The Provocation Debate

Provocation- common law, criminal defence * Either or both statutory or common law * Possible defence by excuse or exculpation alleging a sudden or temporary loss of control- in response to another’s provocative conduct to justify an acquittal, mitigated sentence or conviction of lesser charge * Can be relevant in a court’s assessment of a defendant’s mens rea, intention or state of mind at the time of the incident * In some cases in UK, Canada and several Australian states, the defence of provocation is available only against a charge of murder- and can reduce to manslaughter * Known as ‘voluntary manslaughter’ * In USA the Model Penal Code substitutes the broader standard of extreme emotional or mental distress for the comparatively narrower standard of provocation * Under USA Sentencing Guidelines for federal courts- ‘if the victim’s wrongful conduct contributed significantly to provoking the offence behaviour, the court may reduce the sentence below the guideline range the reflect the nature and circumstances of the offenceHistory- * Developed in English courts in 16th – 17th century * At that time a conviction of murder carried a death sentence- thus a lesser offence was needed *

At the time it was seen as socially required for a man to respond with controlled violence if ‘his honour or dignity was insulted or threatened’ * It was then considered to be understandable that the violence might be excessive and end in murder * In the 19th century the idea of acceptable violence when insulted began to weaken * The circumstanced were changed to- while such responses may not be ideal, they were a normal reaction resulting from loss of self- control- and thus deserved mitigating circumstances * By the end of the 20th century and beginning of the 21st century the defence of provocation and when it should be applied has caused much controversy * Many put it down to anachronism- goes against social norm that behaviour should be controlled even when angry * Judging whether an individual should be held responsible for their actions depends on an assessment of their culpability (tested against a reasonable person)Controversy- * Especially in UK law- the provoked must have carried out the act immediately after the provocation occurred- known as ‘sudden loss of self control’ * The controversy surrounds the definition of the term ‘immediate’ * This as caused most controversy for women- in R v Ahluwalia 1992 which led to the enactment of a new defence (loss of control)- as she was a battered-wife and waited until her husband was asleep * In 2009 Coroners and Justice Act sexual infidelity was removed as a qualifying form of provocation * But in 2012 it was placed under the third prong of the new defence (Baker & Zhao 2012) R v Clinton 2012 *

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Controversy began in 2009 NZ in the trial of Clayton Weatherston after he killed his girlfriend and was sentenced to life in prison * In response NZ Parliament passed the Crimes (Provocation Repeal) Amendment Bill which abolished the partial defence (8 Dec 2009) * Tasmania was first state to abolish- then Victoria (2005), WA (2008) * ACT and NT amended to exclude non violent homosexual advances in 2004 and 2006 * NSW- law is currently under debate * Nothing has been done in QLDConcerns- * Main arguments against provocation as a defence- * Reasonable people in society are expected to control their behaviour * Creates a culture of blaming the victim * The terms of provocation are subjective * Difficult to enforce since victim is dead * | https://www. google. com. au/url? sa=t&rct=j&q=&esrc=s&source=web&cd=3&ved=0CEMQFjAC&url=https%3A%2F%2Fwww. parliament. nsw. gov. au%2Fprod%2Fparlment%2Fcommittee. sf%2F0%2F61173c421853420aca257b5500838b2e%2F%24FILE%2FPartial%2520defence%2520of%2520provocation_Final%2520report. pdf&ei=Xrr4Ufz6K4nmkAW0poGQDQ&usg=AFQjCNH1cXGJ1B5E0GDDtdlQbMOGzALStA&sig2=PD4XfRmaSN7XCIK2F8elzg/ | Focus Question 1- What is the current legal situation? | Notes| Basic Evaluation| * | | Focus Question 2- How does this compare worldwide? | Notes| Basic Evaluation| * | | Focus Question 3- What are some important/relevant cases & articles? | Notes| Basic Evaluation| * Chamanjot Singh| | Focus Question 4- What is in need of reform and why? | Notes| Basic Evaluation| * NSW- parliamentary Select Committee on the Partial Defence of

Provocation released recommendations for reform of provocation defence * The model of reform retains but restricts the partial defence instead of removing it * Report is result of trial of Chamanjot Singh (convicted of killing his wife in June 2012 * ‘requires delicate balance between interests of abused women’ * The proposed reform relies on ‘response to gross provocation which caused them to have a justifiable sense of being seriously wronger’ * The focus of the restricted defence is on the nature of the conduct as opposed to the defendant’s loss of self-control * Excludes the partial defence being raised in circumstances where defendant incited a response to provide an excuse for resulting in violence| http://theconversation. com/nsw-parliamentary-inquiry-recommends-partial-reform-to-provocation-law-11958 http://www. sbs. com. au/news/article/1708303/Insight-Should-the-provocation-defence-be-abolishe |


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