Published on 16/04/2007

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Provocation

1.0 Definition

D kills V as a result of V’s action: “some act by the V to the accused which would cause in any reasonable person and does so cause in the accused a sudden and temporary loss of self control, rendering accused subject passion so as to make him for the moment not master of his mind.” ® Duffy [1949] 1 All ER 932 per Lord Devlin

2.0 Crimes Act s23
23(1) Reduces murder to manslaughter
23(2)(a)           Requires loss of self-control - Subjective Test
                      Provocative conduct must emanate from the deceased
                      Provocative conduct must be towards or affecting the accused
23(2)(b)           Objective test - could a normal person have reacted to the provocation in the same way?
23(3) No need for the response to be proportional or sudden and requires Intent to take life or inflict GBH.
23(4) Non-affirmative offence. Once raised, onus is on prosecution to disprove.

COMPLETE EXTRACT FROM CRIMES ACT

Section 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
(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 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

3.0 Scope & rationale of the defence

If evidence of provocation emerges from the evidence, it must be put to the jury as a possible defence, as seen in Burke and Parker No. 2

s23a - Before provocation becomes a relevant defence in a murder trial, the prosecution must have satisfied the jury beyond a reasonable doubt that the accused has committed murder. Lee Chun-Chien v The Queen [1963] per Lord Devlin

A person who is provoked to kill another by the latter may in certain circumstances have liability for murder reduced to that for manslaughter. s23

When D discharges the evidential onus, with the result that the defence of provocation is left with the jury, then, supposing that it can in the first place prove murder, the prosecution must negative the elements of defence beyond reasonable doubt. - Johnson v R (1976)

The Defence of Provocation consists of 3 elements:

1)    Provocative conduct on the part of the victim or 3rd party; such that

2)    The oridinary person would also have lost self-control to such an extent that it caused the formation of an intent as to death or grievousbodily harm; (OBJECTIVE TEST) and

3)      When the relevant act constituting the killing takes place, the accused must actually have lost self-control as a result of the provocative conduct (SUBJECTIVE TEST)

Both subject and objective tests must be satisfied in order to hold this defence and succeed.

3.0 Conduct amounting to provocation (Most of these cases confirm or negate subjective test)

3.1 Adultery as provocation

A sudden confession of adultery without more can never constitute provocation of a sort to reduce murder to manslaughter, as seen in Holmes v DPP.

Confessions of adultery on their own accord cannot afford the defence of provocation, however in these circumstances, a reasonable person could in fact lose self control, so as to form intention to cause GBH, and the defendant in fact did. It was held that this was not a case of mere words. Also, the onus is on the prosecution to negative the defence of provocation, as seen in Moffa v R.

The Facts: The defendant killed his wife by hitting her on the head with a lead pipe. This came about because the wife refused to have sex with the defendant and threatened to leave him. She admitted to sleeping around and produced photographic evidence. She then threw the phone at the defendant.

3.2 Can Words provoke?

Mere words are not enough to justify provocation. They must be of an extreme and exceptional character. The statute describes such words as "grossly insulting” - s23 (2)(a)

Words communicating a confession of adultery and accompanied by verbal insult (and in this case an alleged minor assault) could qualify if of a violently provocative or exceptional character, as seen in Moffa v R .

Further, words when of an appropriately violent character can qualify as provocation, especially those that communicate a threat as those, which are uttered by way of blackmail. R (1982)

Words must be of a “violently provocative character”, as seen in Holmes v DPP.
Further concluded in Parker v R, that mere words not of an exceptional character cannot qualify.

3.3 Provocation need not be unlawful

The Queen v R (1981)
Moffa (1977)

3.4 Provocation must take place in presence of D

You must be within sight and hearing of the provoking conduct, in order to be provoked, as seen in Quartley.

“There must be some conduct on the part of V in order to establish provocation in law; it is not sufficient for an accused to be informed by another of conduct” - Arden v R
OR
It was a necessary element of provocation that the conduct of the deceased, which provoked the accused, must have occurred in the presence of the accused - Arden v R

3.5 History of Provocative Conduct

It is proper in deciding whether the trigger incident has caused the loss of self control and whether it could have had a similar effect on an ordinary person, to look at the whole history of the provocative incident, as seen in Hill (1981)
OR
A history of abuse or violence can be relevant to the tests for provocation, as seen in Hill (1981)

There is no requirement that the killing immediately follow the provocative act or conduct of the deceased. The loss of self-control can develop after a lengthy period of abuse and without the necessity for a specific triggering incident, as seen in R v Chhay.

3.6 Must provocative conduct come from Victim? YES

The provocation must stem or emanate from the deceased s23(s)(a) “conduct of the deceased” and the

“Conduct done by the dead man to the accused”, as seen in Duffy (1949)

“Defence of provocation need not necessarily be conduct of the deceased personally if the conduct is in the presence of the deceased by a person so closely associated with the deceased that it is reasonable for the jury to attribute the conduct of that person to the deceased”, as seen in Tumanko v R.

However, it is established in Scriva (No 2) [1951] whereby, “It was held that because there was no provocative conduct by the bystander this was not provocation. The provocative conduct must emanate from the deceased.”.

The Facts: The defendant’s child was killed by a car. Enraged at the driver, an innocent bystander stepped in and the defendant killed him

The mere fact that the provocation was not offered by the deceased to the accused, but was offered to the deceased’s wife (who was also the accused’s sister), does not prevent the operation, as seen in Terry [1964].

3.7 Must provocative conduct be aimed at the defendants? YES

It is held that provocation must directly involve the defendant and the victim even though the actual element of provocation may not be intentionally or directly against the defendant, as seen in Quartly.

The Facts: The victim befriended a girl after her relationship had broken down with the defendant. The defendant did not like the victim so he killed him on the basis that he was a bad person and that he was concerned for the girl’s welfare

3.8 D causes provocative conduct or self-inducted provocation.

Provocation should be left to the jury if the response of the victim to the accused’s own provocative acts may have been out of proportion to that which might naturally have been expected.
OR
You cannot rely on the predictable results of your own actions, if you induce another person into provoking conduct, unless the provoking conduct is unpredictable of extreme.

This basic notion is established in Edwards, whereby the court said: “On principle, D cannot rely on the predictable results of his own blackmailing as conduct constituting provocation, but if hostile reaction by person sought to be blackmailed goes to extreme lengths it might constitute provocation even for the blackmailer.”

The Facts: The defendant blackmailed the victim, which led to a fight between the two. The defendant stabbed the victim 27 times.

A defendant can rely on provocation where the victim’s actions were of extreme unpredictable character and not otherwise, as seen in Thorpe [1999].

The facts: The defendant and the victim had an argument. The defendant returned later and killed the victim

3.9 Provocation can be such as to arose fear, as contrast to anger and revenge.

In Peisley (1990) the courts held that there was no provocation, the defendant was just angry.

The facts: The defendant was suspicious and accused the victim of sexually assaulting children and supplying drugs. There was a history of problems between the two. The defendant’s wife come home one day and told the defendant that the victim had manhandled her and tried to throw her down some steps. The two then had a fight, and the victim laughed at the defendant and confessed to the accusations. The defendant shot the victim and his wife

The court held in Chhay (1994), that the defence of provocation cannot be used upon the view that the victim got his just deserves. The law does not promote self help.
OR
Provocation should not be confused with revenge. It cannot be founded on the view that the victim got his just deserved, as seen in Chhay (1994).

The facts: The defendant killed her husband with a meat cleaver after a long history of domestic violence, a case of battered wife syndrome.

3.10 Third-Party Conduct

Where D has been provoked by a person and in the course of attempting to strike a blow against that person, D accidentally kills V, D can plead provocation when charged with V’s death, as seen in R v Kenney.

Also seen in, Gardener (989) whereby, D is provoked by V1 and in the cause of killing V1 D kills another person, V2, in close proximity while under the influence of V1’s provocation, then according to a decision by the Victorian Court CA, D can raise provocation in relation to the killing of V2, as well as the death of V1.

4.0 Subjective Test

The content and extent of the provocative conduct is assessed from the viewpoint of the particular accused. This is the subjective element of the defence.

4.1 D react suddenly

Section 23(3), sudden and temporary loss of self control not necessary.

Although in the common law jurisdictions it is no longer necessary that the loss of self-control be sudden, the fact that defendant’s reaction is immediate is a factor to be considered in his favour. Parker v R; s23 (2) & (3) Crimes Act (NSW).

4.2 Intent not consistent with invocation of defence

Lee Chun-Chuen v R [1963] AC 220 – Where there is some reasonable evidence of provocation, it must be left to the jury, even though it has not been raised by the defense and even though the accused has not given evidence of actual loss of self-control.
OR
For provocation to be available as a defence, the intention must have arisen from sudden passion involving loss of self control by reasons of provocation, as seen in Lee Chun-Chuen v R

The Facts: Accused charged with murder and raised provocation as a defence.
The Decision: The defence of provocation was available to an accused where he intended to kill or cause GBH but such intention must have arisen from sudden passion involving loss of self control by reason of provocation.

Johnson v R (1976)

4.3 Intoxication

Webb (1977)

When considering whether the accused lost control as the result of provocative behavior, his or her state of sobriety and personal characteristics are to be taken into account, as held by the courts in Cooke - Subjective Test.

“Provocation…. is as available to an intoxicated accused as to a sober accused. If an intoxicated accused has in fact lost his or her self control, it becomes a question of fact for the jury that loss of self control was caused by the deceased’s words or conduct, or solely by the inflammatory effects of drink or drugs”.

The fact of D being intoxicated may be relevant to the subjective but not objective test and the issue of causation.

4.4 Mistaken belief

Where D is mistaken as to the fact of, or source of provocation as seen in R v Dib (2002).

The facts: The accused believed that the deceased was part of a group attacking his brother. The deceased had a minor role in the melee but was killed by the accused with a knife.
The decision: Trail judge in making his decision to reject the plea of manslaughter, had to base that decision on whether a person could rely on a mistaken belief in fact as the basis for provocation. A new trial was then required.

Continued on Page 2

Provocation continued

5.0 Objective Ordinary Person Test

Would an ordinary person in D’s position be provoked into losing self-control to such an extent?

5.1 Reasonable or Ordinary Person - An ordinary person in the position of the accused.

The jury must consider whether the facts of D’s position were such that a hypothetical ordinary person placed in the same position might have been similarly provoked into losing their self-control to such an extent as to kill the deceased - s23(2)(b)

5.2 Characteristics of Ordinary Person

Characteristics attributed to the hypothetical ordinary person - DPP v Camplin (1978)

“Ordinary man referred to… a person knowing the power of self control to be expected of an ordinary person of the sex and age of the accused, but in other respects sharing such of the accused’s characteristics as they think would affect the gravity of the provocation to him.”

The Facts: A 15-year-old boy kills a middle aged Pakistani man. Accused states the victim abused him and laughed at his shame. He claims he was provoked to hit him over the head with a pan.
The Decision: A plural set of objective standards for race, age, gender, etc, is applied to the question of whether a typical person in the position of the accused would have lost control.

Characteristics of an ordinary person - “A person possessing all characteristics and idiosyncrasies of the accused; age, sex, race, colour, physical defects etc., that would have affected his conduct in the circumstances the accused found himself.” Dutton (1979)

- The provocative conduct must have been capable provoking an ordinary person not merely to some retaliation but to retaliation to the degree and method of continuation of violence, which produces death. Stingel v R (1990).

The facts: The 19yr old accused was convicted of murder by stabbing a man who was in a relationship with a woman he liked. His basis for provocation was that the deceased had used insulting words.

Issue: What is the relevant standard to be applied to assessment of provocation?
The decision: The objective standard is “a person with powers of self control within the range or limits of what is “ordinary” for the person of the relevant age.

- The ordinary test embodies the “ordinary or common range of temperaments” and thereby delineating the boundaries of what the law considers a reasonable reaction to provocation.

- Thus: would a 19yr old person generally have lost control to the extent that he would form an intention to kill or do so? The wrongful act or insult must have been capable of provoking an ordinary person to retaliation to the degree and method and continence of violence, which produces the death.

Masciantonio (1994) - The attributes or characteristics of the accused are relevant in assessing the gravity of the conduct is said to constitute the provocation.

The Facts: Son-in-law is married to accused daughter: their marriage is unhappy, with the son-in-law abusing his daughter. Attempts by the accused are to solve the issue but are rejected. Accused attempts for talks again but is refused, a scuffle breaks out and the accused stabs the son-in-law. Accused had head injuries which causes disassociate state when under stress.

The decision: The Majority stated, “the question is whether the provocation, measured in gravity by reference to the personal situation of the accused, could have caused an ordinary person to form an intention to kill or do GBH and to act upon that intention, as the accused did, so as to give effect to it”.

Green (1997) - It was held in this case that regard should be given to the defendant’s family history in establishing the ordinary person test.

The facts: D & V were friends out drinking. D stayed out at V’s place. D beat and stabbed V while in bed. (He claimed V came on to him in bed).
The Decision: 3:2 Majority concluded that the trial judge had erred in not allowing evidence of the history of violence and sexual abuse in the accused’s family, as this was relevant to the question of the gravity of the provocative conduct.

Gravity of Provocation

It must be established that an ordinary person in the position of the defendant could or might have been provoked into losing self-control and forming an intention to kill or inflict grievous bodily harm - Masciantonio v R; Green v R; Stingel v R

The objective test is two tiered

1) What is the gravity of the provocation faced by the Accused (Factors include age, sex, race, ethnicity, physical features, personal relationships and personal history)

2) Could/would provocation of that degree or gravity cause an ordinary person to lose self control and form an intention to kill or cause grievous bodily harm? (Factor is only Age)

Assessing Gravity

The gravity of the provocation must be assessed from the viewpoint of the defendant Masciantonio v R; Green v R.

In assessing the gravity all of the defendants characteristics that are relevant to the gravity of the provocation may be taken into account. Ie ethnic background etc. Masciantonio v R Immature age Stingel v R. Given these factors the gravity of provocation is high.

Dincer [1983] - Permanent characteristics of the accused should be taken into consideration for the ordinary man test.

The facts: A girl in a sexual relationship with an older man. Her Turkish father confronted and stabbed the girl out of religious reasons.
The decision: It was held that permanent characteristics, which distinguished the defendant from the ordinary man, might be taken into account in determining the ordinary person test.

5.3 Provocation would or might cause an ordinary person to react as D reacts.

1. Would the typical ordinary person lose self-control in response to the victims conduct?

- DPP v Camplin, Green, Stingel v R (Previously discussed)

2. Would the typical ordinary man have been provoked to the extent of the accused such as to form illegal intent as to death or GBH?

- Masciantonio,

5.4 Conduct must be capable of provocation retaliation of a relevant degree.

The provocative conduct must have been capable provoking an ordinary person not merely to some retaliation but to retaliation to the degree and method of continuation of violence, which produces death. Stingel v R (1990).

Facts: Previously stated in Characteristics of ordinary person.

5.5 Intoxication

Intoxication cannot be attributed to the ordinary man. s428F prohibits imputing intoxication to the hypothetical reasonable (or ordinary) person when applying a reasonable (ordinary) person test.

5.6 Actual Loss of Self Control

Masciantonio - it must be such that it is capable of causing an ordinary person to lose self-control, and did actually cause the accused to lose self-control and act in the way in which the accused acted while he was deprived of self-control.

Also, The court held that it was not the question to ask whether an ordinary person would have regained control. The question was whether they would have lost self control in the first place.

(Facts: As discussed previously)
OR
Arguably defendant lost self-control and stabbed plaintiff whilst deprived of self-control. We are told that by gritting his teeth in fury as he reached for his knife following which he stabbed plaintiff repeatedly. This frenzied nature of attack Is consistent with a loss of self-control Masciantonio v R.

Stingel v R - “any wrongful act or insult of such a 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”. (Facts: As discussed previously)

However, it was held in, Osland - It was held that there was no loss of self control, as the victims death was obviously planned

The facts: Wife and son of V plan his murder. They dug the grave on the day they planned to carry out the murder. The son struck his father on the head with an iron pipe and killed him. He buried him in the grave. The wife was charged with murder, the son was acquitted.

Act of Retaliation need not be proportional to provocation - Johnson v R (1976)

The Facts: The Accused and his brother were convicted of the murder of their father as a result of a fight and they plead provocation. The Trail Judge stated the accused bore the onus of establishing that the act of retaliation was commensurate with the provocation offered.

Held: There is no separate requirement either at common law or under the Crimes Act (NSW) that the retaliation be proportionate to the provocation.

Battered Wives

There is no requirement that the killing immediately follow the provocative act or conduct of the deceased. The loss of self-control can develop after a lengthy period of abuse and without the necessity for a specific triggering incident, as seen in R v Chhay.

The Facts: Accused was convicted of the murder of her husband after a long history of domestic violence. She chopped him up with a meat cleaver, whilst he was asleep.

6. 0 Self defence and provocation defence can be used concurrently - Perks (1986)

Procedural Aspects s23(4)

a)      Judge

Judge must direct the jury, iner alia, that the accused bore the onus of establishing all the elements necessary to constitute provocation - Johnson v R

- Webb (1977)
- Van den Hoek (1986)

b)      Jury

If evidence of provocation emerges from the evidence, it must be put to the jury as a possible defence, as seen in Parker No. 2

Moffa v R - Once the issue of provocation was before the jury, the onus was on the crown to establish beyond a reasonable doubt that the killing was unprovoked.

c)      Evidential Onus

Johnson v R - The burden of proof in establishing provocation rested on the accused.

When D discharges the evidential onus, with the result that the defence of provocation is left with the jury, then, supposing that it can in the first place prove murder, the prosecution must negative the elements of defence beyond reasonable doubt - Johnson v R

Parker(No 1) (1963) - If the evidence contained some reasonable evidence of provocation, then it must be left to the jury even though the issue had not been specifically raised by the defence.

-         Lee Chun-Chuen v R [1963]
-         Da Costa v R (1968)
-         R v Camplin [1978]