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Defences Provocation Notes

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6. Defences: Provocation

* AR

* MR

* No defence (no authority, just, excuse)

General Reason for defences:

* Justifications: justify acts; defendant was wrong to do what: self-defence

* Excuses: excuse actors; defendant was wrong to do what he/she did, but, under these circumstances, liability is not appropriate: provocation

* Exemptions: defendant is not a person to whom the criminal law speaks: insanity Provocation

Elements of provocation:

* Provoking circumstances

* Loss of self-control (subjective test)

* Could an ordinary person have lost self-control? (Objective test)

* Gravity or the provocation

* Loss of self-control Nature Partial defence to murder only. Reduces murder to manslaughter.

* Therefore the jury must be satisfied as to the elements for murder before provocation becomes an issue.

* Is referred to as 'voluntary' or 'intentional' manslaughter. History and Context of Provocation When men bore arms, an insult to honour might have led to a killing done suddenly, in the heat of passion. Distinction between cold-blooded, premeditated killings warranting verdict of murder and death penalty and hot- blooded killings (re 'loss of control') deemed to warrant some reduction in punishment. Insults to male honour

* Not just armed fights/duels
mere slap a sufficient 'insult'

* From sight of wife committing adultery

* "jealousy is the rage of man, and adultery is the highest invasion of property" Lord Holt (1707) Provocation -- A Balancing Act?
[A]s society advances it ought to call for a higher measure of self-control in all cases.

* However, the law has to reconcile respect for the sanctity of human life with recognition of the effect of provocation on human frailty." Viscount Simon in Holmes [1946 House of Lords]
Development of "reasonable man" test to introduce element of community standards and so limit availability of defence

* In 18th century, the Court listed four categories of case which were "by general consent" allowed to be sufficient provocations:

* The quarrel which escalated from words to physical assault; 1

6. Defences: Provocation

* A quarrel in which a friend of the person assaulted joined in and gave the deadly blow;

* Where someone took the part of a fellow-citizen who was being "injuriously treated";

* Killing a man in the act of adultery with one's wife.

* In 19th century, Courts changed in two ways:

* They generalised the specific situations which the old law had regarded as sufficient provocation into a rule that whatever the alleged provocation, the response had to be "reasonable".

* They shifted the emphasis of the law from the question of whether the angry retaliation by the accused, though excessive, was in principle justified, to a consideration of whether the accused had lost his self-control. Now Crimes Act 1900 (NSW), s 23

23 Trial for murder-provocation

Provocation will not be negatived when

(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.

* Requirements for a loss of control

* Section 23 modifies the common law of provocation.

* Major changes to old common law position (in 1982)

* Fatal response need not be sudden
Provocative conduct either immediately before killing, or
At any previous times

* Still crucial that the defendant lost control and killed under provocation. Assessing Provocation by Three Steps Identify the provocative circumstances / conduct. Has the defendant lost self-control?
If the defendant has lost self-control, could the conduct of the victim have induced an ordinary person to so far lose self-control as to have formed an intent to kill or cause GBH?
Ordinary person test consists of two components: 2

6. Defences: Provocation

* Gravity of the provocation; and

* Standard of self-control of an ordinary person. Provocative Conduct / Circumstances Words

1. The appellant was convicted of murder.

2. He appealed on the basis that the trial judge had erred by ruling that the defence of provocation could not be left to the jury.

3. The facts were that the appellant had at one time lived in a relationship with a woman with a three-year-old daughter.The girl and the deceased had been close and he regarded her as his stepdaughter.

4. The girl complained that C had sexually assaulted her.

5. C also admitted to indecently assaulting the five-year-old niece of the appellant.

6. Some days after the appellant became aware of the conduct of C, he killed him.

7. There was no evidence of any incident where C, in the presence or hearing of the appellant, had done or said anything which could be said to have provoked the appellant, resulting in a loss of self-control on his part. Held, Appeal dismissed.The accused could not rely on a defence of provocation.

1. The appellant had formerly been in a relationship with one Julie Jacobs, who subsequently formed a relationship with the deceased which was apparently stormy with some physical violence on the part of the deceased.

2. The deceased also used heroin and supplied it to Miss Jacobs.

3. On the afternoon of 2 April 1984, the appellant saw Miss Jacobs at a hotel and told her to keep away from the deceased, and that she would get into trouble if she stayed with him.

4. She remained at the hotel with the deceased for some hours, but here was no talk between the appellant and the deceased during that time.

5. Shortly after Miss Jacobs and the deceased left the hotel, the appellant shot the deceased in the men's toilet at a nearby railway station.

6. In his statement from the dock the appellant said in effect that he was intoxicated and did not really know whether he had killed the deceased or not.

7. But the accused went on to say that a friend of Miss Jacobs had told him that on the previous Saturday night the deceased had raped Miss Jacobs, and that on the day of the shooting Miss Jacobs had confirmed the rape and also a bashing by the deceased, and also that he had been told the deceased was supplying drugs to Miss Jacobs. Held, Appeal dismissed.The accused could not rely on the defence of provocation.

Can be lawful Generally in presence / hearing of the accused Generally victim or victim related Generally not self-induced non-violent sexual advance towards or affecting the accused: Davis (1998) Must the conduct be towards of affecting the defendant?

* The provocation must be within the sight or hearing of the defendant: Davis (1998), Quartly (1986)

* 'Hearsay provocation' - being told about something provocative is not sufficient for the defence of provocation. Davis (1998) 100 A Crim R 573 Under the Crimes Act 1900 (NSW), s 23(2), the defence of provocation is not open to an accused charged with murder unless the words, conduct or gestures claimed to amount to provocation occurred in the hearing or presence of the accused. Other opinion There has not been a consensus in regards of the rule that within the sight or hearing of the accused should be an element for provocation. Section 23(2)(a) provides that the provocation may be "any conduct of the deceased...towards or affecting the accused". The section contains no express requirement that the conduct must occur within sight or hearing of the accused. Davis sought leave to appeal to the High Court. Although special Leave was not granted, the court (per McHugh and Hayne JJ) expressed interest in the defence submission stating:

* ..The decision in R v Quartly (1986) 11 NSWLR 332 that provocation is not available to reduce murder to manslaughter when the provocation is not committed in the presence of the accused, but is reported to him or her, is to be doubted. Having regard to the Crimes Act 1900 (NSW), it would seem sufficient for an accused to show that there was provocation on the part of the deceased and that it induced the accused to lose his or her self-control. However, in the present case, given the circumstances and the time that elapsed between the reporting of the provocation and the killing, no reasonable jury could have been satisfied that the killing was due to loss of self-control through provocation. Quartly (1986) 22 A Crim R 252

* The policy of the common law had always been that provocation became a factor in a murder trial when the killing could be sensibly related to a reaction by an accused person to some conduct of the deceased of which he or she personally had experience, even though it need not necessarily in every case be directed towards him or her.

* The words "affecting the accused" in the Crimes Act 1900 (NSW), s 23(2) (a), had not altered the common law as to the nature of the provocative incident in provocation. Those words were designed to cover the case where the provocation was not to be regarded as directed towards the accused but could none the less be said to affect him or her. The provocative incident must still be conduct of the deceased seen or heard by the accused. Can words alone amount to provocation?

* s 23(2)(a): was induced by any conduct of the deceased (including grossly insulting words or gestures) towards or affecting the accused 3

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