Week 5 – Defences: Provocation (20th March)

Summary of lecture

The distinction between arguments in form of defence and defences the defendant can
make.

Distinction between partial and complete defences:

 Partial: Provocation (Week 5), s 23 Crimes Act (NSW)
 Complete: Self- defence, ss 418-423, Crimes Act (NSW) – note the effect of
excessive self-defence (s 421)

Particular issues:
 For which offences are those defences available? – restricted in some way?
 Onus and standard of proof for each defence?
 Impact of intoxication on these defences?

Other defences:
 Partial defences that we looked at briefly in relation to voluntary manslaughter (ie
defences that reduce what would otherwise be murder to manslaughter) but that
we will not discuss further this semester:
 infanticide (s 22A), diminished responsibility (s23A)
 Complete defences that we will not have time to look at in this course (but
remember the Federal Criminal Law elective)
 necessity, duress, …

Arguments in Defence vs “Defences”

What do you know about arguments in defence?

 Things defence can put forward to dispute the actual liability of a defendant.
 Whether there was actus reus or mens rea.
 Eg. Involuntatriness/automatism
 Eg. Intoxication
 These are NOT “defences”. Not relevant to establishing liability but establishing
blameworthiness or excuse/justification of the offence.

Complete Defences

 Core idea in distinguishing partial and complete defence is the consequence.

 If successful, leads to acquittal (set free)
 Not confined in their application to particular offences. In the context of necessity
and duress can be argued to any type of offence. Self-defence is related to the
person.
Partial defences

 Reduces murder to manslaughter – effect of successful partial defence is to label

the accused at a lower level of culpability and expose to lower level of sentencing
 Eg. When provocation is successfully argued.
 Confined in their application to charges. Eg. Cannot argue provocation to a charge
of an assault. Confined to murder.

Is there a place for partial defences (particularly provocation) in modern criminal

law?

 Judges have discretion to apply sentencing to murder and manslaughter.

 Some jurisdictions say NO
 Victoria – Never to enact a defence of diminished responsibility (B&McS -
328)
 NSW – NSW Law Reform Commission recommended infanticide to be
abolished
 Why the controversies?
 Tasmania, Victoria, WA Model Criminal Code and Comm Criminal Code
have all taken the position that provocation is anachronistic and have
abolished it
 If commit murder in Tasmania, in response to provocative conduct of the
victim, one cannot argue with provocation
 When liability should be reduced?
 If keep provocation kept in NSW, should there be a limit?
 Self-defence is more appropriate.

Provocation: Rationale

“The rationale of the doctrine is the frailty of human nature and the consequent need to
make concessions to that frailty.”- Masciantonio (1995) 183 CLR 58 (McHugh J) – see
p 170 SMs.
– Concession to a lack of anger management skills or self-control in the relevant
provocative circumstances.
– “The kind of loss of self-control that is here in question is not something that results
in a state of automatism. Rather it is something that results in intentional homicide,
the conduct of the accused, and the intent with which that conduct occurred, being
attributable to the accused's emotional response to the provocation.” Chhay v R
(1994) 72 A Crim R 1, 8 (Gleeson CJ)
 Distinguish between the most serious types of killing (involving “malice
aforethought” and unplanned, sudden, spur of the moment homicide in response to
provocative conduct (including perceived insult of injury).
 Original way the partial defence (provocation) worked was about loss of self-
control due to anger. Case law had to develop, in modern context, in relation to
situation where provocative conduct eroded the self-control of, usually woman, and
death resulted from that circumstance.
 Historical context:
 death penalty
 empathy with a victim of insult or violence who reacts with violence which
turns out to be lethal
 Historically, in a sudden one-off transaction even between relative
strangers (blood boiling)
 But what about as a result of a long history of suffering abuse from a
bully, spouse, institution? (blood simmering? Straw that breaks the
camel’s back? Needing to escape a cycle of violence and battering?)

Provocation in NSW – Section 23 Crimes Act 1900 (NSW)

23 Trial for murder—provocation

(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

 Loss of self-control linked by conduct of deceased, doesn’t have to be actually

violence. Can be grossly insulting words or gestures.

(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.

 Not talking about reasonable person but ordinary person. A reasonable person
would not be losing self-control. Level and range of self-control we can expect
from ordinary person. Don’t have to be perfect or reasonable.
 Not saying they were incapable of forming mens rea, but ordinary person in this
position could have been so provoked to create the intent.

 No requirement that the provocative conduct occurs immediately before the act or
omission causing death. Can have occurred during 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 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.

Questions re s 23

Q: a defence to which crime(s)?

A: murder (s23(1))

Q: a partial or a complete defence?

A: partial (s 23(1))

Q: who bears the evidential burden?

A: the defence (not expressly stated in the provision but axiomatic re “defences”)

Q: onus on prosecution, once provocation has been raised?

A: the prosecution bears the legal burden to negate provocation beyond reasonable
doubt (s 23(4))

• NB the role of a jury and the importance of jury directions (see B & McS pp 313-
4 and NSW Bench Book in Add Mats).

Provocation – Important Cases

Stingel v The Queen (1990) 171 CLR 313 (p 161ff SMs)

Facts:
 Case re the operation of s 160 of the Tasmanian Criminal Code.
 19 year old under a restraining order stalks “ex-girlfriend” and sees her engaging in
sexual activity with a man (Taylor) in a car.
 Opens the car door and is told where to go by the new boyfriend.
 Goes back to his car and gets a butcher’s knife.
 Stabs Taylor to death.
 In an unsworn statement, says that seeing the woman engaged in sexual activity with
Taylor together with Taylor’s words had caused him to lose self-control.
 Appeal of HC re operation of s 160 provocation defence in the Tasmanian Criminal
Code on the basis that the trail judge had ruled that there was insufficient evidence
of provocation and therefore the question was not left to the jury for consideration.
 On that basis, Stingel appealed and the case went to the High Court.
 Unanimous decision of HC (Mason CJ, Brennan, Deane, Dawson, Toohey,
Gaudron and McHugh JJ):
 “One finds in the authorities, including some Tasmanian judgments, a
perception that, in this particular field of criminal law [provocation] the
common law, the Codes and other statutory provisions, and judicial
decisions about them, have tended to interact and to reflect a degree of
unity of underlying notions.” (See SMs p 161)

So the case clarifies provocation in NSW also.

 Provocation requires (see case + overview in B & McS p 297):

- Provocative conduct;
- The actual loss of self-control as a result of the provocation;
- The provocation must be such that it could cause an ordinary person
to so far lose self-control that they form an intent to kill or to inflict
gbh (ie the MR for murder).

 There are subjective + objective elements of the test. What?

Week 5 – Defences: Provocation (23rd March)