidence, he said that, after changing their clothes outside Camooweal they set off again but the engine became heated and they stopped under a small tree on the side of the road. Koklas told the appellant that he was worried about the wheel bearings so the latter got out the jack and a piece of iron pipe used as a jack handle and checked the bearings. Koklas again asked the appellant to pay $150 as his share of the cost of the trip and the appellant refused. An argument developed and the appellant said "You - Greeks are all the same - moneyhungry bastards". Koklas thereupon punched him and he "bashed him back quite a few times". Koklas fell to the ground but got up holding the jack handle and "came at me with it". The appellant slipped and fell. While he was lying on the ground Koklas hit him several times with the jack handle:

"Not far from where I was lying was a rock. I grabbed for
it and lying then as I was I threw the rock at him. He dropped
and let go of the pipe at the same time. I was not happy.
I got up and I was going to hit him again but I didn't hit him
again. He said 'Please Joe, don't hit me again, please put
water on my head'. I was mad at him at the time and on
my right-hand side were two small little branches of the tree
where he was sitting previously. I got hold of them and
shoved them at him. I waited a little longer. I asked him
a couple of times to get up. He wouldn't and I opened the
front, the left door of the car",

took out a plastic bottle of water and poured some water on Koklas' head. He then put the jack and the iron pipe in the car. "I didn't know what to do for a while. I got in the car to go." His counsel asked him whether "the big rock", the one later found near the body, which was an exhibit in the case, was the one that he had thrown. To that he replied "Impossible, sir; no, I couldn't". The rock he had thrown was, he said, "just a rock that a bloke could lift with one hand. I was lying down when I threw it". Shown photographs of the body he said that the leaves on it were not "the leaves I threw on him". (at p210)

14. He said that following these happenings he had driven on to Frewena and later to Three Ways. On the way he had opened Koklas' bag and found in it a Bank book, a passport and some other papers. At Three Ways he had sold the movie camera and projector and a transistor. He thought that if he went to Darwin he would be in trouble "for taking the things" and accordingly had driven to Alice Springs and thence to Melbourne. There he had sold the truck. He had then gone to Western Australia and there used Koklas' Bank book and name to draw $30 from the latter's Savings Bank account and had sought to draw out more cash but had been told by the Bank to come back next day. He said that he had told a number of lies to the police but that what he had said in the witness box was the truth. He denied that a pair of trousers bearing Koklas' name which had been found in his possession were the ones into which Koklas had changed outside Camooweal. He said that the "rock" that he threw hit Koklas "somewhere on his face, his head" and that after he had poured water on Koklas' head, "he kept looking at me but he didn't say anything" and that his eyes were "blinking". Before he left the scene he said to Koklas "If one of us has to walk and if it is good enough for me to walk it is good enough for you to walk or get a lift". (at p210)

15. In his address to the jury at the close of the evidence counsel for the defence put forward two contentions. First that the deceased's death had not resulted from any act of the appellant. The stone which he had, while lying on the ground, thrown at Koklas when the latter attacked him with the jack handle could not have caused the injuries to the skull and chest which were found on an examination of the body. The appellant's evidence was that Koklas was alive when he left the scene and the injuries must have been inflicted later by some other person who had thus killed Koklas and covered up the body with leaves and bushes. Alternatively counsel contended that if the death had resulted from the throwing of the stone, the appellant had acted in selfdefence. The learned trial judge - who conducted the trial in a scrupulously fair manner - put the issue of self-defence to the jury. (at p211)

16. In the course of dealing with these contentions in his summing up, his Honour emphasized that it was for the Crown to prove beyond reasonable doubt that the act causing death - if it was the act of the appellant - was not done in self-defence. He went on to say:

"The accused has said that he was lying on the ground
without anything in his hands, when the deceased approached
him and not only threatened but actually applied violence by
means of a piece of iron pipe. In that situation he grasped a
stone in one hand, threw it, and hit the deceased. Now if it
was that blow with that stone which, hitting the deceased,
caused his death, that is a textbook case of self-defence, and
if you accept that story you must find the accused not guilty
because all that he did he did in self-defence. He was lying
on the ground without a weapon, he was being attacked by
a man standing up, with an iron pipe, and he grasped a stone
and threw it. I am sure it is beyond dispute, is it not, that that
was a reasonable thing to do in the circumstances.
He was using no more force than was reasonably necessary
because, after all, he was doing his best to ward off blows with
his left leg and left arm. He was using no more force than was
actually necessary to protect himself. If - I am not expressing
an opinion one way or the other - you accept that as the truth,
and nothing else happened, but that it was the blow on the
head by the stone thrown by the accused in those circumstances
which caused the death of the deceased, then your verdict
must be one of not guilty because he has made out the defence
of self-defence and if you accept it the Crown has certainly
not satisfied you that the death was due to an act not done
in self-defence."

Later he said:

"The accused says, or invites you to infer, that after he
left the scene in the manner described he does not know what
happened. It is possible that - perhaps not very likely,
however
- the deceased died as the result of being struck on the
head by the stone in the manner described. If so, the defence
case is that it was self-defence and I have already advised
you on the law on that. If that is the story it is a classic case
of self-defence and the accused cannot be guilty. Or,
alternatively, he says - and he does not have to suggest which
is the more likely alternative - the other inference is that
after he left the deceased some other person or some other
agency inflicted the injuries which have been described, removed
the clothes, very possibly moved the body, and that the
accused died from those injuries. Then much more leaves were
put over the body and generally what was found by the
aboriginals and by the police was not of the accused's doing.
On that basis also, of course, it is obvious if that is the truth,
then clearly, equally, the accused is not guilty."

And again:

"The accused's case is that he had a fight, in the
circumstances
I have described to you, and which you will remember,
and that he threw a stone in circumstances which amount
without doubt to self-defence. If that stone caused the death
of the deceased - if that is the true story - he is not guilty,
because what he did was done in self-defence. If that stone
did not cause the death of the deceased then he is not guilty,
and nothing else. The accused, and that is part of his defence,
said he drove off after imposing no further injury on the
deceased. Then he is not guilty again, because whatever
caused the death of the deceased was not of his act."

In the light of these directions and of the verdict it is plain that the jury must have been satisfied beyond reasonable doubt that the appellant had killed Koklas but had not done so in self-defence. The inescapable conclusion is that they found that Koklas' death had resulted from the injuries to his skull and chest caused by the dropping on him of a heavy object such as the large stone found near his dead body. (at p212)

17. In these circumstances I think it is impossible to uphold the submission made to us by counsel for the appellant that the verdict should be set aside upon the ground that the learned trial judge did not direct the jury that if the appellant, in throwing a stone at Koklas to defend himself, had used more force than was reasonably necessary and had thereby killed Koklas he would be guilty, not of murder, but of manslaughter. His Honour had told them that if Koklas was killed as a result of being hit by the stone which the appellant said he had thrown or if they had a reasonable doubt that that might have been the fact, the appellant was entitled to be acquitted. Any further direction relating to the use of excessive force in self-defence would not only have been unnecessary but confusing and likely to operate to the appellant's prejudice. (at p212)

18. Next it was submitted that the learned trial judge should have directed the jury that if they thought that the appellant had killed Koklas but that the act causing death had been done as the result of provocation offered by Koklas they should find a verdict of guilty of manslaughter and not of murder. At the close of the evidence and in the absence of the jury, counsel for the defence raised this question with his Honour and some discussion took place. In the course of it his Honour said that he proposed to direct the jury - as he afterwards did - that if Koklas' death was caused by the appellant throwing a stone and hitting Koklas after being attacked by the latter, they must acquit on the ground that the appellant had acted in self-defence. In such case he pointed out that a direction as to provocation would be entirely unnecessary. He put it to counsel that the question of provocation could be relevant only on the hypothesis that the appellant had killed Koklas by dropping the large stone on his head and body. Defending counsel agreed that this was so and his Honour expressed doubt whether, in these circumstances, there was evidentiary material upon which provocation could be raised, pointing out that evidence of a provocative act by Koklas without more would not be enough. Counsel then addressed the jury but made no reference to provocation and, at the close of his address, his Honour, in the absence of the jury, referred to this and said that if the defence wished to raise that issue he would allow counsel to re-open his address to the jury in order to do so. Counsel replied that he did not desire to add anything to what he had already said and in this his attitude was understandable. He had submitted to the jury that the appellant had not killed Koklas and that some other person must have done so and, alternatively, that if Koklas' death had been caused by being struck by a thrown stone, it had been thrown by the appellant in defending himself against attack. In these circumstances counsel would obviously have thought it would be unwise to ask the jury to consider yet a further alternative defence, namely provocation, based upon the hypothesis that his client had dropped the heavy stone on Koklas and thus killed him. Nevertheless if the evidence did disclose sufficient material to justify the jury in finding the appellant guilty of manslaughter rather than murder upon the ground of provocation it would have been the duty of the learned trial judge to put that issue to the jury notwithstanding the fact that counsel had not done so (Mancini v. Director of Public Prosecutions (1942) AC 1, at pp 7, 8 ). (at p213)

19. I am of opinion, however, that his Honour was right in thinking that there was insufficient material upon which to allow the jury to consider the issue of provocation. There was undoubtedly evidence which, if accepted, would justify a finding that Koklas had been guilty of provocative conduct towards the appellant but, beyond all question, that is only one of the elements upon which evidence is necessary if the question of provocation is to be left to the jury. In Lee Chun-Chuen v. The Queen (1963) AC 220, at pp 229, 230 Lord Devlin, speaking for the Judicial Committee, quoted a passage from the judgment of Viscount Simon in Holmes v. Director of Public Prosecutions (1946) AC 588, at p 597 , which he described as "the classic statement of this aspect of the law". Viscount Simon had said:

"If there is no sufficient material, even on a view of the
evidence most favourable to the accused, for a jury (which
means a reasonable jury) to form the view that a reasonable
person so provoked could be driven, through transport of
passion and loss of self-control, to the degree and method
and continuance of violence which produces the death, it is
the duty of the judge as a matter of law to direct the jury
that the evidence does not support a verdict of manslaughter.
If, on the other hand, the case is one in which the view might
fairly be taken (a) that a reasonable person, in consequence
of the provocation received, might be so rendered subject to
passion or loss of control as to be led to use the violence with
fatal results, and (b) that the accused was in fact acting under
the stress of such provocation, then it is for the jury to determine
whether on its view of the facts manslaughter or murder is
the appropriate verdict."

Lord Devlin went on to say (1963) AC, at p 230 :

"This is the right test to apply both when the trial judge is
considering whether or not to leave provocation to the jury
and when an appellate court is considering whether or not it
was properly withdrawn from a jury."

And (1963) AC, at pp 231, 232 :

"Provocation in law consists mainly of three elements -
the act of provocation, the loss of self-control, both actual
and reasonable, and the retaliation proportionate to the
provocation. The defence cannot require the issue to be left
to the jury unless there has been produced a credible narrative
of events suggesting the presence of these three elements.
They are not detached. . . . The point that their Lordships
wish to emphasize is that provocation in law means something
more than a provocative incident. That is only one of the
constituent elements. The appellant's submission that if there
is evidence of an act of provocation, that of itself raises a jury
question, is not correct. It cannot stand with the statement
of the law which their Lordships have quoted from Holmes v.
Director of Public Prosecutions
(1946) AC 588, at p 597
. In Mancini v. Director of
Public Prosecutions
(1942) AC 1
the House of Lords proceeded on the
basis that there was an act of provocation - the aiming of a
blow with the fist - but held that it was right not to leave
the issue to the jury because the use of a dagger in reply was
disproportionate."

And (1963) AC, at p 233 :

"What is essential is that there should be produced, either
from as much of the accused's evidence as is acceptable or
from the evidence of other witnesses or from a reasonable
combination of both, a credible narrative of events disclosing
material that suggests provocation in law. If no such narrative
is obtainable from the evidence, the jury cannot be invited
to construct one. Viscount Simon L.C. said in Mancini v.
Director of Public Prosecutions
(1942) AC 1, at p 12
: 'it is not the duty of the
judge to invite the jury to speculate as to provocative incidents,
of which there is no evidence and which cannot be reasonably
inferred from the evidence. The duty of the jury to give the
accused the benefit of the doubt is a duty which they should
discharge having regard to the material before them, for it is
on the evidence, and the evidence alone, that the prisoner
is being tried, and it would only lead to confusion and possible
injustice if either judge or jury went outside it'. This warning
which Viscount Simon L.C. applied to provocative incidents
applies equally to loss of self-control and to the other elements
which constitute provocation in law."

With these statements I respectfully agree. (at p215)

20. In the present case there may perhaps have been some evidence, although I think this to be very doubtful, from which an inference might be drawn that the provocative act which the appellant said Koklas had committed had caused the appellant - and would have caused a reasonable person - to lose his self-control. But there was no material upon which reasonable men could properly have found that the injuries inflicted upon Koklas by dropping a heavy stone upon him were in any way proportionate to the provocation said to have been offered. Accordingly I am of opinion that neither of the grounds of appeal which involved questions of law alone and on which the appellant would have had a right of appeal had he filed his notice of appeal within the prescribed time can be sustained. (at p215)

21. It remains to consider the submission that the unsworn evidence of the two aboriginals was wrongly admitted. Section 9A (1) of the Evidence Ordinance 1939-1960 of the Northern Territory provided that:

"In all proceedings in the administration of justice, whether
of a civil or criminal nature, in which the testimony of any
aboriginal is required, the Court having jurisdiction in the
matter to which the testimony relates, may receive the
testimony without administering any form of oath, and without
any formality, except that the Court shall, before receiving
the testimony, cause it to be explained to the aboriginal that
he is required to tell what he knows about the matter to which
his testimony relates."

And it was pursuant to this provision that the learned trial judge, with the assent of counsel for the defence, allowed the unsworn evidence of the aboriginals to be given. Unfortunately neither his Honour nor counsel for the Crown or for the defence was aware that in August 1967 that section had been repealed by an amending Evidence Ordinance, No. 30 of 1967, and that shortly before then, in June 1967, an amendment had been made to the Oaths Ordinance 1939-1965 by an amending Oaths Ordinance, No. 24 of 1967, which added a new section, s. 25A. By s. 25A (1) it was provided that:

"Where a person called as a witness in a court . . . appears
to the court . . . to be incapable of comprehending the nature
of an oath or of understanding the meaning" of the affirmation
to which s. 25 of the principal Ordinance refers "the court . . .
shall, if satisfied that the person called as a witness understands
that he will be liable to punishment if his evidence is false,
declare in what manner the evidence of that person shall be
taken, and when evidence is so taken the same consequences
follow as if an oath had been administered in the ordinary
manner."

It is agreed by all concerned, including the learned trial judge who has been good enough to supply us with a report on the matter, that his Honour, being unaware of these amendments, did not direct his mind to the question whether each of the witnesses in fact understood that he would be liable to punishment if he gave false evidence nor did he declare in what manner the evidence of those witnesses should be taken. The evidence was therefore wrongly admitted (Reg. v. Paul (1890) 25 QBD 202, at pp 207, 208 ). But when the whole of the evidence is examined and regard is had to the way in which the case developed, it seems plain that the admission of the unsworn evidence could have had no influence on the result of the trial. No suggestion had been made in cross-examination that what the two aboriginals had said was untrue or that they had caused the injuries to the head and chest. The facts that the body was found in February 1968 and the place where and the condition in which it was found were overwhelmingly established by other evidence and were not matters as to which any dispute arose. The contested issues were whether the appellant had killed Koklas and, if he had done so, whether he had acted in self-defence. The provisions of the Northern Territory Supreme Court Act relating to appeals to the High Court in criminal cases do not, however, contain any proviso such as is commonly found in Criminal Appeal Acts which confer upon an appellate court a discretion to dismiss an appeal against a conviction upon the ground that no substantial miscarriage of justice has occurred. (See, for example, s. 4 (1) of the English Criminal Appeal Act, 1907.) We were referred to s. 75 of the Judiciary Act which provides that a conviction cannot be set aside upon the ground of the improper admission of evidence if it appears to the court that the evidence was merely of a formal character or not material but that section has no application to an appeal such as the present one. When it is read with ss. 72, 73, 74, 76 and 77 it is clear that it is limited in its application to appeals of the kind to which these sections refer, namely where the court before which a person is tried upon an indictment charging an offence against the laws of the Commonwealth reserves a question of law for the consideration of an appellate court and it is to be remembered that at the time those sections were enacted the type of appeal for which s. 47 (1) of the Northern Territory Supreme Court Act provides was unknown. (at p217)

22. It is necessary then to consider whether it would be proper in the circumstances of the present case to rescind the order granting special leave to appeal or whether a new trial should be ordered. If the appellant had had a right of appeal on the ground that the evidence was wrongly admitted, a right which he had lost merely because of his failure to file a notice of appeal within the prescribed time, then in the absence of a statutory power to dismiss the appeal on the ground that no substantial miscarriage of justice had occurred, I would have felt that no alternative was open other than to grant a new trial since the case is not one in which it would be proper to act under s. 47 (4) of the Northern Territory Supreme Court Act and substitute a verdict of guilty of manslaughter for the verdict found by the jury. (at p217)

23. But the appellant had not, at any stage, a right of appeal on this question of the admissibility of the evidence of the aboriginals notwithstanding the fact that all concerned are in agreement that the evidence was admitted without it first being determined by the learned trial judge as a preliminary question of fact whether each of the witnesses understood that he would be liable to be punished if his evidence was false. (at p217)

24. In these circumstances we should, in my opinion, apply the principle stated by Starke J. in Tuckiar v. The King [1934] HCA 49; (1934) 52 CLR 335, at pp 347, 348 . That was a case in which an appeal was brought by leave to this Court from the Supreme Court of the Northern Territory under s. 21 of the Supreme Court Ordinance 1911-1934, a section which did not give an appeal as of right. Leave to appeal had been granted but in the course of his judgment his Honour said:

"Under the Supreme Court Ordinance 1911-1934, s. 21,
an appeal may be brought by leave of this Court from any
conviction, sentence, decree or order of the Supreme Court of
the Territory. But, though this jurisdiction is conferred in
unlimited terms, it should nevertheless be regulated by a
consideration of circumstances and consequences that have
reference to the administration of justice itself. Unless some
substantial and grave injustice has been done in the particular
case, this Court should be slow to intervene; mere irregularities
in the course of a trial do not warrant its interference in the
administration of criminal justice." (at p218)

25. I would therefore rescind the order giving special leave to appeal and dismiss the appeal. (at p218)

ORDER

Order granting special leave to appeal rescinded.

Appeal dismissed.