INTRODUCTION

3.1 Under common law and statute law in New South Wales, a person who would otherwise be guilty of murder may have his or her criminal liability reduced to manslaughter if the killing occurred in circumstances of provocation.

3.2 Briefly, at law, provocation in New South Wales involves circumstances which caused the accused actually to lose self-control and commit the fatal act, and which would have been sufficient (in the view of the finder of fact - usually the jury) to cause an “ordinary person” in the position of the accused also to lose self-control to this degree. When fairly raised by the evidence, provocation becomes a matter which the prosecution is required to “negative” or disprove, as part of the its general obligation to prove its case beyond a reasonable doubt.

3.3 Although provocation also is available in some Australian jurisdictions as a complete defence to all crimes involving an element of assault, in New South Wales the scope of the defence is limited to reducing murder to manslaughter. As a practical matter, however, provocation can be - and often is - raised as a mitigating factor to be taken into account in sentencing after a conviction for an offence involving an element of assault. In this Paper, the Commission deals only with provocation as a “partial defence” to murder.

3.4 The theoretical underpinning for the defence is unclear. Some defences are based on the idea that the act in question was “justified” in the circumstances. Such defences of justification - which go to the propriety of the act - would include self-defence (broadly, incorporating defence of another and defence of property) and acting under lawful authority; for example, using reasonable force to prevent the commission of a crime or to effect a lawful arrest. In such cases we say that, on balance, it was proper for the actor to “take the law into his or her hands” because the harm caused is outweighed by the actual or potential harm prevented.

3.5 Another class of defences excuse the actor - rather than the act - having regard to some attribute or disability which wholly or partially diminishes the person’s moral responsibility. Examples of such excuse-based defences include the defence of mental illness (formerly, the “insanity defence”), diminished responsibility, infanticide, and incapacity (immaturity). In such cases we say that the act was wrong, but it would nevertheless be inappropriate to exact the full punishment because of the personal circumstances of the accused.

3.6 The categorisation of provocation is somewhat problematic, however.¹ It is often said in the cases and commentary that the defence of provocation is “a concession to human frailty”.² This implies that the accused person’s conduct is partially excused because of the highly provocative circumstances in which the killing occurred, rather than the killing itself being justified in the circumstances. This would explain a case in which, for example, a baby’s continued crying was held to be capable of amounting to provocation at law.³ However, other aspects of the judicial and statutory development of the law of provocation - such as the imposition of an objective (“ordinary person”) test, the relevance of the “proportionality” of the response to the provocation, and the need for the provocation to emanate from the victim - resonate much more with the “balancing” concerns traditionally associated with justifications.

3.7 No doubt the difficulty involved in properly locating the theoretical basis of provocation is echoed in the contemporary social ambivalence towards the continued viability of the defence - or, at least, its application in particular cases. While the community places a very high value on human life, the law in this area “concedes” that otherwise decent people may be provoked beyond human endurance and that this should partially excuse even the use of lethal force in response. On the other hand, there is a growing realisation that in practice the defence may operate to partially condone violence in precisely those circumstances in which the society has been seeking to reduce the use of violence and to treat its use much more seriously.

3.8 Empirical studies (see below at 3.89 - 3.101) show that provocation is often an issue in cases in which men kill men during arguments and in which men kill women out of jealousy and in domestic situations. Given this, we must assess to what extent we as a community are prepared to recognise a reduced level of culpability for what many consider to be male patterns of aggression. We need also to look at how these peculiarly male patterns may operate to deny female victims of domestic violence an adequate legal defence. In this context it has been suggested that society cannot be heard to stress the importance of the preservation of human life where it places people in very high risk situations and provides no adequate legal recourse.⁴ Such an approach is not inconsistent with the historical bases of the law of provocation which, far from focusing on individual frailties, proceeded by reference to categories of people in situations which the prevailing social practices deemed highly provocative.⁵ These issues are important when considering the need to reform the law of provocation and will form the basis of the discussion in this Chapter.

BRIEF HISTORY

3.9 The origins of the current defence of provocation can be traced to Anglo-Saxon and Norman times when a distinction began to be drawn between deliberate premeditated killings, which were capital offences, and those killings which occurred in the heat of passion.⁶ This distinction became clearer in the sixteenth century when killings “upon a sudden affray” were prevalent. This was because drunken brawls and duels were extremely common and because the wearing of weapons ensured that these encounters often had fatal results.⁷ Their very prevalence, along with societal acceptance of the bearing of arms, led such killings to be perceived as a less morally reprehensible form of homicide than cold-blooded premeditated slayings.⁸

3.10 Thus Coke wrote in 1628 that:

Homicide is called chance medley ... for that it is done by chance (without premeditation) upon a sudden brawle, shuffling or contention.⁹

These killings by “chance medley” were viewed as “excusable homicide” and, along with causing death by misadventure, were punished by forfeiture of property and the exaction of the deodand. The modern defence of provocation¹⁰ (and, to some extent, self-defence) developed out of this early approach.

3.11 However, by the early seventeenth century, another trend was evident in the law of homicide. Malice aforethought was considered to be an essential element of murder and killings were presumed to have been committed with malice. This presumption could, however, be rebutted by evidence of provocation.¹¹ Coke wrote that malice would be implied where “one killeth another without any provocation on the part of him that is slain”.¹² In cases where malice was not implied, the act was not murder but was, as Brown has commented, “hooked on the accommodating peg of the common law felony of manslaughter ... which for purposes of reprehensibility and punishment was set roughly between ‘excusable’ homicide and murder”.¹³

3.12 Chance medley fell into disuse in the eighteenth century, its decline beginning a century earlier with the Statute of Stabbing (1604).¹⁴ But along with this decline came more and more frequent recourse to direct notions of provocation, a process Brown describes as the “child swallowing up the parent”.¹⁵ Judicial statements mapping out the scope of provocation occurred throughout the seventeenth century.¹⁶

3.13 Hale provided a number of illustrations in answer to the question “what is such a provocation as will take off the presumption of malice in him that kills another”¹⁷ and in Mawgridge (1707)¹⁸ Holt CJ summarised those categories of act which would constitute sufficient rebuttal of the presumption of malice to reduce an offence from murder. These were: (1) angry words followed by a physical assault, even if it were nose pulling or a “filliping upon the forehead”; (2) false imprisonment; (3) the aiding of someone being unlawfully deprived of liberty; and (4) finding one’s wife engaged in adultery.

3.14 Thus, by the eighteenth century, those features which came to mark the modern law of provocation were beginning to be formed. A distinction between “mere words” and physical assaults was made.¹⁹ The lawfulness of the actions of the provoker were relevant.²⁰ Where premeditation was evident, the defence was not available and consequently there was a requirement of “suddenness”.²¹ In Foster’s words this requirement arose in that provocation was a killing “owing to a sudden Transport of Passion, which through the Benignity of the Law, is imputed to Human Infirmity”.²²

3.15 The nineteenth century saw the rise of a more objective view of provocation and a requirement of “proportionality” began to be developed. According to East, for example, retaliation that is “outrageous in its nature ... and beyond all proportion to the offence ... is rather to be considered as the effect of a brutal and diabolical malignity than of human frailty”.²³

3.16 As the Mawgridge position (whereby any physical assault was sufficient) was gradually abandoned, an objective standard was introduced to enable the jury to gauge whether or not the conduct was sufficiently provocative.²⁴ Thus in Welsh, Keating J told the jury that:

What I am bound to tell you is, that in law it is necessary that there should have been a serious provocation in order to reduce the crime to manslaughter, as, for instance a blow and a severe blow - something which might naturally cause an ordinary and reasonable minded person to lose his self-control and commit such an act.²⁵

3.17 The first half of this century saw the English courts adopting a very rigorous test of provocation. The objective test was confirmed in Alexander²⁶ and Lesbini.²⁷ In Mancini a stringent objective test, along with a requirement of suddenness and proportionality was applied.²⁸ In Holmes,²⁹ despite the historical requirement of a sudden intention to murder, the House of Lords found that the doctrine rested on negativing any sort of intention to murder. Finally, in Bedder,³⁰ the objective test was interpreted so restrictively that none of the personal characteristics of the accused were attributed to the reasonable person at all.

3.18 Coss has described this period as “the erosion of compassion”.³¹ Indeed, so strenuous had the test become that, prior to the enactment of the Homicide Act in 1957, doubts were expressed as to the continued existence of the defence.³² Legislative intervention came with the enactment of the Homicide Act 1957 (UK). Section 3 provided that:

Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man.

3.19 Despite the legislation, the doctrine of provocation had become, in Coss’s words, “a self-spun web of complexity”.³³ It was the 1978 decision of Camplin³⁴ which effected substantial change, primarily in respect of the ordinary person test.

3.20 The move towards a broader doctrine of provocation had started somewhat earlier in Australia. The New South Wales legislature had recognised as early as 1883 that “mere words” could be provocation when the Criminal Law Amendment Act abolished the common law rule that insulting words alone were not sufficient to constitute provocation. In Parker,³⁵ the requirement of “suddenness” was considerably broadened. With respect to the interpretation of the objective test, in the Northern Territory, Kriewaldt J instructed juries in a number of cases involving tribal Aboriginal defendants that the ordinary person was a reasonable tribal Aborigine.³⁶ In Enright the fact of being “illegitimate” was permitted to be attributed to the ordinary person,³⁷ and in Moffa the High Court allowed that the ethnic derivation of a person could be relevant in some circumstances.³⁸

CURRENT LAW IN NEW SOUTH WALES

3.21 While New South Wales has a statutory provision dealing with provocation, prior to 1982 s 23 of the Crimes Act 1900 (NSW) was interpreted by the courts as essentially reflecting the common law defence.³⁹ In the early 1980s a number of highly publicised cases of domestic killings highlighted the inadequacies of the prevailing law of homicide, in particular the defence of provocation and the mandatory penalty for murder.⁴⁰ In 1981 the government of New South Wales established a Task Force on Domestic Violence which recommended (among other things) the abolition of the mandatory life sentence for murder and the reformulation of the defence of provocation. The Crimes (Homicide) Amendment Act 1982 (NSW) was introduced to implement these recommendations. Section 19 of the Crimes Act was amended to change the punishment for murder and a new s 23 dealing with the defence of provocation was substituted. Section 23 now provides that:

(1) Where, on the trial of a person for murder, it appears that the act or omission causing death was an act done or omitted under provocation and, but for this subsection and the provocation, the jury would have found the accused guilty of murder, the jury shall acquit the accused of murder and find the accused guilty of manslaughter.

(2) For the purposes of subsection (1), an act or omission causing death is an act done or omitted under provocation where:

(a) the act or omission is the result of a loss of self-control on the part of the accused that was induced by any conduct of the deceased (including grossly insulting words or gestures) towards or affecting the accused; and

(b) that 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,

whether that conduct of the deceased occurred immediately before the act or omission causing death or at any previous time.

(3) For the purpose of determining whether an act or omission causing death was an act done or omitted under provocation as provided by subsection (2), there is no rule of law that provocation is negatived if:

(a) there was not a reasonable proportion between the act or omission causing death and the conduct of the deceased that induced the act or omission;

(b) the act or omission causing death was not an act done or omitted suddenly; or

(c) the act or omission causing death was an act done or omitted with any intent to take life or inflict grievous bodily harm.

(4) Where, on the trial of a person for murder, there is any evidence that the act causing death was an act done or omitted under provocation as provided by subsection (2), the onus is on the prosecution to prove beyond a reasonable doubt that the act or omission causing death was not an act done or omitted under provocation.

(5) This section does not exclude or limit any defence to a charge of murder.

The elements of the defence - the act of provocation

The nature of the provocation - mere words

3.22 It is clear from s 23(2)(a) of the Crimes Act that words - if “grossly insulting” - can be sufficiently provocative conduct for the purposes of the defence. This has been the case in New South Wales since s 370 of the Criminal Law Amendment Act 1883 abolished the common law rule that insulting words alone were not sufficient to constitute provocation. Indeed recent cases show that even at common law the “mere words” rule is now loosely applied, if not entirely obsolete.⁴¹

The nature of the provocation - adultery

3.23 The history of the defence reveals that finding one’s spouse in an act of adultery always has been regarded as sufficient to constitute provocation.⁴² While the common law no longer conceives of the provocation in terms of categories, it is probably still true that adultery is usually enough to satisfy the defence.⁴³ This aspect of the law requires careful consideration in light of the values of contemporary society. The basis of this element - the view expressed in Mawgridge that “jealousy is the rage of a man and adultery is the highest invasion of property”⁴⁴ - is entirely inappropriate for a society that views women as full members of society with equal rights to men and not as objects of property. It is important to consider, therefore, the degree to which we as a community are prepared to countenance the use of the defence of provocation by jealous and thwarted individuals who resent losing what they regard as “belonging” to them.

Must the provocative conduct be unlawful?

3.24 Section 23 is silent on whether the provocative conduct must have been unlawful and it appears that the common law is unclear on this issue. In The Queen v R two judges of the South Australian Full Court were of the opinion that the provocative conduct need not be unlawful.⁴⁵ However Zelling J thought that unlawfulness was still a requirement. Gillies considers that the courts have implicitly recognised that unlawfulness is not an element of the defence by its omission from standard formulations of the doctrine.⁴⁶

3.25 It may be the case that the provocative conduct will, in fact, often be unlawful - either by constituting criminal assault or because the insult is so gross as to tend to induce a breach of the peace.⁴⁷ O’Connor and Fairall argue convincingly that if the defence is based on loss of control, there is no justification for a requirement of unlawfulness.⁴⁸ In practical terms, such a requirement would lead to contrived and unnecessary arguments about whether the words of the victim could have amounted to a breach of the peace or to some other offence, such as “unseemly words”.⁴⁹

3.26 Finally, although s 23 is silent on the question, it appears that the common law rule⁵⁰ that a lawful arrest does not amount to provocative conduct forms part of the law in this State.

The provocation must take place in the presence of the accused

3.27 The common law rule that provocation must take place in the presence of the accused was confirmed in Victoria in Arden.⁵¹ Although s 23 does not specifically contain a requirement of presence, it has been construed to reflect the common law in this respect by the New South Wales Court of Criminal Appeal.⁵² This rule is justified on the basis that if the provocation is merely hearsay, then there is introduced:

an element of belief and there is nothing tangible upon which the accused can be said to have acted.⁵³

3.28 It has been said that the requirement of presence is not without value in that it removes weak and unmeritorious claims from the jury.⁵⁴ However, there have been a number of criticisms of the rule. First, it has been argued that the justification based on belief may not be apt where the accused has every reason to believe the informant.⁵⁵ In terms of the effect on the defendant, a belief may be every bit as powerful as direct provocation. In the context of self-defence, for example, a reasonable belief based on hearsay is sufficient.⁵⁶ Secondly, Lanham points out possible problems with the formulation of the requirement in terms of visual perception of the incident.⁵⁷ Thirdly, its retention in New South Wales runs counter to the legislative intent behind the 1982 amendments which the second reading speech reveals to be to change the common law position with respect to hearsay provocation.⁵⁸ It has been suggested that the requirement of presence be interpreted such that provocation will be available if:

the defendant believes on reasonable grounds both that the provocative conduct has occurred and that the victim perpetrated the provocative act.⁵⁹

3.29 It should be noted that recent cases have gone a long way towards weakening this requirement. In particular, those cases which deal with a long series of provocative incidents, most often in the context of domestic violence, allow a prior series of events to be taken into account. For example in The Queen v R words and conduct which occurred not in the presence of the accused were taken into account “as part of the background against which what is said or done by the deceased to the killer is to be assessed”.⁶⁰

To whom must the provocation be directed?

3.30 At common law it was arguable that provocation directed at someone other than the accused could constitute provocation.⁶¹ This is more clearly the case under s 23, since the words “towards or affecting” the accused are sufficiently broad to include provocation directed at a third party. In Quartly⁶² the New South Wales Court of Criminal Appeal has confirmed that provocation under s 23 need not be directly aimed at the defendant. This approach is sensible if the focus of provocation law is loss of self-control and any tenuous or spurious connections between the defendant and the person to whom the actions are directed can be dealt with under the ordinary person test.⁶³

From whom must the provocation emanate?

3.31 The general rule at common law is that provocation must emanate from the deceased. Thus, if the defendant kills the victim under provocation from a third party, the defence may not be available. Section 23 refers specifically to the “conduct of the deceased”. There are exceptions to this rule; for example, if the retaliation accidentally kills the victim the deceased may be able to argue provocation on the basis of the doctrine of transferred malice.⁶⁴ Again, it appears that if the defendant held an honest, reasonable but mistaken belief that he or she was being provoked, then he or she may still rely on the defence of provocation despite the fact that there is no actual provocation emanating from the victim.⁶⁵ In the recent Victorian case of Voukelatos⁶⁶ two judges thought that wholly delusionary or imagined conduct could form the legal basis for a plea of provocation. Finally, courts have been more willing to attribute the conduct of another to the deceased if there is a close association between the provoker and the deceased.⁶⁷

3.32 It has been suggested that, despite the exceptions, the requirement that the provocative conduct must stem from the victim is inconsistent with the excusatory nature of the defence and its purported concession to human frailty.⁶⁸

Self-induced provocation

3.33 The old s 23(2)(a) provided that the provocation could not be caused by any act of the defendant but the new New South Wales legislation is silent on this issue. However, the current section does require the defendant to have been “induced” to lose control by the conduct of the victim. This may mean that “self-induced provocation” is no defence in New South Wales although the issue does not seem to have arisen for decision.

3.34 At common law, the Privy Council in Edwards held that while a wrongdoer (here a blackmailer) could not rely on the predictable result of his or her actions in order to found a defence of provocation, a reaction that went to extreme lengths could be viewed by the jury as provocation.⁶⁹

A final act of provocation. Must there be a trigger?

3.35 The law of provocation requires an identifiable act of provocation. In other words an accumulation of provocative incidents, however abusive or violent, will not suffice in the absence of a provocative “trigger”. Although recent cases such as Hill⁷⁰ and The Queen v R⁷¹ take into account the whole relationship and history in terms of assessing the gravity of the final provocative conduct, they still require there to be this final act. As O’ Brien CJ opined in Croft:

the whole doctrine of provocation fundamentally depends upon [the existence of some provocative incident] ... it is never sufficient that there simply be a history of violence and abusive conduct on the part of the deceased.⁷²

3.36 It is questionable whether this is, in fact, a legal requirement. For one thing, it is not clear that there is anything in Parker⁷³ which suggests that this is so. Even more to the point, there is nothing in the terms of s 23 which requires it - the section refers only to “any conduct of the deceased”.

3.37 Whether or not this “requirement” is consistent with the legislation and with High Court authority, it seems to have been accepted as a necessary one and it has limited the use of the defence for women who kill their abusers after long term domestic violence, although recent cases have watered it down significantly. In the case of R the actual provocative trigger was a relatively minor incident when viewed against the full horror of the background of the case. Again, in Morabito, the jury returned a verdict of manslaughter in circumstances in which “there was no immediate trigger from the deceased to cause panic or sudden emotional reaction”⁷⁴ and where the “risk of imminent return of the deceased [from gaol] was a final straw which led to loss of self-control”.⁷⁵ With such broad interpretations of what may constitute the final “trigger”, it seems illogical that the Courts should have to search for such incidents in order to fulfil the technicalities of the defence,⁷⁶ particularly when the legal necessity for doing so is not clear. The better approach may be to drop the need for a specific triggering incident and subsume the issue as a factor within the requirement that the accused actually lost self-control because of the provocation offered.

The elements of the defence - the act of retaliation

Loss of self-control - the subjective test

3.38 The core of the defence of provocation is that the defendant actually lost control and killed while in this state. While some factors such as proportionality and suddenness may no longer be legal requirements, they may well go towards showing the defendant’s actual state of mind. Indeed O’Connor and Fairall point out that, with respect to the subjective element, all circumstances, including ethnicity, intoxication, temperament, unusual physical characteristics, age and so on will be relevant.⁷⁷

3.39 Loss of self-control can be proved expressly by the testimony of the defendant, or can be inferred from his or her actions at the time.⁷⁸

Loss of self-control - causation

3.40 It is clear that the provocative conduct must actually cause the loss of self-control. Thus, for example, if the defendant was intoxicated:

it is a question of fact for the jury whether the loss of self-control was caused by the deceased’s words or conduct or solely by the inflammatory effects of drink or drugs.⁷⁹

The requirement of suddenness

3.41 Before the 1982 amendments, the common law required that the retaliatory act be “sudden” or done “in the heat of passion”.⁸⁰ Cases such as Parker⁸¹ had interpreted this requirement broadly, allowing the time span between the provocative and retaliatory acts to be conceived in terms of a mounting of tension. However the requirement still presented a barrier in cases in which a long history of violence and abuse in a domestic context was not seen by the law as sufficient provocation if the last “provocative act” was not sufficiently temporally proximate to the killing.

3.42 The new s 23(3)(b) expressly removed the requirement of “suddenness”.⁸² In this respect the legislation marked an important advance for victims of domestic violence. Prior to the amendment the law had essentially refused to take cognisance of the true extent of the “cumulative provocation” these women (as is usually the case in the domestic context) suffered. Despite this change, it is still the case that some “trigger” is required.⁸³

The role of intention

3.43 Section 23(3)(c) of the Crimes Act makes it clear that an intent to murder arising out of the provocative act will not negative the defence and this is also the case in Australia at common law.⁸⁴ It is only a premeditated intention to kill or inflict grievous bodily harm that will amount to murder.⁸⁵ It is, in fact, the very essence of the defence of provocation that the defendant did have the relevant intention but that this intention was formed spontaneously and by reason of the provocation.

Must the loss of control stem from anger?

3.44 Although anger is primarily associated with the defence of provocation and fear with self-defence, the High Court in Van Den Hoek found that this is not necessarily the case. The defence of provocation can be made out where loss of control stems from fear, anger or a combination of both.⁸⁶ This would appear to be sound in both psychology and policy. In particular, victims of domestic violence who kill their abusers and who may be motivated by fear and despair as well as anger may be more able to avail themselves of the defence.⁸⁷

Loss of self-control - the objective test

3.45 No area of the law of provocation has been as contentious as the so-called “objective test”. When the law in New South Wales was substantially reformed in 1982 the objective test remained. This move has been described by one commentator as a “trade off” for the other reforms - a guarantee that the liberalisation of the provocation defence in other respects would not open the gates to spurious pleas.⁸⁸ Thus the 1982 amendments to the Crimes Act leave the common law objective test intact.

3.46 Essentially, the test requires that the provocation must actually have deprived the defendant of his or her power of self-control and that it also must have been sufficient to have deprived an ordinary person of this power, such that the ordinary person could have moved to kill.

3.47 There has been a great deal of judicial and academic comment on the need for and the nature of the objective test, in particular the extent to which it may be “subjectivised” by incorporating characteristics of the particular defendant. The harshness of the House of Lords decision in Bedder,⁸⁹ which refused to allow any characteristics of the defendant to be attributed to the ordinary person, was mitigated by a number of later decisions.

3.48 The ordinary person began to look more and more like the person actually on trial: he or she could be of an ethnic background, disabled, Aboriginal, impotent, a church-goer, divorced, pregnant, imprisoned, an alcoholic, deaf, a parent, a dwarf, or young.⁹⁰ These characteristics were, for the most part, only relevant to an understanding of how the alleged provocative conduct would have affected someone like the accused - that is, whether the conduct had a certain “sting” in the circumstances. For example, the use of certain derogatory terms may be particularly inflammatory when directed at some members of the community but of less moment in respect of others.⁹¹ On the other hand, these factors were not (with the exception of age and sex) relevant to the degree of self-control to which the person on trial could be expected to be held.⁹²

3.49 In Stingel v The Queen⁹³ the High Court confirmed this two-pronged test. In the first place, in relation to the gravity of the provocation, the Court stressed that:

the content and extent of the provocative conduct must be assessed from the viewpoint of the particular accused ... in that regard, none of the attributes or characteristics of a particular accused will be necessarily irrelevant to an assessment of the content and extent of the provocation involved in the relevant conduct. For example, any one or more of the accused’s age, sex, race, physical features, personal attributes, personal relationships and past history may be relevant to an objective assessment of the gravity of a particular wrongful act or insult.⁹⁴

3.50 However, in relation to the power of self-control of the hypothetical “ordinary person”,⁹⁵ the Court was of the opinion that:

subject to a qualification in relation to age ... the extent of the power of self-control of that hypothetical ordinary person is unaffected by the personal characteristics or attributes of the particular accused.⁹⁶

3.51 In their Honours’ opinion, the function of the test is to “provide an objective and uniform standard of the minimum powers of self-control which must be observed”.⁹⁷ The “governing principles” of equality and individual responsibility require that all people are held to the same standard.⁹⁸ The Court considered it necessary for the trial judge to instruct the jury on the relevance of characteristics when applying the test.

3.52 It should be noted that, while Stingel itself was concerned with s 160 of the Tasmanian Criminal Code, the objective test was said to be the same as at common law. The New South Wales Court of Appeal has applied the Stingel test in Tumanako⁹⁹ and in Baraghith.¹⁰⁰ By way of contrast, the Court of Criminal Appeal of the Northern Territory in Mungatopi cast the objective test in terms of the “ordinary Aboriginal person” and endorsed an earlier Northern Territory case¹⁰¹ giving this person “the powers of self-control as everyone is entitled to expect an ordinary person of that culture and environment to have”.¹⁰²

3.53 Stingel at least clarifies the state of the objective test. In particular it seems that the limitation suggested in earlier cases¹⁰³ whereby only permanent characteristics could be attributed to the ordinary person are no longer relevant. Stingel refers to a very wide range of characteristics as relevant to the gravity of the provocation. On the other hand, both exceptional pugnacity and intoxication remain irrelevant insofar as they go to the issue of self-control.¹⁰⁴ Thus a taunt “you exceptionally pugnacious person” or “you drunkard” may be taken into account in assessing how grave the provocation is but pugnacity or intoxication will not be relevant in assessing the level of self-control of the defendant.

Critique of the objective test

3.54 The objective test as most recently propounded in Stingel has been subjected to a great deal of criticism in the past two decades.

3.55 The first issue is the complexity of the Stingel test and other formulations which require a jury to both regard and disregard characteristics. In fact it was acknowledged in Camplin itself that the distinction may be too subtle for the jury to grasp.¹⁰⁵ In Voukelatos Murphy J reiterated this point, suggesting that the test is so complex that the jury would:

if not consciously, at least subconsciously dismiss such refinements and decide as they thought to be fair and just in the circumstances.¹⁰⁶

3.56 Secondly, the test has been criticised as being completely unrealistic. Yeo argues cogently that no rational distinction can be drawn between those factors going to gravity and those factors relevant to self-control. This is because, in behavioural terms, it is highly artificial to dissect the personality of the defendant into how he or she would view the provocation and how he or she would react emotionally to it.¹⁰⁷ For instance (to adapt an example of Yeo’s¹⁰⁸), if a person taunts another by reference to some visible scarring or other physical disability, the fact that the person is scarred is relevant to show that the taunt was gravely provocative to him or her. However the fact that defendant may be highly sensitive and perhaps have a lower level of self-control by reason of having grown up dealing with the disability and the insensitivity of others cannot be considered. However, despite this artificiality, the distinction appears to be a necessary one if the objective test is to be retained. If the individual’s capacity for self-control can be taken into account this effectively demolishes the test - the investigation becomes completely subjective.¹⁰⁹ Because the gravity/self-control distinction is flawed and because it is central to maintaining the objective test, it has been argued that this is a good reason to abandon the objective test altogether.

3.57 The objective test in general has also been criticised as behaviourally inapt. Brett argues that scientific studies have shown that:

the degree of response to a stress situation varies considerably from one individual to another ... it would be perverse of the law to ignore these teachings of science ... but if we pay attention to them, it at once becomes clear that the reasonable man of provocation law is a figment of the imagination.¹¹⁰

3.58 Related to this is the fact that the objective test contravenes a basic principle of our criminal law that culpability is to be assessed by reference to the subjective mental state of the defendant. Measuring the behaviour of the defendant relative to some hypothetical reasonable person is irrelevant to whether he or she actually lost control.

3.59 The fourth factor that has been commented on is the inappropriateness of a test that presupposes a homogenous society acting in accordance with well recognised, standard behavioural norms. A rule which tests people’s reactions according to values which are culturally alien to them may work grave injustices. Murphy J in Moffa thought that the test was “not suitable even for a superficially homogenous society, and the more heterogeneous our society becomes, the more inappropriate the test is.”¹¹¹ His Honour thought an entirely subjective test would be more appropriate. Yeo, while criticising the Stingel distinction, makes a strong case for the inclusion of ethnicity as a factor going to self-control should the distinction be retained.¹¹² Thus he contends that:

a migrant ... would, in most cases, have already been deeply conditioned by the customs and traditions of his native land. These customs and traditions would have moulded his emotions and personality to such a degree that altering them in any significant manner would be extremely difficult. If the law of provocation recognises the emotional instability of youth, it is hard to understand why it should not likewise recognise ethnic derivation when determining an accused’s power of self-control.¹¹³

3.60 According to Yeo, the demands of equality in a heterogeneous multicultural society demand ethnicity be taken into account, rather than ignored. True equality is achievable only when “each group recognise the others’ right to be different and when the majority does not penalise the minority groups for being different”.¹¹⁴ In this respect it is relevant to note that in a number of other jurisdictions such as Papua New Guinea, Western Samoa, the Northern Territory and New Zealand, the objective test has been interpreted so as to allow ethnicity to be taken into account in respect of powers of self-control.¹¹⁵

3.61 In this context it is important to be careful that claims for “equality” do not mean only “equality for diverse categories of men”. It is crucial to ensure that the recognition of diverse cultural practices do not operate to reinforce the assertion of male power over women.¹¹⁶

3.62 On a more theoretical level, Yeo¹¹⁷ argues that the underlying rationale for the defence of provocation (concession to human frailty, contributory fault by the victim) is at odds with the rationale for the objective test (the need of society to maintain objective standards of behaviour). This suggests that the test can be abolished.

3.63 The “classic” argument for the objective test is seriously flawed. That argument contends that the test is necessary because otherwise the good-tempered killer would be convicted while the bad-tempered killer would have the benefit of the defence. This argument needs only to be stated to be rejected. If the good-tempered person does not lose self-control then he or she will not kill and there will be no occasion for a murder trial at all. If she or he does kill but still does not lose self-control then provocation is not applicable because the killing was done in cold blood. Finally if she or he kills and does lose self-control then there is no reason that provocation cannot be raised, the defendant will pass both the subjective (although it may be a little more difficult to prove) and the objective tests.

3.64 The final problem with the objective test, particularly where issues of ethnicity arise, is evidentiary. It will be discussed in the section on evidence below.

3.65 Many commentators argue that for these reasons the objective test should be abolished. It has also been pointed out that another strong argument for the adoption of a purely subjective test is that provocation is only a partial defence - the defendant will still be found guilty of manslaughter.¹¹⁸ However it is worth reiterating what is often said to be the fundamental rationale for the test - that it functions to set a minimum standard of behaviour to which all members of society can expect to be held.

The requirement of proportionality

3.66 Section 23(3)(a) now provides that “there is no rule of law” that provocation is negatived if there was not a reasonable proportion between the act causing death and the conduct of the victim. Despite earlier authority to the contrary,¹¹⁹ this is also now the case at common law in Australia where proportionality is no longer a separate requirement but is only one factor to be taken into account in deciding whether the objective test has been satisfied.¹²⁰

3.67 In Stingel the High Court approved the proposition that:

the question is not whether there was some loss of self control, but whether the loss of self control was of such extent and degree as to provide an explanation for or to constitute, in some measure, an excuse for the acts causing death.¹²¹

Two things are evident from this. First, the conduct must have been “capable” of provoking the response.¹²² It is, therefore, not necessary to find that the provocation “would” have caused the response, only that it was “capable” of so doing. Secondly, the conduct must have been capable of provoking an ordinary person not simply to some form of retaliation but to retaliation to the degree, method and continuance of violence that actually caused the death. In effect this is a recognition that the law still requires some degree of proportionality between the provocative act and the response. This has been criticised as counter to human reality by applying a measure of reasonableness to actions carried out when the defendant had already lost his or her self-control.¹²³

Onus of proof and the role of the judge and jury

3.68 Under s 23(4), the onus of proof rests on the prosecution to prove beyond a reasonable doubt that the act causing death was not done under provocation.

3.69 At common law the issue of provocation must go to the jury if the defendant has discharged the evidential onus and provided sufficient evidence to justify the jury considering the matter. If any of the essential elements of provocation are not present then the jury will not be invited to consider the defence.¹²⁴ There is no precise formula to determine how much evidence is needed before the matter can go to the jury. One formulation is that provocation can be considered by the jury “if there is evidence which, if believed, might reasonably have led the jury to return a verdict of manslaughter on the grounds of provocation”.¹²⁵ Another is that “the view might fairly be taken” that the defendant was provoked.¹²⁶

3.70 It is, however, clear that the trial judge must direct the jury on provocation regardless of whether the point was raised by the defence and regardless of whether the defence wishes the matter to be raised.¹²⁷ In some cases the defence may be unwilling to raise provocation because it may run counter to its claims for self-defence.¹²⁸

Provocation and offences other than murder

3.71 Unlike the position under the Australian and Papua New Guinea Codes,¹²⁹ at common law provocation is only available as a defence to murder.¹³⁰ However there is some doubt as to its applicability on charges of attempted murder and with respect to serious assaults.

Attempted murder

3.72 It is unclear whether provocation can be raised as a defence to a charge of attempted murder: there is English and Victorian¹³¹ authority to say it cannot and New Zealand¹³² authority to say it can. In the South Australian Full Court case of Duvivier, Mitchell J thought it could but Zelling J, on the basis of the doctrine of legal impossibility, thought it could not.¹³³ If provocation can be raised and functions to reduce the charge to attempted manslaughter, there is concern that the archaic rule that a conviction for a misdemeanour (attempted manslaughter) cannot be returned on an indictment for a felony (attempted murder) would pose difficulties for the prosecution.

Serious assaults

3.73 Provocation at common law does not extend to assault, even serious assaults such as wounding with intent to inflict grievous bodily harm. However the elements of some assaults include the intention to murder. There is some authority for¹³⁴ permitting provocation to be pleaded in relation to such assaults and some against.¹³⁵

3.74 Provocation is a special defence developed by the common law in relation to murder.¹³⁶ While logic and symmetry may demand the extension of the defence to attempted murder, the question is essentially one of policy and the solution is unlikely to be found in technical arguments.

Evidence

3.75 The law of provocation and, in particular, the objective test present a number of evidentiary problems. While the introduction of subjective characteristics into the objective test is to be welcomed, the defence is faced with the impermissibility of adducing evidence of why conduct would be particularly provocative to the defendant. Australian courts are bound by common law evidentiary rules which prohibit the calling of evidence on matters of common knowledge and on questions going to the ultimate issue which the jury is required to find.¹³⁷ This problem is particularly acute in the following specific areas.

Ethnicity and Aboriginality

3.76 The problem is evident in relation to the inability to adduce evidence of the cultural practices of a particular ethnic group or of Aboriginal people to understand how an “ordinary person” of this background would act or re-act in the circumstances. Thus in Dincer, when the jury was faced with the question of how to assess the gravity of the provocation to a conservative Turkish Muslim who had believed his unmarried daughter was involved with a young man, the only help Lush J could offer to the jury was:

there is no answer to that question ... The law does not allow the calling of evidence to assist the judgment of the jury on a question like that. It is your problem.¹³⁸

3.77 This state of affairs essentially asks the jury to resort to stereotype, and prompted Murphy J in Voukelatos to express the view that:

many, if not most, jurors would say and, perhaps, with more than a little justification, that the law is an ass.¹³⁹

3.78 This is particularly problematic with respect to Aboriginal defendants, usually faced with an all white jury with no knowledge of how seriously an Aboriginal person, given his or her customs, beliefs and background, may view a particular type of conduct. Eames notes that the courts have tried to get around this problem by using a number of devices which fall short of actually calling evidence.¹⁴⁰ For example in Jabarula the examination and cross examination of Aboriginal people given during the course of the trial, although not directly on point, was said to be able to throw some light on the question for the jury.¹⁴¹ If evidence of this nature does come to be accepted by the courts the issue of who may testify must be carefully considered. Will it be necessary to call anthropologists or sociologists? Will any community member do?

Battered Woman Syndrome

3.79 The second area in which evidentiary problems are found is where the defendant has killed following a long period of domestic violence and abuse. With respect to both the objective and subjective tests it is clear that without adequate information a jury may well have recourse to popular but false notions of domestic violence. Thus, to quote the rhetorical questions of a hypothetical jury posed by Wilson J in a recent decision of the Canadian Supreme Court:

Why would a woman put up with this kind of treatment: Why should she continue to live with such a man? How could she love a partner who beats her to the point of requiring hospitalisation? We would expect the woman to pack her bags and go. Where is her self respect? Why does she not cut loose and make a new life for herself?¹⁴²

3.80 These stereotypical and false assumptions are of great concern to women.¹⁴³ The so-called “Battered Woman Syndrome” (BWS) is an attempt to alleviate these evidentiary difficulties.

3.81 Crucial to an understanding of these issues is an appreciation of just how widespread domestic violence is and how frequently the results are fatal. A 1986 study of homicide in New South Wales¹⁴⁴ revealed that 42.5% of homicides were perpetrated against family members and nearly one quarter of homicides were perpetrated by the spouse of the victim. Of those offenders who killed their spouses, nearly three quarters were men. Women are more at risk of death at the hands of their spouse, de-facto or former partner than from any other person, indeed 47% of female homicide victims were killed by their spouse. What is important is that there was a recorded history of marital violence in 48%¹⁴⁵ of these cases, cases in which the State proved unable to protect women from abusive relationships of which it was fully aware. It is also particularly sobering to note that in almost half the cases in which women were killed, they were in the process of separation from their partner or had already left the relationship.

3.82 The deficiencies of a plea of self-defence in this context are well documented and it is generally considered that changes to the law in this area are crucial in providing effective defences to battered women who kill.¹⁴⁶ For a number of reasons, not the least because it provides a complete defence, an adequate defence of self-defence would be more advantageous to women than a defence of provocation.¹⁴⁷ Nevertheless provocation can be useful, particularly as it has been interpreted in the last decade and particularly where the jury is provided with adequate information about the woman’s situation.

3.83 The Battered Woman Syndrome is not a defence as such, but is introduced to support or establish other defences, such as duress, self-defence or provocation. BWS has been considered by Australian courts on three occasions, in cases in which the defences of duress and self-defence were at issue.¹⁴⁸ The syndrome is primarily associated with the work of Lenore Walker, an American psychologist, and has been used in courts in the United States for the past decade.¹⁴⁹ Essentially the theory is that a woman subjected to long term and repeated domestic abuse becomes immobilised, passive and unable to escape her situation. This is a psychological response to the material conditions of her life. While the syndrome has been the subject of some criticism, both in terms of Walker’s psychological research and in terms of its utility to help women¹⁵⁰ and while it is still in its infancy in Australia, it does have direct relevance to the law of provocation. Although all of the Australian cases so far have dealt with self-defence and duress, both King CJ and Bollen J in Runjanjic and Kontinnen thought that there was no difference in principle between admitting evidence of BWS in such cases and admitting it in provocation cases.¹⁵¹

3.84 Evidence of this nature is relevant in assisting the jury in two respects: firstly in assessing the defendant’s subjective response and secondly in measuring her actions against the objective test. With respect to the former, if the experiences of the defendant are so far beyond what the jury is able to comprehend, her evidence as to her subjective state of mind may not be regarded as credible by the jury.¹⁵² With respect to the objective test it will be difficult, in the absence of evidence, for the jury to ascertain whether the defendant acted as an ordinary battered woman (whatever that may be) would in the circumstances.

Diminished responsibility and provocation

3.85 Provocation and diminished responsibility are sometimes pleaded together although it is not clear how common this is in New South Wales. Case studies conducted in England have shown that juries often return manslaughter verdicts simultaneously based on both defences. Such a course is clearly advantageous to the defence in a provocation case because this will enable psychiatric evidence to be called. It is impermissible to adduce evidence of the defendant’s propensity to lose self-control for the purposes of provocation but it may be relevant to aspects of diminished responsibility. Once the evidence has been admitted:

it may become virtually impossible to disentangle the issues of loss of self-control, abnormality of mind and substantial impairment of mental responsibility ... once expert evidence of this nature is introduced, it is submitted, the jury cannot help be influenced by it in their assessment of both diminished responsibility and provocation.¹⁵³

3.86 Conversely, pleading provocation and diminished responsibility together also aids the diminished responsibility defence. Indeed the “two defences reinforce each other”.¹⁵⁴ Thus the defence of provocation operates to show what the victim did and diminished responsibility can present evidence of what the defendant felt.

THE DEFENCE OF PROVOCATION IN PRACTICE

The prosecution process

3.87 In Kolalich, the High Court stated that provocation was an issue which could be considered by the prosecution and that:

they may decide that, on that account, manslaughter should be charged rather than murder ... they may also decide that, on that account, a plea of guilty to manslaughter should be accepted in satisfaction of an indictment for murder.¹⁵⁵

3.88 However the Court also found that these powers were exceptional and that in most cases the issue is:

best left to the determination of a jury entrusted with deciding whether, absent such a defence of provocation, the accused is guilty of murder.¹⁵⁶

3.89 Thus it is possible to be indicted directly for manslaughter on the grounds of provocation or to plead guilty to it. The most recent indications of how this works in practice come from the Victorian Homicide Prosecutions Study, which considered the period 1981-1987.¹⁵⁷ That study found that provocation was an issue in 23.5% of homicide cases (75 cases). Of these, 15 cases were ultimately presented for manslaughter.¹⁵⁸ In only one case was provocation the only issue: self-defence and unlawful and dangerous act manslaughter were also relevant in all other cases. Only four of these cases arose in a domestic context, the others were all “argument” cases. Ultimately 11 of these defendants were convicted for manslaughter while 4 were acquitted.

3.90 In the context of “sexual intimate homicide”, Easteal has compared murder cases with those in which the defendant was permitted to plead guilty to manslaughter. She found that:

No variable seems to be the obvious difference. Premeditation? No, some of the manslaughters were acknowledged as premeditated. Means of killing? Again, no; some murders were less violent than the manslaughters and some of the latter showed less loss of self-control than some of the murders.¹⁵⁹

3.91 Thus the difference between a murder and a manslaughter trial seems to be ultimately a matter of discretion often reliant on factors such as the attitude of the individual prosecutor and the degree of involvement of the victim’s family.¹⁶⁰ It does, however, appear to be the case that female defendants are more frequently offered pleas to manslaughter in cases in which provocation may be an issue than are men.

Provocation at trial

3.92 Provocation was raised in 60 murder trials in the Victorian study. Sixty percent of defendants raising the issue were convicted of manslaughter, with only 22% convicted of murder. However, as the Victorian Law Reform Commission point out, this cannot necessarily be seen as a “success rate” for provocation because of the presence of other defences in the same trial.¹⁶¹ The ostensibly high success rate for provocation also may be explained on the basis that juries often favour compromise verdicts. Thus, if the defence runs both provocation and self-defence and the jury’s options are acquittal, murder or manslaughter, they will often choose to steer the middle course.¹⁶²

3.93 The Victorian study found that more male than female defendants use the provocation defence: in absolute terms and as a proportion of all accused charged with murder, men use the provocation defence much more frequently than women. However, where female defendants do raise the defence it is more likely to be successful.¹⁶³ No female defendant who argued provocation was convicted of murder, although 25% of male defendants who raised the defence were.¹⁶⁴

3.94 In the context of domestic homicides, of the 64 cases where male defendants were presented for murder or manslaughter, provocation was an issue in 30 cases. Of these, 23% were convicted of murder and 67% of manslaughter. It was also found that male defendants are less likely to receive a manslaughter conviction where their victim is female.

3.95 Provocation was raised in 8 of the 26 cases of female defendants presented for murder or manslaughter. There were no murder convictions and four were convicted of manslaughter.

3.96 The Victorian Law Reform Commission suggests that these figures may indicate that the lack of murder convictions for female defendants reflect the fact that other defences are also argued or that women tend not to be prosecuted for murder if provocation is a viable option.

3.97 The Victorian Law Reform Commission found that its data:

does not support the conclusion that the provocation defence generally operates in a gender biased way. It refutes the claim made by some commentators that juries routinely accept provocation defences by males who have killed females.¹⁶⁵

3.98 It may be that more empirical work needs to be done on this issue but it is also important to be aware of what lies behind these figures. The general pattern that emerges from the cases is that men use the provocation defence when they kill their partners or ex-partners in a jealous rage and that women use it - as they are now, under the 1982 amendments, more able to do - where they have been the victims of long term domestic abuse. The data treats these situations as commensurate - something which itself should be examined for gender bias.¹⁶⁶

Sentencing

3.99 Where provocation was an issue and a manslaughter verdict returned, the Victorian study found that 33% of women received non-custodial sentences (compared with 10% of men) and that the most common sentence for men was 6-8 years and for women 3-5 years.¹⁶⁷ The Victorian Commission found that “assessment of the fact summaries ... indicates that heavier sentences for the males were generally appropriate”.¹⁶⁸

3.100 Easteal¹⁶⁹ found that the sentences given to battered women were all relatively lenient; 30% received non-custodial sentences and the top was an eight year minimum. It is interesting that those manslaughter convictions on the grounds of provocation and diminished responsibility (as opposed to involuntary manslaughter) received heavier sentences. Thus it seems that the intent to murder is viewed as a factor in sentencing. It also appears that the extent and nature of the domestic violence preceding the killing was not directly relevant to sentence. Thus in Easteal’s study the violence in a provocation case was “possibly the worst of the sample yet that factor did not appear to weigh in [the defendant’s] favour”.¹⁷⁰ She concludes that “there seems to be a failure in the judiciary’s understanding of the dynamics of battering and in their acceptance of domestic violence as criminal assault” and that Battered Women Syndrome evidence is important so that “jurors (and judges) are [not] left with their own preconceived notions of reasonable behaviour for a battered woman”.¹⁷¹

3.101 It is also interesting to consider Easteal’s findings concerning the sentencing of men convicted for the murder or manslaughter of their female partners. Although sentences varied widely, she found that “overall the nature of the victim did mitigate the sentence”, particularly when the woman “had been less than the cultural ideal of female virtue”.¹⁷² Thus:

Leaving one’s husband, having an affair, not taking care of the child(ren), nagging one’s husband, lack of appreciation for the husband’s work on behalf of the family were all not manifested by the ideal woman. Thus, one of the few consistencies in sentencing and/or determining whether to allow the defendant to plead down to manslaughter was the nature of the victim and her degree of compatibility with societal norms.¹⁷³

THE POSITION IN OTHER JURISDICTIONS

3.102 The position in other Australian jurisdictions and in the United Kingdom is not substantially different from the prevailing position in New South Wales. To some extent the changes introduced in this State in 1982 put on a statutory footing what the courts in this and other jurisdictions already were beginning to do. The common law position has been briefly referred to above in the description of the law in the New South Wales and the law in the common law and Code jurisdictions will be considered below only insofar as it differs substantially from the law in New South Wales. The New Zealand position will be considered in slightly more detail.

Other Australian jurisdictions - the Code States

3.103 In Queensland, Western Australia, Tasmania and the Northern Territory the respective Codes govern the law of provocation.

3.104 Section 304 of the Queensland Criminal Code provides:

Where a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation, and before there is time for his passion to cool, he is guilty of manslaughter only.

3.105 Section 281 of the Western Australian Code is in substantially the same terms. Under the Queensland Code the meaning of provocation falls to be determined by reference to the common law¹⁷⁴ while in Western Australia, provocation is interpreted by reference to the definition in s 245 of that Code.¹⁷⁵ The Queensland Criminal Code Review Committee has recommended that the Code definition of provocation be applicable.¹⁷⁶

3.106 Section 160 of the Tasmanian Criminal Code provides:

(1) Culpable homicide which would otherwise be murder may be reduced to manslaughter if the person who causes death does so in the heat of passion caused by sudden provocation.

(2) Any wrongful act or insult of such nature as to be sufficient to deprive an ordinary person of the power of self-control, and which, in fact, deprives the offender of the power of self control, is provocation, if the offender acts upon it on the sudden and before there has been time for his passion to cool.

3.107 The Code also expressly provides for the situations of unlawful arrest (s 160(5)), provocation by lawful acts and self-induced provocation (s 160(4)). The ordinary person test, formulated by the High Court in Stingel, is essentially the same as at common law and is discussed above. Proportionality is merely a factor to be taken into account in deciding whether the retaliation flowed from the conduct of the deceased.¹⁷⁷ The term “any wrongful act or insult” is interpreted broadly and not restricted by reference to old common law categories.¹⁷⁸ Although s 160 is silent on the matter, the onus of proof lies on the prosecution and the trial judge must leave the matter to the jury (even if the defence is not argued) if there is material capable in law of constituting provocation.¹⁷⁹

3.108 In the Northern Territory, s 34(2) of the Criminal Code provides:

When a person who has unlawfully killed another under circumstances that, but for this subsection, would have constituted murder, did the act that caused death because of provocation and to the person that gave him that provocation, he is excused from criminal responsibility for murder and is guilty of manslaughter only provided

(a) he had not incited the provocation;

(b) he was deprived by the provocation of the power of self control;

(c) he acted on the sudden and before there was time for his passion to cool;

(d) an ordinary person similarly circumstanced would have acted in the same or a similar way.

3.109 It should also be noted that under s 34(1) provocation is available to exclude criminal responsibility in respect of offences other than murder. As noted above, the Court of Criminal Appeal of the Northern Territory in Mungatopi has cast the objective test in terms of the “ordinary Aboriginal person” and endorsed an earlier Northern Territory case¹⁸⁰ giving this person “the powers of self control as everyone is entitled to expect an ordinary person of that culture and environment to have”.¹⁸¹ This differs from the test as propounded in Stingel.

3.110 It is also important to note that, in the Code jurisdictions, provocation is a complete defence to offences of which assault is an essential element.¹⁸² In PLAR No 1 of 1980,¹⁸³ the Supreme Court of Papua New Guinea held that provocation could be a complete defence to a charge of involuntary manslaughter based on an unlawful and dangerous act.

Other Australian jurisdictions - the common law States

3.111 Section 13 of Crimes Act 1900 (NSW) in force in the Australian Capital Territory is substantially the same as s 23. In Victoria and South Australia the defence is entirely one of the common law.

England

3.112 In England the common law still prevails but is modified by the Homicide Act 1957 s 3. Perhaps the major difference between New South Wales and English provocation law is the recent reiteration by the English Court of Appeal of the requirement of a “sudden and temporary loss of self-control”.¹⁸⁴ The difference has been explained in the following way:

The English law views the element of “suddenness” restrictively so as to recognise only the provoking event occurring immediately before the killing. Furthermore, the element is construed as disallowing an effluxion of time between the provoking event and the killing. In contrast, the Australian law has given an liberal interpretation to “suddenness” by recognising the notion of cumulative provocation¹⁸⁵ and by permitting a time interval between the final provoking event¹⁸⁶ and the killing.¹⁸⁷

3.113 Another difference lies in the precise formulation of the objective test. Stingel modifies Camplin with respect to sex as a characteristic relevant to self-control. It is also clear from that case that the test is to be formulated in terms of the “ordinary” and not the “reasonable” person.

Ireland

3.114 In Ireland, the Irish Court of Appeal abandoned the objective test in The People v MacEion,¹⁸⁸ adopting the reasoning of Murphy J (in dissent) in Moffa.

New Zealand

3.115 Following the decision in Bedder, the New Zealand Crimes Act (1961) was amended to introduce s 169(2):

Anything done or said may be provocation if -

(a) in the circumstances of the case it was sufficient to deprive a person having the power of self control of an ordinary person but otherwise having the characteristics of the offender, of the power of self control; and

(b) it did in fact deprive the offender of the power of self control and thereby induced him to commit the act of homicide.

3.117 Apart from s 169(2), the law of provocation in New Zealand is governed by the common law. While there are a number of differences - for example the New Zealand courts do not seem to have found the question of indirect provocation a problem - the New Zealand position is quite similar to that prevailing in New South Wales.¹⁹²

3.118 It is ironic that, when the House of Lords in Camplin essentially adopted the “hybrid” ordinary person test, Lord Simon remarked that New Zealand juries had not experienced difficulties working with it.¹⁹³ In fact, in 1976 the Criminal Law Reform Committee had recommended the abolition of the defence of provocation, in large part because of the complexities of the test.¹⁹⁴ The Committee recommended that there be a single offence of unlawful homicide to cover what is now murder and manslaughter by reason of provocation and that provocation be only relevant with respect to sentence.¹⁹⁵

3.119 Following this report, cl 128 of the Draft Crimes Bill 1989 provided that:

The fact that a person kills any other person under provocation shall not be a defence to a charge of culpable homicide but may be taken into account on the question of penalty.

The Bill has been subjected to a great deal of criticism.¹⁹⁶ It was argued that the reforms would lead to the diminution of the role of the jury and to the role of defence counsel. It was said to leave too much to the sentencing judge. The most trenchant criticism, however, was made with respect to the dismantling of the traditional terminology and symbolism of the law of murder. It was said that:

Without excellent reason, legislatures molest such symbols to the peril of the law’s meaning and people’s understanding of it ...

If [the term murder] deters a few killings and if it helps prop up the flaking masonry of public confidence in the criminal law then no harm and some small good will result from keeping it.¹⁹⁷

3.120 Eventually the Bill was sent for further consultation and in 1991 the Crimes Consultative Committee published its report.¹⁹⁸ It recommended that the traditional murder terminology be retained instead of the phrase “culpable homicide” but thought that “abolition” of provocation as a partial defence was the correct approach.

Canada

3.121 Section 232 of the Criminal Code is essentially the same as s 160 of the Tasmanian Code.¹⁹⁹ The interpretation of that section²⁰⁰ is substantially similar to the law in Australia, although there are a number of interesting minor differences. For one thing, the decision in Hill²⁰¹ on the objective test does not draw the gravity/control distinction quite as clearly as the decision in Stingel. Again, Canadian law does not require the provocation to be sufficient to make the ordinary person act as the accused did - it is sufficient that the loss of self-control be caused by the provocation.²⁰² Another point worth noting is the absence of a requirement of proportionality.²⁰³

The United States

3.122 The position in the United States varies quite considerably between the States. About eleven States have enacted provisions based upon the Model Penal Code of the American Law Institute. Under s 210.3 of that Code, any intentional killing is manslaughter if:

committed under the influence of extreme mental or emotional disturbance for which there is a reasonable explanation or excuse [such reason to be] determined from the viewpoint of a person in the actor’s situation under the circumstances as he believes them to be.

3.123 This broadens the common law in two main ways. First, it does not limit what may be seen as provocation. Secondly, it introduces an almost subjective test. While still requiring the jury to consider whether there was a “reasonable” explanation for the mental or emotional disturbance of the defendant, it requires this consideration to be made by reference to the viewpoint of the defendant.

India

3.124 The defence of provocation is found in Exception 1 to s 300 of the Indian Penal Code:²⁰⁴

Culpable homicide is not murder if the offender while deprived of the power of self-control by grave and sudden provocation causes the death of the person who gave the provocation or caused the death of another person by mistake or accident.

3.125 The interpretation given to this provision by the Indian courts is interesting because it goes a lot further in subjectivising the ordinary person test than courts in Australia and other common law jurisdictions. The courts have held that characteristics, particularly ethnicity, may be taken into account both in respect of the gravity of the provocation and in assessing the powers of self-control of the defendant. This does not collapse into pure subjectivity because the level of self-control required is that of the ordinary member of a particular class of people. Further, the Indian courts admit evidence of experts such as anthropologists in order to aid the jury’s understanding of the cultural factors involved. By contrast with the Australian position in Stingel, Indian law only requires the ordinary person to have lost his or her self-control simpliciter. It is not necessary that he or she be provoked to retaliation to the degree, method and continuance of violence that actually caused the death.

European jurisdictions

3.126 The House of Lords Select Committee on Murder and Life Imprisonment conducted a survey of the Member States of the Council of Europe with respect to their law of provocation.²⁰⁵ It is difficult to appreciate the actual significance of the presence or absence of an analogous defence without considering the entire law of homicide in the relevant jurisdiction and, in particular, the murder/manslaughter distinction and the penalty for murder. However it is noted that the following jurisdictions provide for a reduction of murder to some lesser offence on the grounds of provocation: Cyprus, Luxembourg, Malta and Switzerland. Denmark, Turkey and Italy provide a similar defence in relation to all offences or consider provocation in relation to punishment.

OPTIONS FOR REFORM

Option One: retain the defence without amendment

Implementation

The current law of provocation could be retained in its existing state.

Other recommendations to this effect

The Queensland Criminal Code Review Committee has recommended the retention of the provocation defence in the Queensland Criminal Code²⁰⁶ but this is a different provision to s 23. There is no standing recommendation to reform the current provocation defence in this State. As noted above, the defence was recently reformed by Parliament and the Commission’s current reference is the first comprehensive review of the 1982 amendments.

Option Two: abolish defence.

Implementation

For example it could be provided that:




The fact that a person kills any other person under provocation shall not be a defence to a charge of murder but may be taken into account on the question of penalty.²⁰⁷

It is also necessary to consider the option of abolishing the law of provocation in the context of the removal of the murder/manslaughter distinction. This option is fully canvassed in Chapter 2.

Other recommendations to this effect

The Gibbs Report considered that provocation should be irrelevant in determining guilt and should only be taken into account in respect of sentence.²⁰⁸ As noted above this is also the course proposed in New Zealand. The Canadian Law Reform Commission’s proposed new criminal code does not provide for a defence of provocation at all.²⁰⁹

Option Three: reformulate defence

Implementation and other similar recommendations

The major issue to be considered here is the need to reform the objective test. The criticisms of that test have been discussed above at paras 3.54 - 3.65. There are also a number of other issues to be considered. Similar recommendations are referred to in footnotes to the text of this section.

Some or all of the following suggestions for reformulation of the defence could be adopted:

Reform the objective test

This could be done by either:

(a) Abolishing the objective test altogether in favour of the purely subjective test of whether the defendant in fact lost self-control.²¹⁰

OR

(b) Introducing what is essentially a subjective test restrained by an element of community standards.

For example, provocation could be a defence if, on the facts as they appeared to the defendant, it can reasonably be regarded as a sufficient ground for the loss of self-control leading the defendant to react against the victim with murderous intent.²¹¹ This avoids reference to notional “reasonable man”, instead directing the attention of the jury to what they themselves consider reasonable - which has always been the real question. The Victorian Law Reform Commission made the following suggestion for reformulation:

Where a person suffers a loss of self control as a result of provocation (whether by things done or words said and whether by the deceased or by someone else) and intentionally kills or is a party to the killing of another, he or she is not guilty of murder but guilty of manslaughter if, in all the circumstances, there is a sufficient reason to reduce the offence from murder to manslaughter.²¹²

OR

(c) Introducing a clearer statutory formulation of the objective test clarifying that factors such as ethnicity, gender and disabilities may go to establishing the level of control of the ordinary person.

Reform of other legal requirements of the defence

• Clarify whether provocation can be a defence to a charge of attempted murder²¹³ or to charges for offences involving intention to murder.
• Clarify that the defendant need not be present at the time of the provocation²¹⁴ and that the provocation need not stem from the victim.²¹⁵
• Clarify that it is unnecessary for the provocative conduct to be unlawful.



Evidentiary reforms

• If the objective test was to remain intact, evidence could be allowed to be introduced on matters relevant to it. Thus, for example, the Australian Law Reform Commission has recommended that the abolition of the common knowledge and ultimate issue rules, along with the liberalisation of the definition of expertise will facilitate the calling of evidence of the cultural practices of the defendant.²¹⁶
• Provision could be made for evidence of Battered Woman Syndrome to be called in provocation cases.

DISCUSSION OF THE OPTIONS

Should there be a provocation defence in one form or another or should it be abolished?

3.127 Before the precise form of the provocation defence is considered, it is necessary to discuss whether or not a partial defence of provocation, operating to reduce liability for murder to manslaughter is required at all. The following issues are relevant to this consideration.

3.128 Is the defence necessary in a jurisdiction with a discretionary penalty for murder? The most frequent argument for the abolition of the provocation defence is that, as a historical device to avoid the death penalty or a mandatory life sentence, it is unnecessary in a jurisdiction with a discretionary murder penalty and that factors now going to establish the defence can adequately be taken into account in respect of sentence. It is argued that to take the sentence-only approach to provocation would eliminate or shorten many trials and reduce expense. It is true that there is nothing strange about giving judges broad sentencing discretions, they already possess this for all offences - including murder - in New South Wales.

There are a number of arguments against this position.

3.129 Historical argument. The first argument contends that the historical basis for this claim is not correct. There is a long standing historical distinction between unprovoked and provoked killings and it is by no means certain that provocation was merely a device to avoid the death penalty. In 17th century England, the culpability of a person who killed under provocation was lower than for manslaughter. The defence was an attempt to recognise a higher level of culpability for such killings.

3.130 “Labelling” argument. The second argument is based on the question of “labelling”. A successful defence prevents labelling as “murderers” people who kill under circumstances of extreme provocation. It has been pointed out to the Commission that many defendants who rely on the partial defences are otherwise people of good character, people for whom the stigma of a murder conviction may be significant.²¹⁷

3.131 This last point is not unimportant. As a community we perceive a moral distinction between provoked and unprovoked or hot-blooded and cold-blooded killings. People recognise that there is a point at which they themselves could lose self-control, although this rarely may be to the extent of killing another person. Thus we can, to some extent, empathise with the accused. The law should continue to reflect this perception.

3.132 Finally in the context of “labelling”, it has been argued that in certain circumstances the jury may be reluctant to convict of “murder” and, without the defence, may acquit in sympathy contrary to the facts and the judge’s direction. The defence gives the jury the choice of an appropriate intermediate verdict.

3.133 The role of the jury. The third argument against the abolition of provocation on the ground that it is unnecessary where there is a discretionary murder penalty concerns the role of the jury. The jury has traditionally been and remains the appropriate arbiter of community values. To remove fundamental issues of culpability from the jury and to pass them on to the sentencing judge undermines its role. In addition, a jury finding of manslaughter enables the public to understand why a seemingly lenient sentence has been proposed. It therefore aids community understanding of the law of homicide.

3.134 The inadequacy of the sentencing process. Concerns also arise that, if provocation becomes relevant merely to sentence, the sentencing process essentially would not be up to the task. In the first place, the judge has no assistance from the jury as to their view of the offence and thus there is little community input into the sentencing process although the issues now involved at trial will still have to be resolved. It is noted that the sentencing process is not subject to the traditional protections afforded to the accused in a criminal trial and there is concern in passing greater power over to trial judges.

3.135 It is also noted that there is a clear sentencing difference between murder and manslaughter (that is, a different “tariff”) despite the discretionary sentence. The maximum sentence for murder is life and the maximum sentence for manslaughter is 25 years. At present average sentences for manslaughter are much lower than murder sentences.²¹⁸ It is therefore advantageous to be sentenced for manslaughter. The concern is that, if provocation were abolished and defendants became liable to a maximum life sentence, actual sentences might rise.

3.136 Lack of empirical evidence to support claims of cost saving. While it is often argued that abolishing provocation would substantially reduce the number and length of trials and thus reduce court costs, there is no empirical evidence to suggest this is the case. It is not known how frequently provocation is run in conjunction with diminished responsibility or with some other complete defence such as self-defence or automatism. If it is often run together with other defences, then time and cost savings may be minimal. Further research in this area would be useful.

3.137 Are there other problems with provocation, however formulated? A number of general arguments have been proposed to suggest that provocation should be abolished.

3.138 Excessive self-defence has been abolished. First it is argued that the rationale for retention of the defence is weakened by the abolition of the partial defence of excessive self-defence by the High Court in Zecevic.²¹⁹ That defence was abolished because although a distinction in moral culpability was perceived, the majority found it impossible to draw the distinction in law. (That decision leaves provocation as the only existing common law partial defence.) In this context it is worth noting that the decision in Zecevic has been subjected to considerable criticism. In particular it has been noted that the minority in that case was capable of drawing a sensible and just legal line to reflect the perceived moral distinction.²²⁰

3.139 Provocation has no satisfactory doctrinal base. Secondly, it is said that provocation has no satisfactory doctrinal base. The “concession to human frailty” rationale cannot explain the cases, nor can the partial fault of the victim. On either rationale, but especially if provocation is seen as a “concession to human frailty”, it is argued that a concession of this nature should be irrelevant in determining guilt but could be taken into account in respect of sentence. Because such a killing is intentional, loss of self-control is not a sufficiently good reason to reduce the actual level of culpability. By way of contrast, the law generally does not accept desire (another human frailty) or even necessity (hunger) as defences to property crimes.

3.140 On the other hand it is argued that if there was no defence of provocation there would be the possibility of more acquittals based on “defences” going to lack of mens rea or to voluntariness. As a matter of policy it is often preferable in these cases that a manslaughter conviction result. It also should be noted that the absence of a coherent doctrinal framework has not usually proved to be an impediment to retention of other areas of the criminal law.

3.141 Provocation is gender biased. Despite the findings of some studies that the provocation defence is not gender biased in practice, there is also evidence that the defence operates primarily as an excuse for men who kill women. In particular it is contended that the equation of killing an ex-lover in a jealous rage (a context in which men are likely to use provocation) and killing an abuser after long term domestic violence (a context in which women are likely to use the defence) are neither comparable in terms of moral culpability nor for the purposes of evaluating whether the operation of the defence reveals gender bias.

3.142 Considerations of possible gender bias in the use of the defence of provocation by men must be carefully weighed up with the following issue. Before the 1982 amendments, it was clearly the case that the rules with respect to suddenness reflected male responses to trauma. Indeed the whole law of provocation was based on a paradigm of men as natural aggressors and operated to reinforce this paradigm. The amendments brought necessary and commendable changes to the law of provocation although some areas remain of concern in attempting to make the defence available to women who kill their abusers. But it is surely the case that, given the defence is now more applicable to the response patterns of women (particularly those who may have been involved in long-term domestic abuse), to abolish provocation now may remove a necessary and appropriate defence from such women. It may be, however, that provocation, however formulated, is not the appropriate defence for women who kill their partners after a period of domestic violence. One reason is that provocation relies on the notion that the killer lost her self-control which may not in fact be the case in these circumstances. Thus advances in the law of self-defence or a new defence specifically applicable to victims of domestic violence who kill has been suggested.²²¹

Should the provocation defence be retained in its current form?

3.143 The law of provocation was substantially reformed in New South Wales in 1982 and significant problems with the old defence were addressed. The law also has been refined through a series of judicial decisions. It is arguable that, on this basis, the defence does not require further reformulation. It is indeed the case that the 1982 amendments introduced some much-needed and far-reaching reforms into the law of provocation in New South Wales. It may be, therefore, that the law of provocation does not need any further “tinkering” - that it is a defence that works well in practice and, essentially, should be left alone.

3.144 Despite these arguments, there is no reason why the legislature should not attempt to clarify aspects of the law of provocation that were not covered by the 1982 amendments and which have not yet received definitive judicial consideration. The law of provocation remains quite complex. Reformulation will clarify issues with respect to self-induced provocation, misdirected retaliation and the availability of the defence on charges of attempted murder and other serious assaults.

3.145 Finally, the objective test requires reconsideration. Although the reform of this test was rejected in 1982, the problems associated with it have not disappeared and the issue of whether it should be retained, reformulated or abolished arises quite squarely for reconsideration a decade on. The objective test has been discussed extensively above at paras 3.45 - 3.65 and the problems with it pointed out. The Commission is particularly interested in receiving submissions on this aspect of the law of provocation.

FOOTNOTES

1. See D Brown, D Farrier, D Neal and D Weisbrot Criminal Laws (The Federation Press, 1990) at 667-669. This issue also is considered in J Dressler “Partial Justification or Partial Excuse?” (1988) 51 Modern Law Review 467; J Dressler “Rethinking Heat of Passion: A Defense in Search of a Rationale” (1982) 73 Journal of Criminal Law and Criminology 421; S Uniacke “What are Partial Excuses to Murder” and F McAuley “Provocation: Partial Justification, Not Partial Excuse” both in S Yeo (ed) Partial Excuses to Murder (The Federation Press, 1991).

2. See, for example, Curtis (1756) Fost 137; 168 ER 67 at 68.

3. For example Doughty (1986) 83 Cr App R 319 discussed in Horder “The Problem of Provocative Children” [1987] Criminal Law Review 655.

4. J Greene “A Provocation Defence for Battered Women Who Kill? (1989) 12 Adelaide Law Review 145 at 146.

5. Greene at 147-8. See discussion below at paras 3.9 - 3.13.

6. G Coss “‘God is a righteous judge, strong and patient: and God is provoked every day’: A Brief History of the Doctrine of Provocation in England” (1991) 13 Sydney Law Review 570 at 571.

7. B Brown “The Demise of Chance Medley and the Recognition of Provocation as a Defence to Murder in English Law” (1963) 7 American Journal of Legal History 310 at 312.

8. Brown at 311.

9. Third Part of the Institutes of the Laws of England at 57.

10. Brown at 310.

11. A Ashworth “The Doctrine of Provocation” (1976) 35 Cambridge Law Journal 292.

12. Third Part of the Institutes of the Laws of England at 51.

13. Brown at 313.

14. 1 Jac 1 c 8.

15. Brown at 310.

16. See Coss at 574ff for a survey of seventeenth century cases.

17. Hale (1736) vol 1 A History of the Pleas of the Crown 455.

18. (1707) Kel 119; 84 ER 1107.

19. Mawgridge.

20. Mawgridge. Ashworth points out that in the seventeenth century adultery was a crime of immorality punished by the ecclesiastical courts and was regarded as a serious offence, at 294.

21. Maddy (1671) 1 Vent 159; 86 ER 108.

22. (1762) Crown Law, Discourse II Of Homicide at 255.

23. East 1 Pleas of the Crown 234; Thomas (1837) 7 Car & P 817; 173 ER 356.

24. Ashworth at 298.

25. (1869) 11 Cox CC 336 at 339. And see Coss at 582-3 for subsequent cases.

26. (1913) 9 Cr App R 139.

27. [1914] 3 KB 1116.

28. [1942] AC 1.

29. [1946] AC 588.

30. [1954] 2 All ER 801.

31. Coss at 583.

32. Turner Russell on Crime (11th ed, 1958) at 613, quoted in Brown at 317.

33. Coss at 591.

34. [1978] AC 705.

35. (1963) 111 CLR 610.

36. See, for example, MacDonald [1953] NTJ 186 at 189; Muddarubba [1956] NTJ 317. These cases are discussed in Jabarula v Poore (1989) 42 A Crim R 479 at 486-8 (NT SC).

37. [1961] VR 663.

38. (1977) 138 CLR 601 at 606 per Barwick CJ.

39. See Parker (1963) 111 CLR 610 at 660.

40. Notably the Hill and Roberts cases in NSW (Hill v R (1981) 3 A Crim R 397), the Queen v R case in South Australia ((1981) 4 A Crim R 127) and the Krope case in Victoria. See D Weisbrot “Homicide Law Reform in New South Wales” (1982) 6 Criminal Law Journal 248 at 265; R Landsdowne “Homicide Law Reform: New South Wales” (1982) 7 Legal Service Bulletin 80.

41. See Moffa (1977) 138 CLR 601, per Mason J at 620-621; Dutton (1979) 21 SASR 356 (taunts about sexual prowess); R (1981) 4 A Crim R 127 (false words of affection against background of horrifying domestic abuse).

42. See Maddy (1671) 1 Vent 159; 86 ER 108; Mawgridge (1707) Kel 119; 84 ER 1107.

43. See, for example, Moffa (1977) 138 CLR 601; Gardner (1989) 42 A Crim R 279 (Vict CCA).

44. Mawgridge (1707) Kel 119 at 137; 84 ER 1107 at 1115.

45. King CJ and Jacobs J.

46. P Gillies Criminal Law (2nd ed, Law Book Company, 1990) at 349. In England it was held in Doughty (1986) 83 Cr App R 319 that the crying of a baby - clearly not an unlawful act - could constitute provocation.

47. B Fisse Howard’s Criminal Law (5th ed, Law Book Company, 1990) at 98.

48. D O’Connor and P Fairall Criminal Defences (2nd ed, Butterworths, 1988) at 187-8.

49. See the Summary Offences Act 1988 (NSW) s 4.

50. Scriva (No 2) [1951] VLR 298.

51. [1975] VR 449.

52. Quartly (1986) 22 A Crim R 252 at 256ff (NSW CCA). Note that the correctness of this decision was left open in Peisley (1990) 54 A Crim R 42 (NSW CCA).

53. Arden [1975] VR 449 at 452.

54. D Lanham “Provocation and the Requirement of Presence” (1989) 13 Criminal Law Journal 133 at 147.

55. O’Connor and Fairall at 185.

56. Masters [1987] 2 Qd R 272.

57. Lanham at 147.

58. NSW Parliamentary Debates (Hansard) (1982) at 2485-6.

59. Lanham at 149. See R v White [1988] 1 NZLR 122 which imposed a requirement of reasonable belief.

60. (1981) 4 A Crim R 127 at 131 (SA SC). See also the New South Wales case of Hill (1981) 3 A Crim R 397.

61. See O’Connor and Fairall at 185; Terry [1964] VR 248 at 250-1; Earley (unreported) South Australia, Court of Criminal Appeal, 24 August 1990.

62. (1986) 22 A Crim R 252 at 258-9.

63. See R O’Regan “Indirect Provocation and Misdirected Retaliation” [1968] Criminal Law Review 319 at 321.

64. O’Connor and Fairall at 184, see especially Kenney [1983] 2 VR 470 at 472.

65. Croft [1981] 1 NSWLR 126 at 149-50.

66. [1990] VR 1.

67. See Tumanako (unreported) Supreme Court, NSW, Court of Criminal Appeal, 7 October 1992; Gardner (1989) 42 A Crim R 279 (Vict CCA). But compare Peisley (1990) 54 A Crim R 42 (NSW CCA).

68. See, for example, F McAuley “Provocation: Partial Justification, Not Partial Excuse” in Yeo (ed).

69. [1973] AC 648 (on appeal from Hong Kong). Note, however, the decision of the English Court of Appeal in Johnson [1989] 2 All ER 839 leaving the issue to the jury where there is evidence that conduct may have provoked the defendant to lose his self control. See discussion in P Alldridge “Self-Induced Provocation in the Court of Appeal” (1991) 55 Journal of Criminal Law 94.

70. (1981) 3 A Crim R 397 (NSW CCA).

71. (1981) 4 A Crim R 127 (SA SC).

72. [1981] 1 NSWLR 126 at 161.

73. (1963) 111 CLR 610.

74. (1992) 62 A Crim R 82 at 86 (NSW CCA in the context of a sentencing appeal).

75. (1992) 62 A Crim R 82 at 85.

76. See Greene at 156; S Tarrant “Something is pushing them to the side of their own lives; A feminist critique of law and laws” (1990) 20 Western Australian Law Review 573 at 592.

77. O’Connor and Fairall at 191-2.

78. Peisley (1990) 54 A Crim R 42 at 48 (NSW CCA). Note that in cases where provocation and self-defence are run together it may be tactically inappropriate for the defendant to testify that she or he has lost control.

79. Cooke (1985) 39 SASR 225.

80. Section 23(2)(c).

81. (1964) 111 CLR 610.

82. This followed the recommendations of the New South Wales Task Force on Domestic Violence, see Weisbrot at 263.

83. Compare the recent Tasmanian decision of Attorney-General’s Reference No 1 of 1992 Re R v Roetz (unreported) Supreme Court, Tasmania, Court of Criminal Appeal, 11 June 1993 which held that there is a legal requirement in s 160 of the Tasmanian Criminal Code that the loss of self control follow suddenly upon the wrongful act or insult. This means that there must be some temporal connection between the act of provocation and the loss of self control as well as between the loss of self control and the act of retaliation.

84. See Johnson v The Queen (1976) 136 CLR 619; Van Den Hoek (1986) 161 CLR 158 at 167-8.

85. O’Connor and Fairall at 193.

86. (1986) 161 CLR 158 at 167 per Mason J.

87. Tarrant at 596.

88. Landsdowne at 81.

89. [1954] 2 All ER 801.

90. See the list of factors and the cases in which they were discussed cited in M Goode “The Abolition of Provocation” in Yeo (ed) at 44.

91. See Weisbrot at 256-259.

92. A distinction first drawn in Camplin [1978] AC 705, perhaps influenced by the work of Ashworth.

93. (1990) 171 CLR 312.

94. Stingel at 326.

95. Note that this expression is preferred to that of the “reasonable man” from the law of torts: Stingel at 328; Enright [1961] VR 663 at 669.

96. Stingel at 327.

97. Stingel at 327.

98. Stingel at 324. Age is excluded because it is an “aspect of ordinariness”.

99. (Unreported) Supreme Court, NSW, Court of Criminal Appeal, 7 October 1992, noted at (1993) 17 Criminal Law Journal 111.

100. (1991) 54 A Crim R 240. The High Court refused special leave to appeal on the ground that the Court of Criminal Appeal correctly interpreted the phrase “in the position of the accused” in accordance with Stingel, see (1991) 66 ALJR 212.

101. Jabarula v Poore (1989) 42 A Crim R 479 (NT SC).

102. (1991) 57 A Crim R 341 at 346-7 (NT CCA).

103. See, for example, Croft [1981] 1 NSWLR 126.

104. As do psychological conditions such as dependent personality disorders, see Tumanako.

105. [1978] AC 705 at 718; see also Romano (1984) 36 SASR 283 at 291.

106. Voukelatos [1990] VR 1 at 12.

107. S Yeo “Ethnicity and the Objective Test in Provocation” (1987) 16 Melbourne University Law Review 67.

108. S Yeo “Power of Self-Control in Provocation and Automatism” (1992) 14 Sydney Law Review 3 at 6-7.

109. S Yeo “Recent Australian Pronouncements on the Ordinary Person Test in Provocation and Automatism” (1991) 33 Criminal Law Quarterly 280 at 288.

110. P Brett “The Physiology of Provocation” [1970] Crim Law Review 634 at 637.

111. (1977) 138 CLR 601 at 626.

112. Yeo (1992) at 11-13. Note the cases cited in Yeo (1987) which, prior to Stingel, allowed ethnicity to be taken into account in respect of loss of self control. Yeo argues that Australian courts were developing a test which was more appropriate than Camplin in taking ethnicity into account in a more general way. However, in light of Stingel, these developments are now largely irrelevant.

113. Yeo (1987) at 72.

114. Yeo (1992) at 12.

115. Yeo (1987) at 74.

116. G Jauncey, Aboriginal Legal Service, Oral Submission (29 June 1993).

117. Yeo (1992).

118. See, for example, Weisbrot at 266-7

119. Duffy [1949] 1 All ER 932 at 933.

120. Johnson v The Queen (1976) 136 CLR 619 at 636.

121. (1990) 171 CLR 312 at 325 approving Parker (1976) 136 CLR 619 at 637-8.

122. Stingel at 325.

123. S Yeo “Lessons on Provocation from the Indian Penal Code” (1992) 14 International and Comparative Law Quarterly 615 at 624.

124. O’Connor and Fairall at 198.

125. Van Den Hoek (1986) 161 CLR 158 at 162.

126. Moffa (1977) 138 CLR 601 at 613.

127. Van Den Hoek (1986) 161 CLR 158 at 162, 169.

128. See, for example, Johnson [1989] 2 All ER 839.

129. Under the Codes, provocation is available to any crime in which assault is an element. See, for example, Queensland Criminal Code s 268-269.

130. Brown et al at 751 note 2.

131. Cunningham [1959] 1 QB 288 at 290; Farrar (1991) 53 A Crim R 387 (Vict SC).

132. Smith [1964] NZLR 834.

133. (1982) 29 SASR 217.

134. See, for example, Newman [1948] VLR 61 at 65 and Spartels [1953] VLR 194 where the charge was reduced to unlawful wounding and Helmhout (1980) 1 A Crim R (Vict SC) 103 at 106ff where the result was outright acquittal of that charge.

135. See, for example, Falla [1964] VR 78 at 80.

136. See Hempel J in Farrar (1992) 53 A Crim R 387 at 390; P English “Provocation and Attempted Murder” [1973] Criminal Law Review 727 at 735.

137. There have been a number of law reform proposals to abolish these rules: New South Wales Law Reform Commission Evidence (Report 56, 1988), cl 69 of Draft Evidence Bill; Australian Law Reform Commission Evidence (Report 38, 1987), cl 69 of Draft Evidence Bill.

138. Dincer [1983] 1 VR 460 at 468.

139. Voukelatos [1990] VR 1 at 12.

140. G Eames “Aboriginal Homicide: Customary Law Defences or Customary Lawyers’ Defences?” in H Strang and S Gerull (eds) Homicide: Patterns, Prevention and Control (Australian Institute of Criminology Conference Proceedings No 17, 1993) at 157-159.

141. See Jabarula v Poore (1989) 42 A Crim R 479 (NT SC), noted in (1989) 13 Criminal Law Journal 343.

142. Lavallee [1990] 1 SCR 852 at 871.

143. Those who think that this is not a feminist issue might like to consider that in Hill (1981) 3 A Crim R 397 (NSW CCA) (the domestic violence case which triggered the 1982 New South Wales reforms) the prosecution used all its peremptory challenges to exclude women from the jury which was ultimately composed of 11 men and 1 woman, see Brown et al at 748.

144. A Wallace Homicide the Social Reality (New South Wales Bureau of Crime Statistics and Research, 1986). See also the Western Australian, New South Wales and Victorian studies discussed in Tarrant which made essentially the same findings, see also the recent Victorian Law Reform Commission Homicide Prosecutions Study (Report 40, Appendix 6, 1991) .

145. As domestic violence is significantly under-reported this figure is likely to be low, see C Devery Domestic Violence in NSW: A Regional Analysis (New South Wales Bureau of Crime Statistics and Research, 1992) at 9.

146. See, for example, E Sheehy, J Stubbs and J Tolmie “Defending Battered Women on Trial: The Battered Woman Syndrome and its Limitations” (1992) 16 Criminal Law Journal 369.

147. See Sheehy et al; J Tolmie “Provocation or Self Defence for Battered Women Who Kill” in Yeo (ed).

148. Runjanjic and Kontinnen (1991) 53 A Crim R 362 (SA CCA) (duress); Kontinnen (unreported) Supreme Court, SA, 26 March 1992, noted in (1992) 16 Criminal Law Journal 360; Hickey (unreported) Supreme Court, NSW, 14 April 1992, noted in (1992) 16 Criminal Law Journal 271 (both self-defence). Note that in England BWS has been taken to be an abnormality of mind sufficient to bring the defence of diminished responsibility into play: Ahluwalia [1992] 4 All ER 889. Note, also, that in Roetz (unreported) Supreme Court, Tasmania, Court of Criminal Appeal, 11 June 1993 evidence of “sexual child abuse accommodation syndrome” was admitted to explain the length of time between the provocative acts and the loss of self control of the defendant. In that case Zeeman J took special note of “present day psychiatric knowledge”.

149. Beginning with State of New Jersey v Kelly (1984) 478 A2d 364. See Brown et al at 780-786 for discussion of the decision.

150. Tarrant; Sheehy et al; J Stubbs and J Tolmie “No Legal Refuge” (1992) 139 Australian Left Review 8; J Stubbs “Battered Woman Syndrome: An advance for women or further evidence of the legal system’s inability to comprehend women’s experience” (1992) 3 Current Issues in Criminal Justice 267. For a defence of BWS see P Easteal “Battered Woman Syndrome: Misunderstood?” (1992) 3 Current Issues in Criminal Justice 356.

151. (1991) 53 A Crim R 362 at 370 (per King CJ) and 372 (per Bollen J) (SA CCA).

152. Greene at 156. See, with respect to the credibility of women’s testimony, J Scutt “The Incredible Woman: A Recurring Character in Criminal Law” in P Easteal and S McKillop (eds) Women and the Law (Australian Institute of Criminology Conference Proceedings No 16, 1993).

153. R Mackay “Pleading Provocation and Diminished Responsibility Together” [1988] Criminal Law Review 411 at 419.

154. J Hunter and J Bargen “Diminished Responsibility: ‘Abnormal’ Minds, Abnormal Murderers and What the Doctor Said” in Yeo (ed) at 135.

155. (1991) 173 CLR 222 at 225, per Mason CJ, Deane, Gaudron and McHugh JJ.

156. (1991) 173 CLR 222 at 227-8, see also per Brennan J at 230.

157. Victorian Law Reform Commission Homicide Prosecutions Study (Report 40, Appendix 6, 1991).

158. Eight were committed for murder, 2 were charged with murder and 5 were initially charged with manslaughter. The other 60 cases went to trial for murder.

159. P Easteal Killing the Beloved: Homicide Between Adult Sexual Intimates (Australian Institute of Criminology, 1993) at 173. Note that Easteal’s sample was not large.

160. Legal Aid Commission Oral Submission (8 July 1993).

161. Homicide Prosecutions Study at para 153.

162. M Tedeschi QC, Crown Prosecutor Oral Submission (21 June 1993).

163. Homicide Prosecutions Study at para 154.

164. Homicide Prosecutions Study at para 155.

165. Victorian Law Reform Commission Homicide (Report 40, 1991) at para 167.

166. See the critique of the Homicide Prosecutions Study in A Howe “Provoking Comment: The Question of Gender Bias in the Provocation Defence - A Victorian Case Study” (unpublished paper).

167. It should be noted that the maximum sentence for manslaughter in Victoria is 15 years.

168. VLRC Report 40 at para 161.

169. Easteal (1993).

170. Easteal (1993) at 134.

171. Easteal (1993) at 145.

172. Easteal (1993) at 173.

173. Easteal (1993) at 173.

174. This is the effect of Kaporanovski (1973) 133 CLR 209.

175. See, for example, Hodge (1984) 13 A Crim R 458 (WA SC). This is also the case in Papua New Guinea, now confirmed by legislation. For a discussion of this issue see R O’Regan “The Definition of Provocation as a Qualified Defence Under the Griffith Code” (1989) 13 Criminal Law Journal 165.

176. Queensland Criminal Code Review Committee Final Report (1992) at 195.

177. Jeffrey [1982] Tas R 199 at 214.

178. Stingel at 322. Note, the High Court held that this interpretation is specific to the Tasmanian Code and not necessarily applicable to the differently worded provisions of Queensland or Western Australia at 323.

179. Stingel at 333.

180. Jabarula v Poore (1989) 47 A Crim R 479 (NT SC).

181. (1991) 57 A Crim R 341 at 346-7 (NT CCA).

182. See Queensland Criminal Code s 268, 269; Western Australian Criminal Code s 245, 246; Papua New Guinea Criminal Code s 272 .

183. [1980] PNGLR 326, discussed in D Chalmers, D Weisbrot and W Andrew Criminal Law and Practice of Papua New Guinea (2nd ed, Law Book Company, 1985) at 425-429; see also K Wilson “Provocation in Papua New Guinea” (1981) 5 Criminal Law Journal 128. Compare the decision of the High Court of Australia in Kaporonovski (1973) 133 CLR 209.

184. See Thornton [1992] 1 All ER 306; Ahluwahlia [1992] 4 All ER 889. Following the decision in Thornton, the Crimes (Homicide) Amendment Bill was introduced to eliminate the requirement of suddenness. The Bill lapsed, see Horder “Provocation and the Loss of Self Control” (1992) 108 Law Quarterly Review 191.

185. See, for example, Hill (1980) 3 A Crim R 397 (NSW CCA); R (1981) 4 A Crim R 127 (SA SC).

186. See, for example, Parker (1964) 111 CLR 665. Both footnotes added.

187. S Yeo “Provocation Down Under” (1991) 141 New Law Journal 1200 at 1200.

188. (1978) 112 ILTR 53.

189. [1962] NZLR 1069.

190. [1976] 1 NZLR 102.

191. See discussion in W Brookbanks “Provocation - Defining the Limits of Characteristics” (1986) 10 Criminal Law Journal 411.

192. For a general discussion, see B Brown “Provocation in New Zealand: A Characteristic Solution” in Yeo (ed).

193. [1978] AC 705 at 727.

194. New Zealand Criminal Law Reform Committee Report on Culpable Homicide (1976).

195. It should be noted that the Culpable Homicide Report and the subsequent Bill dealt not only with provocation but surveyed the entire law of homicide. The Bill contains new general endangerment offences which do not require proof of death or injury and abolishes the mandatory life sentence.

196. See, for example, B Brown “Culpable Homicide, Endangerment and Aggravated Violence: New Crimes for the Times?” [1989] New Zealand Recent Law Review 299; Brown in Yeo (ed); C Cato “Violent Offending and the Crimes Bill 1989: A Criticism” (1989) New Zealand Law Journal 246.

197. Brown (1989) at 300, 307.

198. Crimes Consultative Committee Crimes Bill 1989: Report of the Crimes Consultative Committee (1991).

199. They both derive from s 176 of Stephen’s English Draft Code.

200. For an analysis of the elements of the offence in Canada, see T Quigley “Deciphering the Defence of Provocation” (1989) 38 University of New Brunswick Law Journal 11; E Colvin Principles of Criminal Law (2nd ed, Carswell, 1991).

201. (1986) 25 CCC (3d) 322.

202. T Quigley “Battered Women and the Defence of Provocation” (1991) 55 Saskatchewan Law Review 223 at 244.

203. Quigley (1991) at 249-50.

204. The Code was also adopted in Sri Lanka, Malaysia, Singapore, Nigeria and the Sudan. The information in this section is taken from S Yeo “Lessons on Provocation from the Indian Penal Code” (1992) 41 International and Comparative Law Quarterly 615.

205. House of Lords Select Committee on Murder and Life Imprisonment Report (1989).

206. Criminal Code Review Committee Final Report (1992).

207. Clause 128 of Draft Crimes Bill 1989 (NZ) implementing the recommendations of the New Zealand Criminal Law Reform Committee Report on Culpable Homicide (1976). Note that the Crimes Consultative Committee in its review of the Crimes Bill (Crimes Bill 1989: Report of the Crimes Consultative Committee (1991)) thought that it was unnecessary to provide that provocation be taken into account in respect of penalty lest it give greater emphasis to provocation over other mitigating factors.

208. Australia. Attorney General’s Department Review of Commonwealth Criminal Law: Principles of Criminal Responsibility and Other Matters (AGPS, 1990) (The Gibbs Report) at para 13.56.

209. Law Reform Commission of Canada Recodifying Criminal Law (Report 31, 1987), see Quigley (1991) at 257.

210. South Australia Criminal Law and Penal Methods Reform Committee The Substantive Criminal Law (Fourth Report, 1977) (The Mitchell Report) at para 11.1; Victorian Law Reform Commissioner Provocation and Diminished Responsibility as Defences to Murder (Report 12, 1982) at para 1.30; People v MacEoin [1978] 112 ILTR 53 (abolishing the objective test in Ireland) and a number of Judges and academic commentators.

211. This was recommended by Criminal Law Review Committee Offences Against the Person (Report 14, 1980) at para 81-2. The England and Wales Law Commission A Criminal Code for England and Wales (Report 177, 1989) proposed a slightly different formulation which retained the gravity/self control distinction, cl 58.

212. Victorian Law Reform Commission Homicide (Report 40, 1991) recommendation 21.

213. VLRC Report 40 recommendation 25.

214. VLRC Report 40 recommendation 23.

215. CLRC Report 14 at para 85. See also cl 58 of the England and Wales Law Commission Report 177; VLRC Report 40 recommendation 24.

216. Australian Law Reform Commission Multiculturalism and the Law (Report 57, 1992) at para 8.36 referring to Evidence Bill 1991 (Cth). See also Australian Law Reform Commission Recognition of Aboriginal Customary Laws vol 1 (Report 31, 1986) at para 441 and law reform reports on evidence referred to above at footnote 137.

217. M Sides QC, Acting Senior Public Defender Submission (18 May 1993). It might, however, be noted that where men killed in a domestic context, there was a recorded history of domestic violence in over half of the cases. See Wallace and note that as domestic violence is significantly under-reported this figure is likely to be low, see C Devery Domestic Violence in NSW: A Regional Analysis (New South Wales Bureau of Crime Statistics and Research, 1992) at 9. These offenders cannot be said to be “otherwise of good character”.

218. New South Wales Bureau of Crime Statistics and Research, unpublished data.

219. (1987) 162 CLR 645. See the discussion by Goode in Yeo (ed) at 51-52.

220. See, for example, Fisse at 102ff.

221. For arguments in favour of self-defence, see J Tolmie “Provocation or Self-Defence for Battered Women Who Kill” in Yeo (ed). For proposals for a defence specific to victims of domestic violence, see Z Rathus Response to the First Interim Report of the Criminal Code Review Committee (Women’s Legal Services Inc, 1991). See also proposals by South Australian Domestic Violence Council Report of the South Australian Domestic Violence Council (Adelaide, 1987) for a new complete defence where there is a proven history of violence against the defendant. But cf Z Rathus Rougher Than Usual Handling: Women and the Criminal Justice System (Queensland Association of Independent Legal Services, 1993) questioning the viability of such a defence and preferring to concentrate on expanding the law of self-defence and provocation.