CRIMINAL LAW AND PROCEDURE

LWB232

WEEK 8

PROVOCATION

Provocation: Rationales for the Excuse.

Provocation developed: as a concession to human frailty, with some

"contributory fault" on the part of the victim; historically as a means of avoiding the

unacceptable harshness of a mandatory death penalty for murder in these circumstances.

BUT...

Provocation: Purpose of the Objective Test.

The objective "ORDINARY PERSON" test developed to restrict the scope of the excuse (rather than to reflect its rationales as above) through the maintenance of objective standards of behaviour.

Abolish Provocation? Some Arguments..Matter for sentence; Special form of diminished responsibility; Rationale uncertain (particularly if it is that victim

deserves it): if murderous intent exists, is loss of self control a sufficient moral or legal reason to distinguish provoked killers from cold blooded killers?

Operates unjustly because accused must react suddenly to provocation: cf "coldblooded" killing of an abusive partner (not excused) with "hotblooded" killing by a person who discovers unfaithful partner (excused).

Gleeson CJ in Chhay (1994): concession to human frailty is to male frailty.

PROVOCATION UNDER THE QCC s 304: reduces murder to manslaughter (as per common

law). s 268 defn of provocation provides a complete excuse for

offences of which assault is an element: see s 269 excuse. (No common law equivalent).

s 268 defn does not apply to s 304: See Kaporonovski Therefore, s 304 bears common law meaning as

expounded from time to time.Not amended in 1997 review.Reviewed by Women’s Taskforce: recommended further

investigation and research re operation

Broadly 3 Elements of Excuse:

Both at common law and under the QCC, broadly 3 elements:

1. A provocative incident

2. Subjective loss of self control• aspect of suddenness

3. Objective assessment of accused’s reactions against those of an “ordinary person”.

What amounts to provocation?Words?

S 268 - yes At common law see Moffa.

Confirmed in Buttigieg

Wrongful act? Unlawful act? s 268 - wrongful act which must be unlawful (see s

268(3)) and note R. At common law - need not be unlawful.

What is an “insult” (s 268)? see Bedelph: words, signs, acts... need it be wrongful under s 268? Stingel: no.

“any wrongful act or insult”

Actual Loss of self control.

Subjective test. “I saw red”

Note relationship b/w provocation and self defence. (Lee Chun Chuen)

As to nature of passion: see Van den Hoek and Hunter traditionally anger or resentment, but also fear

or panic can cause loss of self control.

Sudden Provocation and Response Consider “contextual suddenness”No time for reflection or to formulate

desire for revenge: Duffy.See Parker - 20 minutes.Re extended periods of dom violence:

R and Hill; cumulative conduct with a final trigger.

CF statutory abrogation of suddenness (eg, in NSW - Morobito and Chhay)

Ordinary Person Objective TestRead SG pp 64-66.Evolution of test from reasonable to ordinary

person: Bedder - impotence not taken into account Then Camplin - Reasonable person shares accused’s

physical characteristics insofar as they affect gravity of provocation to him/her BUT objective power of self control expected to be that of R person of same sex and age as accused. Many subsequent cases undermined objective test.

Then Stingel.

PROVOCATION: STINGEL TWO TIERED TEST (1)

FIRST TIER

ASSESSING THE GRAVITY

OF THE PROVOCATION

(Relevant) personal characteristics or attributes affect gravity.

Therefore the provocation may be assessed to be somewhere along a continuum from:

Trivial to Extremely Grave

Examples of Characteristics re gravity.must be relevant to provocation offeredSG at p 65

Dutton - impotence Moffa - relationship and Italian origin Jabarula v Poore - community aborigines Dincer - ethnic and religious derivation

Stingel at 326: accused’s age, sex, race, physical features,

personal attributes, personal relationships, past history, even mental instability.

THEN....

TAKING provocation of THAT gravity (that is, high degree/very

grave provocation or not very grave/trivial provocation or

somewhere else on the scale) NOW apply the second tier of the

test.

PROVOCATION: STINGEL TWO TIERED TEST (2)

SECOND TIER

APPLYING THE ORDINARY

PERSON OBJECTIVE

TEST

Could PROVOCATION OF THAT GRAVITY cause an ORDINARY PERSON who has NO other characteristic than the accused's age (re immaturity) to have lost self control to the NATURE AND EXTENT (re proportionality - kind and degree of response) that the accused did?

NB: Issue here re response

LEVEL OF SELF CONTROL...What LEVEL of self control does the

ORDINARY PERSON have?The lowest level of self control which falls

within those limits or that range of self control that can be characterised as "ordinary" is required of ALL members of the community: Stingel at 329.

Re application of objective testStingel: “equality before the law” requires that sex and

ethnicity not be taken into account in determining self control.

Consider ethnicity in a case like Dincer where Turkish Muslim stabbed daughter to death (proposed elopement with boyfriend). cf approach in Baraghith: cultural values and

background irrelevant to ord person’s self controlStingel confirmed in Masciantonio except that McHugh J

now dissenter.Stingel under QCC see Buttigieg.

Stingel under QCC: Buttigieg (1993)

the provocative conduct revived argument on her past conduct and the termination

of their marriage and use of insult “spack”

gravity of provocative conduct assessed from viewpoint of particular accused

includes knowledge of past relationship and poss sensitivity to use of “spack”

could or might an ordinary person in the heat of the moment react to that conduct by intentionally strangling her (cf quick blow)?

held reaction fell below the minimum limits of the range of powers of self control

Required Degree of ChanceSee SG at p 66

self-explanatory

Issue here of likelihood of accused’s succumbing to a loss of self-control in response to provocation

s 268 - “as to be likely when done to the ord p…” s 286 - likelihood = probability

s 304 - at CL - whether the provocation “could or might” have induced the ord p to lose self-control. S 304 - could or might = possibility

s 268 = stricter

Proportional Retaliation.s 269 - specific requirement.s 304 common law: see Johnson - not separate

requirement - one of the matters jury may take into account: goes to actual loss of self control by accused; and also relevant to application of objective ord person self

control test to accused - See further Green (below):

• would an ord person do an act of the kind and degree that accused did? OR

• would ord person have been induced to have lost self-control so as to form a murderous intent?

As to whether self control regained...

See Masciantonio: two stages of events ferocious stabbing attack on son-in-law beside car

which continued, despite attempted intervention of onlookers, on footpath.

Question whether accused had regained self control (so no longer acting under provocation) not answered by reference to the ord person, but by reference to the conduct of the accused and to common experience of human affairs (at 69-70).

(OR was the accused still acting under the prov?)

Now: A Trilogy of Cases....

Stingel v R (1990) 171 CLR 312 s 160 Criminal Code (Tas)

Masciantonio v R (1995) 183 CLR 58 Victorian common law

Green v R (1997) 148 ALR 659 s 23 Crimes Act 1900 (NSW)

AND: Unity of Principle….

As noted in Stingel at 320 the decisions have

“tended to interact and to reflect a unity of underlying notions”.

In Green attention drawn to the “basic similarity of principle” between the common law, the Codes and the other statutory provisions on provocation.

Green v R: the factsIs the ordinary p homophobic?

accused (male of 22) and deceased (male of 36)deceased made a homosexual advance

initially non-violent, but subsequently rough and aggressive

accused ferociously battered and stabbed deceased

accused claimed a special sensitivity to sexual interference because of a family history of abuse by father to sisters.

Green v R: the decisions...Trial J: Accused’s sensitivity to matters of

sexual abuse and family history were irrelevant to provocation.

NSW CCA: Dismissed appeal (applying the proviso), but held “sexual abuse factor” relevant to subjective loss of self control.

High Ct: 3:2 appeal allowed; sexual abuse factor relevant to subjective loss of control and the extent of that provocation must then be attributed to the ordinary person.

The Result

4 JJ (Brennan CJ, Toohey, McHugh JJ and Smart J): provocation should have gone to jury.

5 JJ (Trial J, Priestly JA, Ireland J, Gummow and Kirby JJ): murder conviction inevitable; standard of self control not met.

“Just differences of opinion whether evidence

fit to go to jury on provocation”

CCA Dissent

Features of Decision (1)

If there was, there is no longer any doubt: excepting age and maturity, no subjective

factors will affect the power of self-control of the ordinary person in provocation.

Any formulation of the objective test (judicial or statutory) which includes the phrase "ordinary person in the position of the accused" will not be permitted to undermine the uniform, objective standard of self-control adopted in Stingel.

Features of Decision (2)

Objective standard is affected by "contemporary conditions and attitudes”

Green provides a specific example:“...the ‘ordinary person’ in Australian society today is not so homophonic as to respond to a non-violent sexual advance by a homosexual person as to form an intent to kill or to inflict grievous bodily harm.”

Features of Decision (3)

Relevance of manner of accused's response? Is it sufficient to ask whether the ordinary person

could have been induced to have lost self-control as to form a murderous intent? OR Must the provocation be of such a nature that it "could or might cause an ordinary person...to do what the accused did"?

In Green , a "murderous intent focus" saves the accused's excessively frenzied response from being subjected to the objective test.

Green: What it all means…(According to the Majority)

“In the present case, this translates to a person with the minimum powers of self-control of an ordinary person who is subjected to a sexual advance that is aggravated because of the accused's special sensitivity to a history of violence and sexual assault within his family.”

Per McHugh J at 682

Or (Depending on your position)… (According to the Minority)

“...any jury, acting reasonably, could not have failed to be satisfied beyond reasonable doubt that the nature of the conduct of the deceased was insufficient to deprive any hypothetical, ordinary 22-year-old male in the position of the appellant of the power of self-control to the extent that he would have formed an intent to kill or cause grievous bodily harm upon the deceased.

Per Gummow J in Green at 697

Self-Induced Provocation. Where accused provokes victim with a pre-

meditated intention to kill/cause GBH.s 268(4) - excludes this type provocation.s 304 - unclear but probably the same at CL.See

Voukelatos - for above defn of concept.Edwards - blackmailed deceased who responded

with knife attack. Allwood - accused bent on confrontation with

estranged wife - any operative prov self induced

Third Party or Indirect ProvocationWhere prov need not be directed at accused.S 268: see rules there and focus on relationship b/w

accused and person to whom provocation offered.

S 304 common law: eg, see - Scriva (No 2): accused saw his daughter run down and

killed - prov open Terry: prov offered to accused’s sister Deceased’s conduct must occur in presence of

accused: see Quartly even though prov need not be directed at accused, must occur within accused’s sight or hearing - prov not left to jury.