Obiter

Kaporonovski v The Queen (1973) 133 CLR 209

In Kaporonovski v Queen,¹ the High Court upheld the Queensland Criminal Court of Appeal’s decision that the provocation defence under s 269 did not apply to s 320 (grievous bodily harm) of the Criminal Code Act 1899 (Qld). The provocation defence only applies to offences requiring assault as an element not proof of assault. The Court also clarified s 23 inapplicable, as the act was intentional and not independent of the applicant’s will.

COURT: High Court of Australia (McTiernan ACJ, Menzies, Walsh, Gibbs and Stephen JJ).

PARTIES: Kaporonovski (Applicant), The Queen (Respondent).

PROCEDURAL HISTORY: This is an application for special leave from the judgment of the Court of Criminal Appeal in Queensland.

• In the Queensland Supreme Court, Kaporonovski was convicted of unlawfully doing grievous bodily harm under s 320 of the Criminal Code Act 1899 (Qld) (‘Criminal Code‘).² Kaporonovski argued it was an “accident” under s 23.
• An appeal to the Court of Criminal Appeal by Kaporonovski was dismissed, affirming the victim’s injuries were a direct consequence of his unlawful act.

FACTS:

1. Kaporonovski, provoked by a verbal insult from the victim, Bajric, became involved in an altercation.³
2. During the confrontation, Kaporonovski took hold of Bajric’s wrist and pushed his hand.⁴
3. In the struggle, Kaporonovski forced a glass held by Bajric into Bajric’s face, causing it to break and inflict serious injury (face laceration and eye injury).⁵

ISSUES:

1. Whether the facts could warrant a jury finding that the applicant was not criminally responsible under s 23 of the Criminal Code?
2. Whether the defence of provocation under ss 268 and 269 of the Criminal Code apply to s 320 under the Criminal Code of unlawfully doing grievous bodily harm?

APPLICABLE LAW:

Criminal Code — Intention — Motive

Section 23 of the Criminal Code Act 1899 relevant to the issue provided:⁶

Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident.⁷

Criminal Code — Provocation Definition

Section 268 of the Criminal Code defines provocation in the context of offences involving assault.⁸ It provides that provocation includes any wrongful act or insult likely to deprive an ordinary person of self-control and induce them to assault the provocateur:⁹ Section 268(1) says:

(1) The term ‘provocation’ used with reference to an offence of which an assault is an element, means and includes, except as hereinafter stated, any wrongful act or insult of such a nature as to be likely, when done to an ordinary person, or in the presence of an ordinary person to another person who is under his immediate care, or to whom he stands in a conjugal, parental, filial, or fraternal, relation, or in the relation of master or servant, to deprive him of the power of self-control, and to induce him to assault the person by whom the act or insult is done or offered. …¹⁰

Criminal Code — Provocation Defence

Section 269 of the Criminal Code provides that provocation can be a defence to an assault if the provocation was such that it would deprive an ordinary person of self-control.¹¹ Section 269 says:

(1) A person is not criminally responsible for an assault committed upon a person who gives him provocation for the assault, if he is in fact deprived by the provocation of the power of self-control, and acts upon it on the sudden and before there is time for his passion to cool; provided that the force used is not disproportionate to the provocation, and is not intended, and is not such as is likely, to cause death or grievous bodily harm.

(2) Whether any particular act or insult is such as to be likely to deprive an ordinary person of the power of self-control and to induce him to assault the person by whom the act or insult is done or offered, and whether, in any particular case, the person provoked was actually deprived by the provocation of the power of self-control, and whether any force used is or is not disproportionate to the provocation, are questions of fact.¹²

COURT’S REASONING:

Section 23 — Criminally responsible?

The High Court examined the concept of “accident” under s 23 of the Criminal Code, which provides a defence for acts occurring independently of a person’s will or as a result of an accident.¹³ Their Honours determined this defence did not apply, as the act was the deliberate forcing of the glass against and into Bajric’s face (at [6]). The Court said:

That event did not happen by accident. It was the obvious, natural and probable consequence of the act. That act did not occur independently of the exercise of the will of the applicant. What he did was done deliberately.¹⁴

The High Court agreed with the majority of the Court of Criminal Appeal, affirming that no defence was available under section 23 of the Criminal Code.

Sections 268 and 269 — Provocation defence?

The majority of the Court of Criminal Appeal held that s 269 of the Criminal Code, which provides a defence of provocation under s 268, does not apply to offences under s 320 (grievous bodily harm). At [13], provocation in s 268 has “no application except ‘to an offence of which an assault is an element’”:

Section 268 is a definition of provocation differing substantially from the provocation which at common law serves to reduce to manslaughter a killing which would otherwise amount to murder. The term “provocation” as defined in s. 268 has, however, no application except “to an offence of which an assault is an element”.¹⁵

The High Court reasoned s 269 provides that a ‘person is not criminally responsible for an assault committed upon a person who gives him provocation for the assault’ if certain conditions exist.¹⁶ One is that ‘the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm’¹⁷ At [14]:

Prima facie an offence of which an assault is an element means an offence which is not committed unless there be an assault, for it is the definition of an offence which determines its “elements”.¹⁸

While several offences in the Criminal Code fit this criterion, others e.g. murder, manslaughter, grievous bodily harm, and dangerous driving causing death or injury, do not require assault, but may involve proof of an assault.¹⁹

The High Court considered it was not a fair interpretation in applying s 268 meaning of the words “an offence of which an assault is an element” to such offences to extend s 269 as a defence, except in cases of killing.²⁰ While this construction limits s 269 narrowly, it ensures ss 268 and 269 maintain meaningful operation without overextending their scope.²¹

Their Honours concluded (at [17]) that s 269 does not provide any defence to the crime of unlawfully doing grievous bodily harm created by s 320 and that the Court of Criminal Appeal was correct in its judgment.²²

DECISION:

The High Court upheld the Queensland Criminal Court of Appeal’s decision that the provocation defence under s 269 did not apply to the offence under s 320 (grievous bodily harm) of the Criminal Code.²³

The High Court clarified that provocation as a defence under s 269 is only available for offences where assault is an element. In examining the meaning of “an offence of which an assault is an element” in s 268, the Court concluded that an offence must inherently require an assault, rather than merely involve proof of one.²⁴

The Court also determined that section 23 of the Criminal Code did not apply, because the relevant act — the deliberate pushing of the glass — was not independent of Kaporonovski’s will.²⁵

ORDER:

The appeal was dismissed.²⁶

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FOOTNOTES:

1. Kaporonovski v The Queen [1973] HCA 35; 133 CLR 209 (‘Kaporonovski‘). ↩︎
2. Criminal Code Act 1899 (Qld) s 320 (‘Criminal Code‘). Grievous bodily harm under s 320 of the Criminal Code provides the offence of unlawfully doing grievous bodily harm against another. ↩︎
3. Kaporonovski (n 1) 215 [3]. ↩︎
4. Ibid. ↩︎
5. Ibid. ↩︎
6. Ibid 215 [4]. ↩︎
7. Ibid 220 [23]. ↩︎
8. Criminal Code (n 2) s 268. ↩︎
9. Ibid. ↩︎
10. Ibid. ↩︎
11. Ibid s 269. ↩︎
12. Ibid. ↩︎
13. Kaporonovski (n 1) 215 [4]–[9]. ↩︎
14. Ibid 215 [6]. ↩︎
15. Ibid 217 [13]. ↩︎
16. Ibid. ↩︎
17. Ibid. ↩︎
18. Ibid 218 [14]. ↩︎
19. Ibid. ↩︎
20. Ibid. ↩︎
21. Ibid. ↩︎
22. Ibid 219 [17]. ↩︎
23. See Kaporonovski (n 1). ↩︎
24. Ibid. ↩︎
25. Ibid. ↩︎
26. Ibid. ↩︎