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What is provocation? Generally, provocation is any wrongful act or insult of a nature likely to deprive an ordinary person of their self-control that results in them exhibiting violent behaviour.
Depending on the facts of the case, courts sometimes consider the defence of provocation in Criminal Law. This is to determine if a person is guilty of murder. Generally, a person raises this defence because they lose control or they felt that their partner "provoked" them for various reasons.
The use of the defence in murder cases has led to debate. People argue that the defence leads to further injustice to the victims. In Australia, Queensland and New South Wales (NSW) allow a partial defence of provocation. This in turn reduces the crime of murder to manslaughter (read the difference between murder and manslaughter below).
The Crimes Act 1900 deals with the laws pertaining to the defence of provocation and the offences of manslaughter and murder. This article discusses matters pertaining to this partial defence.
Singh v The Queen: The Case That Started It All
In 2012, this was a controversial case in NSW. The court convicted Chamanjot Singh of manslaughter by reason of provocation after he slit his wife's throat with a box cutter. He argued that his wife "provoked" him "to kill".
Furthermore, he argued that he lost self-control because of suspicions of infidelity, the victim and her sister's husband making disparaging comments about his mother, and a belief that the relationship was ending resulting in the government deporting him.
Due to the Singh case, authorities examined provocation laws and they made recommendations for its reform. The government passed the Crimes Amendment (Provocation) Bill 2014 which amended provisions on provocation in the Crimes Act 1900. The amendment now includes a requirement that a defendant must have lost their self-control just as an "ordinary person" would have in that situation.
In 2014, the government substantially altered the law concerning the defence of provocation to murder. So, the amendment does not apply to alleged murders before 13 June 2014.
Provocation in New South Wales
In NSW, parties can use "extreme provocation" as a partial defence to a murder charge. If a person facing murder charges was acting in response to extreme provocation, courts will find them guilty of manslaughter rather than murder. It is worthy to remember that the defence of provocation does not exist in relation to assaults or other violent offences.
Under Section 23 of the Crimes Act 1900, parties can prove "extreme provocation" only where:
- Their actions which brought about the deceased's death were a direct result of their provocative conduct, and
- The deceased committed a 'serious indictable offence' towards them, or which affected them, and
- The deceased's actions caused them to lose self-control, and
- The deceased's actions would have caused an ordinary person in their position to lose self-control and kill the deceased, or inflict serious grievous bodily harm upon the deceased.
If these instances are present, the jury must acquit the accused of murder and find the accused guilty of manslaughter instead.
In addition, the provocative conduct of the deceased does not have to occur immediately prior to their death. Thus, if you have suffered a long history of abuse at the hands of the deceased, it may be enough to constitute provocation.
Section 23 also provides that the following situations alone are not enough to constitute "extreme provocation":
- Non-violent sexual advances, or
- Situations where you provoked the deceased's conduct in order to have an excuse to use violence against them.
Non-violent sexual advances include flirting by the deceased or them touching you in a non-violent way.
Factors the Jury Must Consider
Different NSW cases have addressed factors and questions that the jury must consider. Among them include:
1. Was the act that caused the victim's death done in response to the deceased's conduct towards the accused?
Provocation requires a reaction by the accused to the conduct of the deceased (including grossly insulting words or gestures) which occurs in his or her sight or hearing. The provocative incident must be one which directly involves the defendant and the victim, although the defendant may not direct the actual element of provocation intentionally or specifically against the accused. [R v Quartly (1986) 11 NSWLR 332 at 338].
2. Was the provocative conduct a serious indictable offence?
The jury must know that the victim's conduct amounted to a serious indictable offence for the defence to succeed. For example, if the deceased committed sexual assault against you or your child.
3. Did the conduct cause the defendant to lose their self-control?
Case law provides that the loss of self-control may be due to fear, anger or resentment, but must be present at the time of the killing.
4. Could the conduct have caused an ordinary person to lose self-control to the point of intending to murder or inflict grievous bodily harm on the victim?
Cases have provided that we must assume that an "ordinary person" is sober and unaffected by drugs, and of the same age and maturity as the defendant.
The jury must not consider any of the accused's other personal attributes. For instance, the jury does not take into account the accused's depression for the purposes of the ordinary person.
Manslaughter versus Murder
Understanding the partial defence of provocation requires an understanding of the differences between the offences of murder and manslaughter. This is because if the accused raises the defence of provocation validly in charges of murder, they may receive a sentence for manslaughter instead.
If successful, the partial defence of provocation will reduce the charge of murder to manslaughter, which carries lesser penalties. However, unlike a "complete defence" (such as self-defence or duress), it will not completely excuse or acquit the accused of the charges.
The key distinction between murder and manslaughter is intention. If there is an intention to commit murder (or grievous bodily harm), the defendant will receive a charge of murder. Where the killing has been unintentional, the accused will be charged with manslaughter. It is often referred to as unintentional or accidental homicide.
The maximum penalty that courts can impose for murder is life imprisonment, while for manslaughter it is 25 years' imprisonment.
Rationale for the Defence
NSW laws' inclusion of a partial defence of "extreme provocation" was designed to ensure that victims of prolonged family violence could use it as a defence should they kill their abusive spouse.
"The government is satisfied that the bill strikes a careful and appropriate balance between restricting the defence and leaving it available for victims of extreme provocation, including victims of long-term abuse who kill their abuser," said then NSW attorney general, Brad Hazzard, introducing the bill.
The rationale behind the defence is that a person's moral culpability is reduced when they have lost control in response to provocative conduct. A conviction for manslaughter rather than murder is said to be more proportionate to the situation when provocation is involved. Supporters of the defence also argue that it is important to retain a distinction between killing in response to provocation and murder in other circumstances.
In 2014, the defence of provocation was significantly restricted to ensure that it could not be used in situations where the provocation claimed infidelity, or any other reasons similar to the 2012 Singh case. The partial defence was retained in NSW also in response to concerns that it was necessary to protect female victims of long-term domestic violence where it may be impossible to establish the act causing death was done in self-defence.
Reverse Onus for the Defence of Provocation
The partial defence of extreme provocation carries a "reverse onus". This means that the burden of proof shifts to the prosecution to prove beyond reasonable doubt that the accused was not acting under provocation. It is not for the accused to prove that they were acting under provocation.
The Importance of Seeking Legal Advice
You may be facing serious criminal charges and may need legal representation or perhaps you have more queries as to the partial defence discussed.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.