Provocation Defence

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Provocation is a partial defence to murder which reduces a murder charge to manslaughter if the accused was sufficiently provoked by his victim. Provocation will succeed if the both of the following tests are satisfied:

  1. Subjective test: the act causing death must be the result of a loss of self-control induced by the conduct of the deceased towards or affecting the defendant (did the accused lose self control because of the provocation and thus committed the act causing death?): s 23 (2) (a), Crimes Act 1900 (NSW).
    • It is unclear whether the provoking conduct must be within sight or hearing of the accused.
    • Words alone can constitute provocation, and no need for the words to be an actual insult: Lees.[1]
    • No requirement of 'sudden and immediate' response to provocation: s 23 (3) (b), but passage of time decreases the possibility that the accused acted while still under a 'loss of self control': Chhay;
  2. Objective test: was the provocation bad enough so that an ordinary person (not 'reasonable') in the position of the defendant could (as opposed to 'would': Heron[2]) have lost his self control to the degree that he forms intent to kill or inflict grievous bodily harm: s 23 (2) (b). This is broken down into 2 limbs (:Stingel)
    1. Assess gravity/degree of provocation the defendant faced.
      • Take into consideration the attributes of the accused (age, sex, race, past events and relationships (totality of conduct) etc: Stingel; Masciantonio.[3]
    2. Asses the response of the ordinary person to that degree of provocation (would an ordinary person lose self control in the face of that degree of provocation).
      • Can't include personal attributes such as ethnicity etc except for age: Stingel.

If the both tests are satisfied, the defendant will be convicted of manslaughter instead of murder: s 23 (1).

This article is a topic within the subject Criminal Laws.

Contents

Required Reading

Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011), pp. 565-598.

Introduction

Provocation is a partial defence for murder in cases where the act (/omission) causing death was provoked by some conduct of the deceased. It reduces a charge of murder to manslaughter.

History

[4] The idea behind a defence for provocation is basically the recognition of human frailty and the tendency to overreact. It has deep historical ties:

  • The first reported case was in the 1600's when a man discovered another having sex with his wife and killed him on the spot. He was given a lenient sentence of manslaughter because 'there could be no greater provocation than this'.
  • The doctrine developed because of the culture of the relevant era - it was a culture where people walked around armed, and adhered to a code of honour which required them to retaliate to insults and provocation. Protecting one's honour by a violent response was considered not merely permissiable, but honourable and esteemed.
  • By the 1700's, the courts outlined categories of provocations which were considered sufficient for a violent response and even death. Physical assault and adultery were some of those categories.
  • Eventually the doctrine began shifting as the views of society shifted in the 1800s. The doctrine was now based on the concept not of a 'justified reaction', but as being provoked to the degree of losing one's self control. This also included the use of an 'ordinary person' test.

Legislative Provisions

Manslaughter is provided for in s 23 of the Crimes Act 1900 (NSW), for which the subsections are summarised as follows:

  1. If the act causing death was the result of provocation, murder becomes manslaughter.
  2. An act is considered to be the result by provocation if it satisfies all of the following requirements:
    • (a) the act is the result of a loss of self-control induced by the conduct of the deceased (including grossly insulting words or gestures) towards or affecting the defendant, AND
    • (b) the provocation was such that an ordinary person in the position of the defendant could have lost his self control to the degree that he forms intent to kill or inflict grievous bodily harm.
  3. For the purposes of determining whether an act was done under provocation, the following elements do not disturb a finding of provocation:
    • (a) a lack of proportionality between the the provocation to the act causing death (ie, overreactions);
    • (b) a lack of a sudden act (act doesn't have to be sudden)
    • (c) the act causing death was an act done with any intent to take life or inflict grievous bodily harm.
  4. To raise provocation, defence has an evidentiary burden, which, if satisfied, must be negatived beyond all reasonable doubt by the prosecution.

These wide provisions have been discussed by the common law.

Conduct Must Occur Within Sight or Hearing of the Accused

[5] One of the common law requirements is that, to constitute provocation, the conduct of the deceased must have occurred in within the sight or hearing of the accused (as opposed to occurring in his absence and then being told by another, also known as 'hearsay provocation').

  • This means that hearing about the conduct of another person and flying into a rage does not count as provocation.

This was discussed in Davis:

  • The Court of Appeal said that the conduct of the deceased has to be done in the presence (within sight or hearing) of the accused.
  • The High Court refused to hear the appeal because of other reasons, but actually indicated they disagree with the court of Appeal - there is no such requirement.

The NSWLRC recommended that the legislation be amended to specifically state that the defence of provocation applies to situations where the conduct of the deceased occurred outside of the accused's presence.

  • It even went as far as to recommend that the defence might be available in some situations where the provoking conduct was not the deceased's but another person's.

In conclusion, it is not completely clear whether it is necessary for the conduct to occur within the sight or hearing of the accused. The High Court seems to think so, but it did not from a judgment so it doesn't have real legal authority. However, it does indicate that the High Court might accept it on appeal.

Words Alone

A proposition was raised that words alone, unless they constitute 'gross insult', cannot form the basis for the provocation defence.

This was denied in Lees:[6]

  • Facts: the deceased made some remarks to the accused about the accused's father suicide and the accused killed him in a rage. The prosecution alleged that words alone cannot constitute provocation and that that the words have to constitute an insult (and not any remark).
  • Held: words can indeed constitute provocation, regardless of whether they are an insult or not. There is no such confinement.

Self-Induced Provocation

[7] Under the common law position, if the provocation was in some way self-induced by the accused (ie, the accused did something to invite provocation from his victim), than it will not constitute a basis for the provocation defence.

This principle was set in Edwards,[8] which dealt with blackmail:

  • Facts: the accused blackmailed the deceased, who then attacked him with a knife. The accused lost his self control and killed the deceased. He claimed provocation, the prosecution said that the provocation was self-induced by the blackmail.
  • Held: the following principles apply to blackmail:
    1. A blackmailer should expect a hostile and maybe even violet response in retaliation and cannot rely on that retaliation as provocation.
    2. However, if the retaliation is is really extreme, it will constitute provocation.
    3. This is ultimately a question of degree, which is up to the jury.

Lawful Conduct

[9] There used to be a requirement that the provoking conduct had to be unlawful, however this requirement is obsolete.

The Subjective Test

[10] The first limb of the test set in s 23C requires the jury to determine whether the act causing death was a result of the accused's loss of self control (because of provocation). Since it is an inquiry into the mind of the accused, it is a subjective test.

In the past, it was extremely relevant to this subjective determination of 'loss of self-control' if the act causing death was done 'suddenly' and 'immediately' after the provocation (ie, loss of self-control can only be reflected by sudden and immediate acts). This was eroded by both the common law and legislation (the current provisions specifically rule out sudden action a requirement).

This was discussed in Chhay (before the current provisions):

  • The requirement of sudden and immediate response reflects an anachronistic view of provocation which favours male frailty as opposed to female frailty. It no longer applies today.
  • However, the time elapsed between the provocation and the act of killing still provides some indication, because the more time which passes indicates that there is more chance that the person could have regained his self-control.
  • Provocation is not a question of whether the deceased's provocation meant he deserved to be punished, but simply whether the accused has lost self-control. Premeditated revenges are still murder and will not be reduced to manslaughter even if there was provocation.

The court was thus trying to undo the requirements of sudden and immediate action before the legislative changes. This can be seen in R[11] and Hill,[12] which had very similar facts and judgments:

  • Facts: the accused was a wife who was subject to years of extreme abuse. She eventually cracked and killed her husband.
  • Held: the deceased's actions on the fatal night must be considered against the background of the entire relationship. This means that even a seemingly innocuous statement of the deceased may, in the context of the relationship's history, constitute serious provocation which might cause the accused to lose her self-control, and thus be done suddenly and immediately.

The Objective (Ordinary Person) Test

[13] In line with the common law, section 23(2)(b) basically requires:

  • That the provoking conduct of the deceased was such as could have induced an ordinary person in the position of the accused to have so far lost self-control as to have formed an intent to kill, or to inflict grievous bodily harm upon, the deceased.

The ordinary person test and its many features was discussed in Stingel:

  • The objective test for provocation is a two stage test:
    1. Assess gravity/degree of provocation the defendant faced.
      • In assessing this, attributes of the accused may be taken into account, since that is putting the provocative insult into context and thus does not undermine the 'objective' test. This includes 'age, sex, race, physical features, personal attributes, personal relationships and past history may be relevant... even mental instability or weakness'.
    2. Asses the response of the ordinary person to that degree of provocation (would an ordinary person lose self control in the face of that degree of provocation).
      • This test doesn't include any personal characteristics of the defendant bar age, because everyone goes through aging and its thus an ordinary process.
USG notes: despite the High Court's insisting that the objective test is not undermined by the first limb of the test (which includes a wide array subjective attributes), it's difficult to see how he 'objectiveness' of this test is not compromised.

Another issue debated was the whether the provocation needed to be such that 'could' (possibly) induce an ordinary person to lose self control, or 'would' (definitely) induce the loss of self control.

  • The provocation only needs to be such that could induce an ordinary person to lose self control (as opposed to 'would'). Construing it in a narrower way is wrong.[14]

The Characteristics of the Ordinary Person

[15] Stingel established strict limits on the qualities of the accused which may be attributed to the ordinary person in assessing loss of control. The test is a consideration of 'the powers of self-control within the range or limits of what is "ordinary" for a person of the relevant age.'

This has lead to debate over whether other factors should be considered.

Ethnicity

[16] This was discussed in Masciantonio:[17]

  • Facts: the defendant had long been concerned about his daughter’s treatment by the deceased. There was evidence that the deceased had frequently physically abused her and had recently left her and their child after taking most of their joint property and savings. On the day in question, there was a confrontation in the street, a struggle ensued and the defendant stabbed the deceased a number of times.
  • Held: applied Stingel:
    • In determining the gravity of the provocation, attributes and characteristics of the accused are relevant (including ethnicity).
    • In determining whether provocation is sufficient to cause an ordinary person to lose self control, subjective factors such as ethnicity cannot be considered.

McHugh J,dissenting, noted that the distinction between the relevance of personal attributes in determining the effect of the conduct but not the issue of self-control is not reflective of human behaviour, and does not account for cultural differences. To remedy this by incorporating personal attributes (to the self control part), the ordinary test would have to be abolished.

  • He argued that the ordinary person standard would not be compromised by incorporating the general characteristics of an ordinary person of the same age, race, culture and background of the accused on the issue of self-control.
  • Without incorporating these characteristics, he argues that the law of provocation is likely to result in inequality and injustice because the standard reflects the values of the dominant class and not cultural minorities.
  • In answer to the argument that this standard may result in different verdicts for different classes of persons, he argued that this would be a natural consequence of different objective standards a multicultural society.
  • In his dialogue on multiculturalism, McHugh J referred to Sir John Barry’s description of the ordinary person as a 'mythical person'[18] and S Yeo’s 'Self-Control in Provocation and Automatism',[19] which critiqued Stingel.
  • See the Textbook pp. 586-587 for more sources on the debate surrounding the inclusion of ethnicity in the ordinary person test.

Aboriginality

[20] The NT Supreme Court has continued to apply a test which is inclusive of Aboriginality after the decision of Stingel.

  • In Mungatopi,[21] the court confirmed the pre-Stingel approach that the phrase should be contextualised to encompass the Aboriginal and other characteristics of the accused.
    • In this case it would mean 'an ordinary Aboriginal male person living today in the environment and culture of a fairly remote Aboriginal community'.
  • In Jabarula v Poole,[22] the court noted that the ordinary person test present a 'general problem in Australia’s pluralistic society: how to balance individualised justice and cultural pluralism with the need to create a broad sense of community, common purpose and commonly shared values. While Aboriginal communities in the Territory remain as distinct communities possessing separate culture and identity and a degree of physical separation from the wider community, so the standard of the “ordinary person” will vary in its application in the Territory.'

Stephen Gray notes some difficulties associated with this approach, particularly when the judges and juries are not of the ethnic background of the accused or victim and where no expert evidence is available. He highlights the fine line between cultural sensitivity and stereotyping.[23]

This was also discussed in the notorious case of Tuckiar:[24]

  • Facts: Tuckiar, an Aboriginal leader was convicted of murder and sentenced to death for the spearing of a police officer at a remote location on Woodah Island in the NT.
  • Held: the trial judge failed to direct the jury on provocation and, in particular, the impact of the police's capturing, handcuffing and detaining a group of Aboriginal women (whom Tuckiar was bound to protect) on 'uncivilised Aboriginals'. The conviction was quashed.

Gender and the Battered Woman Syndrome (BWS)

[25] The exclusion of gender from the ordinary person test is ironic given the context of challenges to reform the law of provocation in the late 1970s and early 1980s because of a growing public perception that the defence was biased against women.

  • In rejecting the inclusion of gender in the self-control test of the ordinary person, the court in Stingel drew from Camplin,[26] however, in Camplin Lord Diplock said that the jury should have been directed to the measure of self-control by that expected 'of an ordinary person of the sex and age of the accused'.[27]
    • Lord Simon noted that it did not make sense to strip a woman of her femininity before she qualified as a reasonable woman.[28]
    • In an analysis of Camplin, Hilary Allen referred to the 'unthinkability' of a 'non-genedered legal subject'.[29]

Evidence of BWS was held to have been properly admitted as relevant to the assessment of the gravity of the provocation and not the self-control, in Osland:[30]

  • Facts: the ordinary person 'is not likely to be aware of the heightened arousal or awareness of danger which may be experienced by battered women.' BWS was said to be a matter for expert evidence.

Intoxication

[31] Even before Stingel, courts preferred not to take intoxication into account as part of the 'circumstances of the accused'.

  • Intoxication may be relevant for the purposes of the subjective aspect of provocation – ie, whether the accused actually lost the power of self-control.
  • In Croft,[32] the court concluded that in assessing loss of self-control, 'it is the ordinary man unaffected by intoxicating liquor who is contemplated by the law'.

Homosexual Advances

[33] Considerable controversy surrounds the powers of self-control of the ordinary person when faced with a homosexual advance.

This issue was considered in the case of Green:

  • The 'sexual abuse factor' was relevant to the subjective aspects of provocation and the gravity of the provoking conduct but not to the objective self-control test.

A recommendation was made by the working party of the Attorney-General of NSW that trial judges be issued with standard direction for juries to be given 'in any trial of a violent offence in which the unusual sexuality of the victim had been placed before the jury'.

  • The direction would include a statement that the person’s background is not relevant and remind the jury that there should be no prejudice against the deceased for this reason.

Reform Proposals

[34] Academic debate is generally divided along the lines of repeal or reform to the defence of provocation.

  • Most debate centres on the common law formulation.
  • Some have called for the abolition of the defence because of gender bias:
    • 'it is largely from a male-centred perspective that the reduction of an intentional killing from murder to manslaughter is capable of being regarded as a compassion to human infirmity'.[35]
  • 'As I still insist on a total ban on men raising excuses for killing women at any stage of the criminal justice process, my position remains, effectively one of abolitionism unmodified'.[36]
  • In 1982 the Victorian Law Reform Commission followed other bodies in recommending the removal of the ordinary person test.
  • Attitudes towards provocation hardened in the 1990s.
  • In Defences to Homicide: Final Report (2004), the Victorian Law Reform Commission identified the main criticisms of the defence:
    • Loss of self-control should not form the basis of the defence;
    • Provocation is gender biased;
    • Provocation privileges loss of self-control as the basis for a defence;
    • Provocation promotes a culture of blaming the victim;
    • Provocation can be taken into account in sentencing;
    • The test is conceptually confused, complex and difficult.
  • A more supportive approach was taken by the NSW Law Reform Commission in Partial Defences to Murder: Final Report (2004):
    • There are moral and practical reasons for retaining the defence;
    • The label of manslaughter as opposed to murder is significant;
    • Sentencing decisions for murder will not be as acceptable to the public when they are diminished by provocation;
    • The moral blameworthiness of the killer is significantly reduced when the killing is the result of gross provocation.
    • The Commission recommended combining provocation with excessive self-defence.

End

This is the end of this topic. Click here to go back to the main subject page for Criminal Laws.

References

Textbook refers to Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011).

  1. [1999] NSWCCA 301.
  2. [2003] HCA 1722.
  3. (1995) 183 CLR 58.
  4. Judgment from Smith [2000] UKHL 49 and Textbook, pp. 565-7.
  5. Textbook, pp. 568-71.
  6. [1999] NSWCCA 301.
  7. Textbook, p. 573.
  8. [1973] AC 648.
  9. Textbook, p. 573.
  10. Textbook, pp. 573-8.
  11. (1981) 28 SASR 321.
  12. (1981) 3 A Crim R 397.
  13. Textbook, pp. 578-4.
  14. Heron [2003] HCA 1722; Anderson [2002] NSWCCA 194.
  15. Textbook, pp. .
  16. Textbook, pp. 585-7.
  17. (1995) 183 CLR 58.
  18. Jeffrey [1967] VR 467 at 478.
  19. (1992) 14 Syd LR 3.
  20. Textbook, pp. 587-8.
  21. (1991) 57 A Crim R 341.
  22. (1989) 42 A Crim R 479.
  23. Criminal Laws: Northern Territory (2004) In Textbook, p. 587.
  24. (1934) 52 CLR 335.
  25. Textbook, p. 588.
  26. [1978] AC 705.
  27. [1978] AC 718.
  28. [1978] AC 705.
  29. H Allen, Justice Unbalanced, Gender, Psychiatry and Judicial Decisions (1987) at 37.
  30. (1998) 159 ALR 170.
  31. Textbook, pp. 588-9.
  32. [1981] 1 NSWLR 126.
  33. Textbook, pp. 589-95.
  34. Textbook, pp. 595-8.
  35. J Horder, Provocation and Responsibility (1988) at 194.
  36. A Howe, “Provocation in Crisis – Law’s Passion at the Crossroads” (2004) 24 Aust Feminist LJ 53 at 61.
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