CRIMINAL LAW AND PROCEDURE LWB232

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CRIMINAL LAW AND PROCEDURELWB232

• WEEK 8
• PROVOCATION

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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...

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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.

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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.

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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 Womens Taskforce recommended
  further investigation and research re operation

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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 accuseds reactions
  against those of an ordinary person.

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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
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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.

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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)

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Ordinary Person Objective Test

• Read SG pp 64-66.
• Evolution of test from reasonable to ordinary
  person
• Bedder - impotence not taken into account
• Then Camplin - Reasonable person shares accuseds
  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.

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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

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Examples of Characteristics re gravity.

• must be relevant to provocation offered
• SG at p 65
• Dutton - impotence
• Moffa - relationship and Italian origin
• Jabarula v Poore - community aborigines
• Dincer - ethnic and religious derivation
• Stingel at 326
• accuseds age, sex, race, physical features,
  personal attributes, personal relationships, past
  history, even mental instability.

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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.

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PROVOCATION STINGEL TWO TIERED TEST (2)

• 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?

• SECOND TIER
• APPLYING THE ORDINARY PERSON OBJECTIVE TEST

NB Issue here re response
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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.

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Re application of objective test

• Stingel 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 persons self
  control
• Stingel confirmed in Masciantonio except that
  McHugh J now dissenter.
• Stingel under QCC see Buttigieg.

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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

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Required Degree of Chance

• See SG at p 66
• self-explanatory
• Issue here of likelihood of accuseds 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

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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?

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As to whether self control regained...
(OR was the accused still acting under the prov?)

• 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).

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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)

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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.

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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.

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Green v R the decisions...

• Trial J Accuseds 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 32 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.

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The Result
CCA Dissent

• 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

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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.

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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.

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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.

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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

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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

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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

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Third Party or Indirect Provocation

• Where 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 accuseds sister
• Deceaseds conduct must occur in presence of
  accused see Quartly even though prov need not be
  directed at accused, must occur within accuseds
  sight or hearing - prov not left to jury.