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PART V
THE LAW OF PROVOCATION IN OTHER COMMON LAW JURISDICTIONS
Introduction
5.1 The first six papers appended to this consultation paper[1] emanate from Australia (including a section on the relevant law of India), Canada, Ireland, New Zealand, Scotland and South Africa. Each includes an account of the current law of provocation in the jurisdiction to which the paper relates. (Another appendix contains some relevant statutory provisions from those countries, from the Model Penal Code of the USA, and some versions suggested either by Law Reform bodies or academics). In this Part, first we identify several general themes concerning provocation in these jurisdictions. Second, we provide a synopsis of each of the papers, thereby providing a brief outline of the law of provocation in each country.
Existence of the partial defence
5.2 Amongst the fourteen jurisdictions considered,[2] provocation is a partial defence to murder in twelve. There are two exceptions. In South Africa, provocation is a complete defence where it establishes that an accused lacked criminal capacity. By contrast, in Tasmania the partial defence of provocation has recently been abolished.[3]
General themes
Provocative conduct
5.3 There is considerable variation amongst the jurisdictions as to what conduct is capable of constituting "provocation". In Scotland only violent conduct and infidelity or confessions of infidelity are capable of constituting "provocation".[4] In Canada there must be a "wrongful act or insult".[5] In New South Wales words and gestures are capable of constituting "provocation" but only if they are "grossly insulting".[6] By contrast in India and New Zealand there is no restriction on what is capable of constituting "provocation".
5.4 Amongst the fourteen jurisdictions considered, there are a range of approaches to the standard of self-control against which the accused is measured:Standard of self-control
(1) where the accused's response is judged by reference to the objective standard of the reasonable or ordinary person who shares the accused's characteristics of sex and age but no other (New Zealand and all Australian States and Territories, save Tasmania);
(2) reasonable or ordinary person tests in which the reasonable or ordinary person is clothed with certain characteristics of the accused (characteristics which give the provocative conduct special significance as in Canada and characteristics of ethnic, cultural or social background as in India); and
5.5 The position in Scotland is unclear. The accused is held to the standard of self-control of the ordinary man, but it is unclear what characteristics of the accused are capable of being attributed to the "reasonable man".[7](3) subjective tests in which the finders of fact must assess whether there is evidence that the accused, having regard to his or her characteristics, might have lost control in response to the provocation (Ireland and South Africa).
Cumulative provocation and "slow-burn" responses
5.6 The jurisdictions vary both in the extent to which they recognise cumulative provocation (where evidence of provocation over time is considered relevant) and in the extent to which they require that the response to the provocative conduct must be sudden.5.7 A number of jurisdictions accept that evidence of cumulative provocation is capable of founding the defence (New South Wales, Australian Capital Territory, India and New Zealand). Some appear to be moving towards this position (Canada, Ireland), while other jurisdictions adhere to the requirement that the provocation must have occurred suddenly in the sense of taking the accused by surprise (South Australia, Victoria, Western Australia, Queensland and Scotland).
5.8 Several jurisdictions require the response to provocation to be sudden or immediate (Northern Territory, Ireland, Scotland), but this is no longer a requirement in others (New South Wales, Australian Capital Territory, South Australia, Victoria, India).
Reform agenda
5.9 Many jurisdictions are conscious of the problems posed by the partial defence of provocation and, in recent years, a number law reform bodies have addressed the issue.[8] The New South Wales Law Reform Commission has recommended replacing the objective standard of self-control with a subjective test coupled with a standard based on community standards of blameworthiness. By contrast, in Tasmania, the defence of provocation has been abolished.[9] The New Zealand Law Commission has recommended abolition of the partial defence of provocation.[10] Consultation / discussion papers have very recently been published both by The Law Reform Commission of Ireland,[11] and the Victorian Law Reform Commission.[12]
Australia
5.10 In Queensland, South Australia and Victoria, the law of provocation is governed by the Australian common law.[13] By contrast, the Australian Capital Territory, Northern Territory, New South Wales and Western Australia have statutory provisions governing the defence. This outline focuses on the law of provocation in New South Wales, which possesses what has been described as the "most progressive" statutory formulation of the partial defence.[14] In describing the law of New South Wales, we will at the same time summarise the common law. We will then provide a brief summary of significant features of the partial defence in the other jurisdictions.
New South Wales statutory provisions and the common law of Australia
5.11 The law of provocation in New South Wales is governed by Section 23 of the Crimes Act 1900 (NSW), as amended.[15]5.12 There is no mandatory sentence for murder in New South Wales. Life imprisonment is the maximum penalty, but a lesser penalty may be imposed.[16]
5.13 At common law, the provocation by the deceased must have occurred suddenly and taken the accused by surprise.[17] By contrast, the 1900 Act provides that conduct can amount to provocation if it occurred "immediately before the act or omission causing death or at any previous time".[18] Provocative conduct can therefore include cumulative instances of, for example, domestic violence.[19]Provocative conduct
5.14 Section 23(2)(a) of the 1900 Act incorporates the common law rule that the provocation need not be directed at the accused.[20] It states that the relevant conduct can be "towards or affecting the accused".
5.15 In general, for the accused to rely on the defence of provocation at common law, the deceased must have been the person provoking the accused.[21] There are four exceptions:[22]
(1) the accused was honestly (perhaps reasonably) mistaken that the victim's conduct was directed at him or her;
(2) the accused accidentally killed an innocent bystander instead of the provoker;
(3) the accused killed an innocent bystander who was intervening to protect the provoker from the accused; and
5.16 Section 23 of the 1900 Act reflects the common law rule by, throughout the section, referring to the relevant provocative conduct as "conduct of the deceased", but no reference is made to the four common law exceptions. The New South Wales Law Reform Commission has recommended amending section 23 so as to recognise the first three exceptions.[23](4) the deceased was closely related or physically proximate to the provoker.
5.17 There is a common law rule against "hearsay provocation".[24] In other words the accused must have directly experienced the provocation. The New South Wales Law Reform Commission has recommended that this rule should be abolished and that the only relevant issue was whether an ordinary person could have lost self-control.[25]
5.18 At common law, words can constitute provocation but only if they are of an extreme and exceptional character.[26] Section 23(2)(a) of the 1900 Act reflects the common law by including "grossly insulting words or gestures" within the possible provocative conduct of the deceased.[27]
5.19 At common law, an accused cannot rely on the partial defence if he or she induced the provocation.[28] This would also appear to be the position under section 23 of the 1900 Act, although there is no decided case on this issue.[29] The New South Wales Law Reform Commission has recommended that section 23 of the 1900 Act should be amended to state that the defence is unavailable where the accused has provoked another with a premeditated intention to kill or cause serious bodily harm in response to any retaliation.[30]
5.20 It is unclear whether the common law requires that the deceased's conduct must have been unlawful.[31] Section 23 of the 1900 Act is silent on the issue. The New South Wales Law Reform Commission has recommended that, as a matter of law there should be no requirement that the provocative conduct must have been unlawful.[32]
5.21 Both the common law and section 23(2)(a) of the 1900 Act require that, for the partial defence to succeed, the provocation must have actually caused the accused to lose self-control.[33]Actual loss of self-control
5.22 Although the courts originally defined loss of self-control as a sudden event, in New South Wales there has been judicial acceptance that the response to provocation may be a "slow-burn" involving anger, despair and fear.[34]
5.23 In deciding whether the accused in fact lost self-control, the jury are required to consider all the personal characteristics of the accused, including ethnic origin, temperament and whether he or she was intoxicated. [35]
5.24 At common law and under section 23(2)(c), the accused may have intended to kill or inflict grievous bodily harm and still succeed with a provocation defence.[36] As stated in Chhay,[37] courts distinguish between such intention arising from provocation and intention arising from hatred, resentment and revenge.[38]
5.25 Section 23(2)(b) of the 1900 Act mirrors the common law concerning the standard of self-control. This section provides that the:The "ordinary person" test
5.26 The "ordinary person" test is objective, but also has a subjective component. This distinction was made in Stingel.[39] The High Court of Australia held that, in certain circumstances, the jury could attribute certain personal characteristics of the accused to the ordinary person. When considering the gravity of the provocation, the ordinary person will bear all the accused's characteristics which are relevant to the provocation. This may include the accused's "age, sex, ethnicity, physical features, personal attributes, mental states, personal relationships and past history."[40]… 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 … .
5.27 When considering the power of self-control expected of an ordinary person, the ordinary person will only possess the accused's age. The High Court of Australia has not included other characteristics in the standard of self-control test. For example, in Masciantonio[41] the High Court of Australia rejected the inclusion of ethnicity.
5.28 The common law no longer insists that the accused must have killed very soon after the last provocative act/words or immediately upon losing self-control.[42] This is reflected in section 23(3)(b) of the 1900 Act.Response to the provocation
5.29 Likewise, there is now no rule at common law that the mode of retaliation must bear a reasonable relationship to the provocation.[43] This is reflected in section 23(3)(a) of the 1900 Act.
5.30 Further, it is questionable whether, at common law, the mode of killing is relevant to establishing the provocation defence. In Masciantonio,[44] the High Court of Australia stated that the question of whether the ordinary person would use the means adopted by the accused is less relevant than the question of whether the ordinary person would form an intent to kill or do grievous bodily harm.[45] Section 23 of the 1900 Act has removed the "moral relevance of the manner of the accused's physical response to the provocation."[46]
5.31 At common law the burden of proof lies on the prosecution to negate provocation beyond a reasonable doubt.[47] Section 23(4) of the 1900 Act expressly adopts this rule.Procedure and role of the jury
5.32 The jury can consider the partial defence only if the trial judge decides, on a view of the evidence most favourable to the accused, that the jury may not be satisfied beyond a reasonable doubt that the killing was unprovoked.[48]
Provocation in other Australian States and Territories
5.33 The Tasmanian Parliament abolished provocation as a defence in May 2003.[49] Tasmania does not have a mandatory life sentence for murder so that courts can consider provocation as a mitigating factor at the sentencing stage.[50]Tasmania
5.34 In South Australia and Victoria,[51] provocation is governed by the common law as described above.South Australia and Victoria
5.35 The law of provocation is governed by section 304 of the Queensland Criminal Code. It has been held, however, that the section incorporates the common law.[52]Queensland
5.36 Section 281 of the Criminal Code (WA) states that:Western Australia
5.37 This section does not mention the ordinary person test. However, it has been held that the definition of provocation contained in section 245 of the Criminal Code (WA) applies to cases of homicide.[54] The first paragraph of section 245 mirrors the common law "ordinary person" test.When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute wilful murder or murder, does the act which causes death in the heat of passion caused by sudden provocation, and before there is time for his passion to cool, he is guilty of manslaughter only.[53]
5.38 Accordingly, both Western Australia and Queensland appear to reflect the common law. In particular, both jurisdictions require an objective standard of self-control. In contrast to the position in New South Wales, moreover, both jurisdictions appear to require provocation to be sudden.
5.39 In the Australian Capital Territory, the relevant statutory provision is section 13 of the Crimes Act 1900 (ACT). This provision follows the provision in New South Wales except that section 13(2)(b) states that:Australian Capital Territory
5.40 Under section 23(2)(b) of the 1900 Act the relevant intent of the accused is that he or she intended to kill or inflict grievous bodily harm.[T]he 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: (i) as to have formed an intent to kill the deceased; or (ii) as to be recklessly indifferent to the probability of causing the deceased's death … .[55]
5.41 In the Northern Territory, section 34(2) of the Criminal Code (NT) provides that:Northern Territory
(2) When a person who has unlawfully killed another under circumstances that, but for this subsection, would have constituted murder, did the act that caused death because of provocation and to the person who gave him that provocation, he is excused from criminal responsibility for murder and is guilty of manslaughter only provided -
(a) he had not incited the provocation;
(b) he was deprived by the provocation of the power of self-control;
(c) he acted on the sudden and before there was time for his passion to cool; and
5.42 Accordingly, this section follows a similar line to the New South Wales provision, save that it requires the accused to act "on the sudden".(d) an ordinary person similarly circumstanced would have acted in the same or a similar way.
Proposals for reform in Australia
5.43 The partial defence has been criticised for being biased against female defendants.[56] Australian courts have increasingly attempted to redress this bias by, for example:Provocation and gender
(1) removing the requirement of suddenness and a triggering incident (although not all jurisdictions are uniform in this respect);
(2) recognising cumulative provocation; and
5.44 Both the Victorian Law Reform Commission and the New South Wales Law Reform Commission cite empirical studies which suggest that the defence is no longer gender biased.[57](3) admitting expert evidence of "battered women syndrome".
5.45 However, the Model Criminal Code Officers Committee disagreed, instead recommending the abolition of the defence.[58] The Committee states that battered women syndrome:
… illustrates the unsatisfactory nature of provocation as presently formulated. The defendant, who in such cases often kills her partner after years of abuse, may adopt a method of killing that is undoubtedly premeditated, but is actuated by no less psychological stress and trauma than persons who kill in response to an immediate provocation.[59]
No State or Territory has enacted the Model Criminal Code.
5.46 When the partial defence of provocation was abolished in Tasmania one of the reasons offered was that the defence was gender biased.[60]
5.47 The New South Wales Law Reform Commission considered replacing the ordinary person test for provocation. It rejected a number of proposed reforms including:[61]Reform of the standard of control test
(1) a purely subjective test – this might prevent a jury evaluating the blameworthiness of the accused and would be unduly lenient;
(2) expanding the characteristics of the accused which can be considered by the jury to include his or her sex and ethnicity. The Commission was anxious about applying different standards of criminal behaviour to different groups by measuring blameworthiness according to the accused's sex or, in particular, ethnicity. The Commission thought the result would be speculation and ill-informed stereotyping; and
5.48 Instead, the New South Wales Law Reform Commission recommended replacing the ordinary person test with a subjective test combined with community standards of blameworthiness.[62] The proposed formulation provides:(3) considering the accused's sex and ethnicity in assessing the likely response to provocation of the ordinary person after losing self-control. The Commission felt this involved making artificial distinctions and was unworkable in practice.
5.49 The Commission noted concerns that this test left the determination of the provocation defence to the discretion of the jury. In turn, it conceded that there was a risk that juries may make decisions on the basis of prejudice or ignorance.[64] However, the Commission regarded this as a risk inherent in the jury system.[65] On the other hand, it argued that the new approach made the test clearer, less complicated and focused on the important question – namely: whether murder should be reduced to manslaughter.[66][T]he accused, taking into account all of his or her characteristics and circumstances, should be excused for having so far lost self-control as to have formed an intent to kill or to inflict grievous bodily harm or to have acted with reckless indifference to human life as to warrant the reduction of murder to manslaughter.[63]
5.50 In order to address particular concerns about intoxicated defendants, the Commission proposed a specific provision that would require self-induced intoxication to be disregarded in assessing provocation.[67]
Canada
The Criminal Code provision relating to provocation and its interpretation
5.51 Section 232 of the Criminal Code makes provision for a partial defence of provocation. This provision has been subject to only minor amendments since first enacted in 1892.[68]5.52 There are four elements to the provocation defence:
(1) there must have been a wrongful act or insult;
(2) the act or insult must have been such that an ordinary person would be deprived of his power of self-control;
(3) the defendant must actually have been provoked by the act or insult; and
(4) the wrongful act or insult and the defendant's response to it must have been sudden.[69]
There is therefore no proportionality requirement associated with the defence. The requirement is that an ordinary person would have been deprived of his self-control, not that the ordinary person would have reacted in the same manner as the defendant.
5.53 The provocation must consist of a "wrongful act or insult".[70] The phrase has consistently been interpreted in a broad manner. [71]Provocative conduct
5.54 To be wrongful, an act need not be prohibited by law. Conversely, an act cannot amount to provocation if the deceased was exercising a legal right that he or she was entitled to exercise.[72]
5.55 The term "insult" includes any form of contemptuous, scornful, offensive or wounding speech.[73]
5.56 The Canadian courts have modified their approach to the "ordinary person" test. Initially, the courts adopted a strict approach which allowed no consideration of the particular characteristics and circumstances of the defendant.An ordinary person would be deprived of the power of self-control by that act or insult[74]
5.57 Influenced by developments in England, the ordinary person test was expanded by the Supreme Court of Canada in Hill[75] to take into account "any general characteristics relevant to the provocation in question".[76] It was emphasised that factors such as intoxication and temper were not to be taken into account.
5.58 In 1996, the Court expanded on the earlier ruling and held that the ordinary person "must be of the same age, and sex, and share with the accused such other factors as would give the act or insult in question a special significance and have experienced the same series of acts or insults as those experienced by the accused".[77]
5.59 The courts have consistently interpreted the subjective element of the defence in a similarly broad manner. The trier of fact is required to take into account all subjective factors in deciding whether the defendant was actually provoked by the wrongful act or insult. This includes, for example, any evidence of intoxication, prior relationship, mental condition and temperament.The defendant was actually provoked by the act or insult[78]
5.60 Traditionally, Canadian courts have held that the suddenness requirement of this defence will not be satisfied if the defendant had prior knowledge of the act or insult said to constitute the provocation.[80]The wrongful act or insult and the defendant's response to it were both sudden[79]
5.61 Provocation cannot consist of a predictable response by V to D's own unlawful conduct. However, the strictness of this requirement has, arguably, been relaxed in recent years. Most notably, in Thibert,[81] the Supreme Court concluded that the deceased's comment and actions just before the defendant shot him were sufficient to create an air of reality to the defence even though it was the defendant who instigated the confrontation with the deceased and he already knew that the deceased was having a relationship with his wife.[82]
Criticism of the defence of provocation
5.62 Five principle criticisms have been articulated:[83]
(1) the defence is justified as a concession to human frailty on the basis that all individuals are susceptible to uncontrollable bursts of anger and passion that may result in violence to another. It is argued, however, that the defence also condones and legitimises the use of violence by some, notably heterosexual males, to gain and retain control over others, particularly women, gay men and marginalised persons;
(2) the defence blames the deceased for the inability of the defendant to exercise self-control. It diminishes the lives of the victims of such violence, suggesting that some murders are less serious than others;
(3) the defence privileges the emotion of anger over other emotions such as compassion, empathy, fear or despair;
(4) the wrongful act or insult requirement is interpreted in an excessively broad manner and therefore encourages and promotes violence against disadvantaged groups;
(5) the subjectivisation of the ordinary person requirement in Canada has significantly lowered the threshold of self-control that is demanded of all members of society to the detriment of women, gay men and members of minority ethnic groups. In part this is because of a failure by the court to distinguish carefully between the use of individual characteristics and circumstances in order to put the gravity of the insult into context, and their use to determine the level of self-control of the defendant.
Proposals for reform[84]
5.63 There is general agreement in Canada that changes should be made to the law on provocation but no general consensus on the type of reform that should be pursued. The five main options for reform are:
(1) abolition of the defence contingent on the simultaneous abolition of the mandatory life sentence for murder;
(2) abolition of the defence except in cases of excessive force used in self-defence;
(3) abolition of the defence in cases of spousal homicide only;
(4) reform the elements of the defence;
(5) reform the elements of the defence and extend it to other offences.
5.64 Leading feminist advocacy groups support this option. They are sceptical about ever creating a truly non-discriminatory defence. They feel that a conviction for murder is appropriate given that the defendant had the intent for murder.Option 1: Abolish provocation defence and mandatory life sentence
5.65 The mandatory life sentence should also be abolished so that sentencing discretion can exist for disadvantaged groups. However, feminist groups also advocate sentencing guidelines to ensure decisions on sentence reflect modern non-discriminatory principles.
5.66 This option would abolish the defence in circumstances where a male defendant kills his partner in a rage provoked by a non-violent act or insult. At the same time it would allow a defence of provocation where battered women kill abusive partners in circumstances where excessive force is used in self-defence.Option 2: Abolish the defence except for cases where excessive force is used in self-defence
5.67 On the other hand, there is concern about the complexity of this defence, that it would not cover all circumstances where battered women kill and that it might lead to relatively more convictions for manslaughter (pleading provocation) where defendants could otherwise be acquitted (pleading self-defence).
5.68 This option directly addresses the most contentious use of the defence. However, this option has been criticised for ignoring other objectionable uses of the defence, for example, homophobic or racist attacks and for failing to provide a partial defence for battered women.Option 3: Abolish the defence for spousal homicides only
5.69 Three aspects of the defence have received the most attention:Option 4: Reforming the elements of the defence
(1) the wrongful act or insult element;
(2) the ordinary person test; and
(3) the suddenness requirement in relation to the defendant's reaction.
These aspects are dealt with in the following paragraphs.
5.70 One proposal is to replace the "wrongful act or insult" element with an "unlawful act". This would mean that neither mere insults nor lawful acts could activate the provocation defence. For some, this proposal is too restrictive. Some would prefer general phraseology such as "act or statement", while others propose that certain acts and insults should be deemed incapable in law of constituting provocation. Examples of such acts are infidelity and non-violent homosexual advances.5.71 Several commentators advocate reforming the ordinary person test by codifying a mixed subjective-objective test. This could include an explicit direction that individual characteristics should be considered only insofar as they relate to the gravity of the provocation as opposed to the degree of self-control. Feminist scholars prefer incorporating non-discriminatory principles directly into the definition of the ordinary person. For example, the ordinary person would be defined as a person who was not sexist, homophobic or racist. A jury would not be able to take into account the accused's sexism, homophobia and racism even when assessing the gravity of the provocation.
5.72 Removing the requirement that the defendant acted "on the sudden" has been proposed. This might make the defence more available to abused persons, particularly women. Feminist scholars are opposed to this proposal, however, preferring reform of the law of self-defence.
5.73 The intent of this proposal is to more fully acknowledge and express compassion for human weakness. Feminist legal scholars oppose this option, believing that it would simply aggravate the disadvantaged position of women and marginalised groups.Option 5: Reforming the elements of the defence and extending it to a wider number of offences
India
5.74 English lawyers devised the Indian Penal Code 1860 as an idealised version of the contemporary criminal law of England.[85] The provocation defence is contained in exception 1 to section 300 of the Code. It provides that:
Culpable homicide is not murder if the offender while deprived of the power of self-control by grave and sudden provocation causes the death of the person who gave the provocation or causes the death of another person by mistake or accident.
The above exception is subject to the following provisos:
that the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person;
that the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant;
that the provocation is not given by anything done in the lawful exercise of the right of private defence.
Provocative conduct
5.75 The Indian Supreme Court has taken a broad view of the suddenness requirement. In Nanavati v State,[86] Subba Rao J stated:
The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation.[87]
This means that so long as the accused killed while lacking self-control, the lack of self-control can be evidence of provocation even though it did not occur immediately following the provocative conduct.
5.76 The Supreme Court also accepts the concept of cumulative provocation. Again, in Nanavati v State,[88] Subba Rao J stated:
5.77 The Code does not require the provocation to be directed towards the accused.[90] Nor does it require the provocative conduct to have emanated from the deceased.[91] Thus, the defence is available even if the accused by mistake or accident killed a person other than the provoker. Also, words alone are sufficient to found provocation.[92]The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence.[89]
5.78 Self-induced provocation is specifically precluded from constituting provocation under the Code.[93] However, the Karnataka High Court has allowed defendants to plead provocation in cases where the defendant had acted in such a way that risked them being provoked, as opposed to deliberately seeking the provocation as an excuse for killing.[94]
5.79 Lawful conduct is capable of constituting provocation. The final two provisos of exception 1 of section 300, however, provide that provocation cannot be pleaded in two circumstances concerning a lawful exercise of a power or right – the lawful exercise of the powers of a public servant and the lawful exercise of the right of private defence.
Actual loss of self-control
5.80 The Court of Criminal Appeal of Ceylon (now Sri Lanka) suggested that the required loss of self-control must occur as "violent anger" or "violent passion".[95]
The reasonable person test
5.81 Indian courts have avoided a purely objective approach when applying the reasonable person test. Yeo states:
When the Indian courts first began applying the concept found in the English law, they realised that a purely objective test would be inoperable and would create injustice if applied to a multi-cultural, multi-religious and multi-class structured society like the one in India.[96]
Accordingly, in Nanavati v State,[97] Subba Rao J stated:
5.82 India distinguishes the issues of the gravity of the provocation on the one hand and the standard of self-control of the reasonable person on the other. In order to assess the gravity of the provocation, the Indian courts have recognised that almost all relevant characteristics of the accused can be taken into account, provided that the provocative conduct was directed to that characteristic.[99] There are dicta, however, which suggest that certain antisocial characteristics may be excluded.[100] In order to assess whether the accused has exercised the appropriate degree of self-control, the Indian courts have expounded a single standard of the reasonable person. However, within this standard, courts have determined that the accused's age (in the sense of youthful immaturity) is a relevant characteristic but not his or her sex. More importantly, the courts have recognised that an accused's ethnic, cultural or social background is capable of being taken into account. The level of self-control contemplated is that of a whole class of normal people of a particular ethnic, cultural or social group.[101]The test of "grave and sudden" provocation is whether a reasonable man, belonging to the same class of society to which the accused belongs, and placed in the situation in which the accused was placed, would be so provoked as to lose his self-control.[98]
5.83 Yeo argues that the advantage of the Indian law is that it appreciates that the accused's reaction to the provocation is not solely the result of the provocation being an affront to his or her ethnic or cultural values but that it is also "the result of her or his emotional and psychological disposition moulded by those values."[102] However, Yeo also notes that this kind of approach might only work in India where "a multitude of communities continue to be rigidly separated from one another by caste, race, religion and socio-economic conditions."[103] In contrast, he argues ethnic groups in countries like Australia or England have "undergone different degrees of assimilation into their host country."[104]
Response to provocation
5.84 There is no rule that requires the retaliation of the accused to be reasonable.[105] But the Indian courts have required that the manner in which the accused reacted was one which might also have been adopted by a reasonable person in the position of the accused.[106]
Ireland
Outline of law of provocation in Ireland
5.85 In Ireland, provocation is a partial defence to murder. Until 1978, Irish law on provocation shared a history with English law. From 1978, it developed a contrasting, subjective approach.[107]
5.86 To establish the provocation defence, the accused must establish that he or she suffered a sudden and complete loss of control and acted in the heat of passion.[108]Loss of self-control
5.87 In general, the partial defence requires that the provoked killing was carried out in hot blood.[109]Immediacy requirement
5.88 However, the courts have increasingly been prepared to admit evidence of provocative acts over time together with expert testimony of "battered women syndrome" or post-traumatic stress disorder.[110] The courts have, however, not yet specifically recognised the concept of cumulative provocation.[111]
5.89 Until 1978, Ireland had an objective test for self-control. In other words, juries would ask themselves whether the accused exercised the standard of self-control to be expected of a reasonable person.Standard of self-control
5.90 However, in People (DPP) v MacEoin,[112] the Court of Criminal Appeal adopted a new test. Kenny J described this new test as follows:
5.91 It is unclear whether the proportionality component of this test is an objective element. There is, however, authority to suggest that the question is merely a factor to be considered in judging the credibility of the accused's testimony that he or she was actually provoked.[114][T]he trial judge at the close of the evidence should rule on whether there is any evidence of provocation which, having regard to the accused's temperament, character and circumstances, might have caused him to lose control of himself at the time of the wrongful act and whether the provocation bears a reasonable relation to the amount of force used by the accused.[113]
5.92 The Court of Criminal Appeal identified problems with this subjective approach in People (DPP) v Davis.[115] It noted that changes in society suggest that the provocation defence may have to be circumscribed, for otherwise accused persons might successfully plead provocation in cases where the accused's behaviour is socially repugnant. A purely subjective test would allow, for example, the accused to plead provocation in a case of "road rage". The Court concluded that society expects minimal standards of self-control from its members, but did not explain how these standards should be determined.[116]
5.93 The defence does not arise automatically. The accused must be able to show that provocation is a live issue. Before the issue is put to the jury, the trial judge must determine that there is sufficient evidence for a reasonable jury to conclude that all the elements of the defence are present.[117]Raising the defence
Proposals for reform in Ireland
5.94 The Law Reform Commission of Ireland has, very recently, published their consultation paper "Homicide: The Plea of Provocation".[118] In particular, this paper addresses:
(1) the concerns raised in People (DPP) v Davis,[119] namely that the current law does not require the jury to consider whether the accused fell short of the standard of self-control to be expected of an ordinary person; and
5.95 The Law Reform Commission proposes retaining provocation as a partial defence, but in an amended form. The proposed amended form is designed to reflect the current law in Canada, Australia and New Zealand. It would include a two-part test. First, the jury would consider whether the accused was provoked (the "narrative" issue). In this query, all characteristics of the accused would be relevant. Second, the jury would consider whether, judged by community standards of self-control, the accused ought to have acted as he did (the "normative" issue). The amended form would also remove the immediacy requirement through provisions along the lines of those in New South Wales and the Australian Capital Territory.[120](2) the question of cumulative provocation, to take account of cases in which the accused is provoked by ongoing domestic violence – cases that at the moment would fail the immediacy requirement.
New Zealand
The Crimes Act 1961
5.96 Section 169(2) of the Crimes Act 1961 provides that:
Anything done or said may be provocation if–
(a) In the circumstances of the case it was sufficient to deprive a person having the power of self-control of an ordinary person, but otherwise having the characteristics of the offender, of the power of self-control; and
(b) It did in fact deprive the offender of the power of self-control and thereby induced him to commit the act of homicide.
5.97 The extent to which "characteristics" of the accused are considered for the purposes of section 169(2)(a) has been a source of ongoing controversy.[121] Recent decisions of the New Zealand Court of Appeal have distinguished between the accused's sensitivity or susceptibility to provocation (the gravity question) and his or her power of self-control (the standard of self-control question).[122] The accused's characteristics are relevant to the former question, but not the latter.[123]Standard of self-control
5.98 When considering the gravity question, the New Zealand courts have taken a wide range of individual characteristics into account including:
(1) battered woman syndrome;[124]
(2) post traumatic stress;[125] and
5.99 There is growing unrest concerning the interpretation of section 169(2)(a). McGregor, an earlier New Zealand Court of Appeal decision (1962) had suggested that the self-control exercised by the accused should be tested against the self-control of an ordinary person who possessed at least certain personal characteristics of the accused.[127] The dissenting judgments in Rongonui[128] expressed sympathy for this position. In Makoare,[129] the New Zealand Court of Appeal was encouraged to revisit the issue in view of the decision of the House of Lords in Smith (Morgan).[130] The Court of Appeal, while unanimously calling for statutory reform, refused to overturn its recent decisions pending, amongst other things, a report of New Zealand's Law Commission.(3) rape trauma syndrome.[126]
5.100 As a general rule, during the period between the provocation and the killing, the accused must have remained in a "continuous state of hot blood" or "remained in a state of uncontrolled anger".[131]Proximity between provocation and response
5.101 However, there is an exception to this rule. Courts have accepted that the accused can raise the partial defence even when there was a time lapse between the provocation and the killing so long as the victim's original provocative conduct created smouldering resentment in the accused and subsequent events revived that earlier provocation.[132]
5.102 Provocation is a question for the jury. However, the trial judge can remove this question from them if there:Role of the jury
… is insufficient proximity in point of time between the alleged provocation and the homicide, such that there is no ground for holding that the accused acted in the heat of passion and before there was time for the passion to cool.[133]
Proposals for reform
5.103 The New Zealand Law Commission considered provocation in a report published in 2001.[134] It considered arguments for and against retaining provocation as a partial defence for murder. The arguments for retaining the defence were:[135]
(1) killing under provocation is less culpable than other intentional killing and should not be stigmatised as murder in the same way as other intentional killing; and
5.104 The arguments for abolishing the defence were:[136](2) where there is evidence of provocation, the jury should have a role in determining the level of the accused's culpability.
(1) provocation is a historical anomaly that is unnecessary once the mandatory life sentence for murder is abolished;[137]
(2) treating intentional killings differently confuses lay people, particularly relatives or friends of the victim;
(3) the judiciary has criticised provocation as incomprehensible;
(4) the current law on provocation risks being applied unevenly by judges and juries;
(5) provocation is gender biased;
(6) provocation can be more easily dealt with during sentencing; and
5.105 The New Zealand Law Commission advocated abolishing the partial defence.[138] This echoed the recommendation of the New Zealand Criminal Law Reform Committee in 1976 which also recommended abolition so long as the mandatory life sentence was also abolished.[139](7) the stigma argument is overstated.
5.106 The Sentencing Act 2002 replaced the mandatory life sentence for murder with a maximum life sentence, although there is a strong presumption in favour of imposing the maximum sentence.
Scotland
Effects of the defence
5.107 In Scotland, provocation is a partial defence to murder. A successful defence will lead to the accused being found guilty of "culpable homicide" rather than murder.[140]
5.108 The provocative conduct must consist of either violence and/or infidelity.[141]Provocative conduct
5.109 Originally, provocation could be pleaded only in cases of infidelity if the accused caught his or her spouse in the act of adultery.[142] This has since been extended to include:
(1) confessions of adultery by the deceased to the accused, [143]provided that the confession of infidelity was clear and unequivocal and "accepted as such by the [accused]",[144] and
5.110 In other contexts, words alone are unlikely to be provocative.[146] The same is true of a non-violent homosexual advance.[147](2) relationships other than marriage "of such a character that fidelity, as in marriage, [was] expected on both sides".[145]
5.111 To establish provocation, the accused must have lost his or her self-control and been provoked into killing as an immediate response to the provocation.[148] This position precludes juries from considering evidence of cumulative provocation.[149]Immediate loss of self-control
5.112 Since Drury v HM Advocate,[150] the jury must consider whether the "ordinary man" would have reacted as the accused did in response to such provocation.[151] When making this analysis, the jury may give the ordinary person the accused's age and sex.[152]Standard of self-control
5.113 There is still no authority on whether other characteristics borne by the accused are to be considered relevant to an assessment of self-control to be expected of the ordinary man.[153]
5.114 Prior to Drury v HM Advocate, the accused's response to violent provocation had to be in proportion to the provocative act,[154] save that there was no such requirement in cases involving infidelity. It is unclear whether following Drury the proportionality test remains as a separate element of the provocation defence in cases where the provocation consists of violent conduct.[155]Proportionality
South Africa
5.115 The starting point for discussion in South African law is Roman and Roman-Dutch law. Neither Roman nor Roman-Dutch law excused criminal conduct committed by a person in a state of anger, jealousy or for any other emotional reason. They were only factors to be considered in mitigation of sentence.5.116 The defence of provocation was introduced into South African law by section 141 of the old Transkeian Penal Code of 1886.[156] In section 141, 'provocation' is defined as that which is "sufficient to deprive any ordinary person of the power of self-control". This set out an objective assessment of provocation, the test being whether a reasonable man would have lost his or her self-control.
5.117 In 1917 the mandatory death penalty for murder was introduced.[157] This remained in force until June 1995 when the Constitutional Court in S v Makwanya and another declared the death penalty unconstitutional.[158] South African law might have followed the approach of Roman and Roman-Dutch law had it not been for the introduction of the death penalty for murder. The mandatory death penalty led the South African courts to adopt a different and more lenient approach.
5.118 In 1924 the Appellate Division in R v Buthelezi[159] held that section 141 of the 1886 Code correctly expressed South African law on provocation. In order, however, to dilute the effect of the 1917 Act, the courts interpreted section 141 so as to recognise a type of partial excuse situation, where, even if the killing was intentional, a conviction of "culpable homicide" was justified if the accused's self-control had been impaired.[160]
5.119 The 1949 case of R v Thibani[161] witnessed the beginning of a new phase in the development of the defence of provocation.[162] The court regarded evidence of provocation as a:
5.120 This decision led to a diminished influence of section 141 of the 1886 Code. Following Thibani, the courts were undecided as to whether an objective or a subjective test should be applied.[164] It was only in 1971 that the Appellate Division, in S v Mokonto,[165] finally decided that the approach in judging provocation must be completely subjective. The Court made it clear that the test for provocation is no longer how an ordinary reasonable man would have reacted to the provocation, but how the particular accused, taking into account his personal characteristics such as jealousy or a quick–temper, in fact reacted, and what his state of mind was at the crucial time. At this stage, however, the Court was not willing to hold that provocation could be a complete defence to a charge of murder.[s]pecial kind of material from which, in association with the rest of the evidence, the decision must be reached whether or not the Crown has proved intent as well as the act beyond reasonable doubt.[163]
5.121 Until 1981, South African criminal practice generally recognised only two defences based on criminal incapacity: youth[166] and insanity.[167] In 1981, however, the Appellate Division in S v Chretien[168] included intoxication. This gave rise to the question: if severe intoxication could exclude the basic elements of criminal liability, then why not provocation?
5.122 The term "non-pathological criminal incapacity" began to be used in cases where a defence based on immature age or mental illness was not pleaded. It was introduced for the first time in 1988 in S v Laubscher.[169] Joubert JA used this term to separate this defence from that created by section 78 of the Criminal Procedure Act 51 of 1977 which applied to pathological disturbances.[170] Although the Court did not find it necessary to decide whether a defence of "non-pathological incapacity" existed, it did not reject the possibility.
5.123 In the 1980s the Appellate Division held, in a number of cases, that there could be a complete defence of incapacity even if the incapacity was not the result of mental illness, immature age or intoxication.[171] The process of moving towards a complete subjectivisation of the defence of provocation is discernible in the cases of S v Van Vuuren[172] and S v Lesch.[173] Although the accused in both cases were convicted of murder, the importance of the decisions lies in the Court's consideration and analysis of provocation and its relevant in the determination of the accused's criminal capacity:
5.124 The legal position with regard to the defence of non-pathological criminal incapacity was authoritatively dealt with by the Appellate Division in S v Kalogoropoulos[175] and S v Potgieter[176] respectively. Botha JA in S v Kalogoropoulos affirmed that the accused who relies on non-pathological causes in support of a defence of criminal incapacity is required in evidence to lay a factual foundation, sufficient at least to create reasonable doubt on the point of criminal capacity.[177]I am prepared to accept that an accused person should not be held criminally responsible for an unlawful act where his failure to comprehend what he is doing is attributable not to drink alone, but to a combination of drink and other facts such as provocation and severe emotional stress. In principle there is no reason for limiting the enquiry to the case of the man too drunk to know what he is doing. Other factors which may contribute to the conclusion that he failed to realise what was happening or to appreciate the unlawfulness of his act must obviously be taken into account in assessing his criminal liability. But in every case the critical question is—what evidence is there to support such a conclusion?[174]
5.125 The need for careful scrutiny of the evidence presented in support of the defence of non-pathological criminal incapacity was also stressed by Kumleben JA in S v Potgieter. The judge reached the following conclusion:
5.126 The significance of both these cases is that the courts will carefully scrutinise the defence of non-pathological incapacity and, if the version of the facts presented by the accused is held to be unreliable or untruthful, the psychiatric evidence based on the supposed truthfulness of the accused's version of the facts will not be accepted by the courts.[179]Facts which can be relied upon as indicating that a person was acting in a state of automatism are often consistent with, in fact the reason for, the commission of a deliberate, unlawful act. The court recognised that stress, frustration, fatigue and provocation for instance may diminish self-control to the extent that, colloquially put, a person 'snaps' and a conscious act amounting to a crime results. Similarly, subsequent manifestations of certain emotions, such as fear, panic, guilt and shame, may be present after either a deliberate or an involuntary act has been committed. The facts must therefore be closely examined to determine where the truth lies.[178]
5.127 The case law throughout the 1980s and 1990s indicates that the courts are prepared to accept and recognise provocation and emotional stress as factors which are capable of excluding the voluntariness of the conduct of criminal capacity. There has not, however, been a uniform approach as to whether or not provocation is a complete defence. The preponderance of authority, however, is that it is a complete defence. [180]
5.128 Two cases which warrant attention are S v Nursingh[181] and S v Moses.[182] In Nursingh the accused was charged with the murder of his mother, grandfather and grandmother. It was contended on behalf of the accused that at the relevant time his mind "became so clouded by an emotional storm that seized him that he would not have the mental ability to distinguish between right and wrong and act in accordance with that insight".[183]
5.129 Evidence of prolonged sexual abuse had been placed before the court. A psychiatrist and a psychologist gave evidence to the effect that the previous history of abuse by the accused's mother triggered off a "state of altered consciousness" which significantly reduced his awareness of normality with accompanying loss of judgement and self- control.[184] Squires J held that the onus was on the state to show that the accused had the necessary criminal capacity to establish the mens rea necessary to commit an offence. However, where an accused person relies on non-pathological causes in support of a defence of criminal capacity, he is required to lay the factual foundation for it in evidence, sufficient at least to create a reasonable doubt on the issue as to whether he had that mental capacity.[185] Having regard to all the evidence before the court, Squires J found that the accused had demonstrated the necessary factual foundation, which had at least created a reasonable doubt as to his capacity to form criminal intent. The accused was accordingly acquitted.
5.130 Professor Burchell's commentary raises the following concerns:
5.131 In Moses, the accused and the deceased were homosexual lovers and on the first occasion when the accused had unprotected penetrative intercourse with the deceased, the deceased revealed that he had AIDS. The accused testified that upon hearing this he was provoked to the extent that he lost control over his actions, in that he could realise what he was doing but was so angry that he could not stop himself. The accused gave a detailed history of his family situation and upbringing and how he had been sexually abused by his father.[O]ne cannot help feel a measure of disquiet about the conclusion that an intelligent person, albeit under a good deal of stress, can shoot his mother and grandfather by firing three bullets into their bodies and his grandmother by firing four bullets into her body. In the past, the evidence of behavioural scientists regarding the unfortunate background circumstances faced by an accused would have been led, more appropriately, in mitigation of sentence. But, even if this evidence should be led on the issue of liability: was Nursingh under any more stress or pressure than the accused in Potgieter or Campher?[186]
5.132 The court accepted the expert testimony of a psychiatrist and a psychologist who supported the finding that there was a reasonable possibility that the accused had lacked criminal capacity, even though he may possibly have retained some measure of control over his actions by the time he inflicted the final wound. The Court found that the State had failed to prove beyond reasonable doubt that the accused's control, even at that stage, was not significantly impaired. The accused was therefore acquitted.
5.133 Professor Burchell's criticism of Nursingh is again pertinent: was Moses under any more stress or pressure than the accused in Potgieter,[187] or Campher?[188] In those cases there was evidence of prolonged provocation. There were a number of provocative incidents which led to an accumulation of anger over a period of time and finally the fatal incident in question.[189] For example, in Campher, the accused was subject to abusive and degrading treatment by the deceased over a long period of time; he mocked her religion; he was authoritarian and he regarded her children as an encumbrance.
5.134 The South African law of provocation is, therefore, radical in that it affords the accused the prospect of a complete acquittal if he or she can establish a factual foundation sufficient to create reasonable doubt on the issue of criminal capacity.[190] Over the last three decades, the High Court in three decisions[191] and the Supreme Court of Appeal in one ruling[192] have completely acquitted accused persons charged with murder. The accused relied on the defence of non-pathological incapacity, and in each case the acquittal was based on evidence of his or her provocation/emotional stress at the time of the fatal incident, or before the killing, leading to the conclusion that the State had not proved criminal capacity beyond reasonable doubt.[193]
5.135 The courts, however, have not adopted an entirely consistent approach and it is not clear to what extent a person should be expected to tolerate provocative conduct.[194] The courts have not yet drawn a clear distinction between provocation, which is caused by human beings, and emotional stress, which is a series of events caused by both human beings and surrounding circumstances over a long period of time.[195] It appears that a major problem has been the attempt by the court to adopt an "all-or-nothing" approach to provocation, when quite clearly it cannot be "pigeon-holed" into one specific category.[196]
5.136 As the law currently stands, where an accused person successfully raises the defence of insanity, he or she faces a long period of institutionalisation. On the other hand, if an accused person raises the defence of non-pathological criminal incapacity, and is successful, he or she is completely acquitted.
5.137 There has been strong criticism of how the South African law has developed. In 1985, Snyman asked:
5.138 In 2002, the Supreme Court of Appeal in S v Eadie,[198] comprehensively reviewed the jurisprudence on provocation and emotional stress. Professor Burchell sets out a detailed review of Eadie's case and the extent to which Navsa JA's judgment revises the courts' approach to the defence of provocation in Appendix F.[199] He comments that:Are we not making it progressively easier for those who fall below the standards required by the law to contravene the law with impunity? Are we not diminishing the incentives to conform to the standards of law which are so vital to upholding the law? The search for criminal justice is not, as some "subjectivists" would tend to believe, confined to a determination and recognition of the individual accused's personal knowledge and capabilities.[197]
5.139 Navsa JA did not specifically over-rule the subjective test for capacity, and it still remains the test for capacity in South African law. He acknowledges that it is not the principle that is at fault, but rather its misapplication. He was critical of the decision in Arnold, Nursingh, and Moses because the court placed too much emphasis on the accused's ipse dixit:[201]The Eadie judgment signals a warning that in future the defence of non-pathological incapacity will be scrutinized most carefully. Persons who may in the past have been fortunate enough to be acquitted, in circumstances where they killed someone who had insulted them, will now find the courts ready to evaluate, against objective standards of acceptable behaviour, the evidence adduced by them to support their defence of provocation/emotional stress.[200]
5.140 Navsa JA was not referring to a revision of the test for capacity, "but rather applying correctly, using permissible inference from objective facts and circumstances".[203] The learned judge was critical of Arnold's case as the court readily accepted the accused's version of the events and did not give enough attention to "focused and goal-directed behaviour before, during and after the event."[204]I agree that the greater part of the problem lies in the misapplication of the test [of capacity]. Part of the problem appears to me to be a too-ready acceptance of the accused's ipse dixit concerning his state of mind. It appears to me to be justified to test the accused's evidence about his state of mind, not only again his prior and subsequent conduct but also again the court's experience of human behaviour and social interaction. Critics may describe this as yielding to policy. In my view it is an acceptable method for testing the veracity of an accused's evidence about his state of mind and as a necessary brake to prevent unwarranted extensions of the defence.[202]
5.141 Eadie, therefore, continues to allow provocation to be subjectively test. However, the practical implementation of this test would now accommodate the reality that the policy of the law, in regard to killings involving provocation, must be one of reasonable restraint.[205] The court should now evaluate why the accused reacted the way he or she did, against the objective norms of behaviour to determine whether he or she could reasonably be expected to have acted differently.[206] It is for this reason that Eadie was convicted of murder after violently losing his temper in a road rage battle.
5.142
5.143
5.144 However, despite this change in attitude to provocation by Navsa JA in Eadie:
a scintilla of a possibility will exist in South Africa that an accused, who raises lack of capacity resulting from provocation (or emotional stress) in a predicament of extremely severe provocation (or emotional stress), probably extending over a lengthy period of time, could be completely excused from liability on the basis of lack of capacity, provided a reasonable person in his or her position or group would have acted in the same way as the accused did ie the accused could not reasonably have been expected to have acted differently.[207]
Note 1 Available on our website at www lawcom.gov.uk, via the link to publications. [Back] Note 2 Included within the fourteen jurisdictions are eight Australian ones, the Australian States of New South Wales, Queensland, South Australia, Tasmania, Victoria and Western Australia as well as the two Australian Territories of Australian Capital Territory and Northern Territory. [Back] Note 4 See paras 5.108 - 5.110. [Back] Note 5 See paras 5.53 – 5.55. [Back] Note 8 Examples are New South Wales (see paras 5.47 – 5.50), New Zealand (see paras 5.103 – 5.106) and Ireland (see paras 5.94 – 5.95). [Back] Note 10 New Zealand Law Commission, Report on Some Criminal Defences with Particular Reference to Battered Defendants Report 73 (2001) para 120. [Back] Note 11 The consultation paper entitled Homicide: The Plea of Provocation was published on 29 October 2003. See also paras 5.94 – 5.95, below. [Back] Note 12 The Discussion Paper, entitled Defences to Homicide: Options Paper, was published in October 2003. [Back] Note 13 It is true that in Queensland the defence is contained in s 304 of the Queensland Criminal Code. It has been held, however, that the section incorporates the common law – Herlihy [1956] St R Qd 18; Callope [1965] Qd R 456. [Back] Note 14 See Appendix A, S Yeo, para 1.3. [Back] Note 15 In this Part referred to as “the 1900 Act”. [Back] Note 16 Crimes (Life Sentences) Amendment Act 1989 (NSW), schedule 1. [Back] Note 17 R v R (1981) 28 SASR 321, 326. [Back] Note 19 Chhay (1994) 72 A Crim R 1. [Back] Note 20 Terry [1964] VR 248. [Back] Note 21 See Appendix A, S Yeo, para 1.12. [Back] Note 23 New South Wales Law Reform Commission, Partial Defences to Murder: Provocation and Infanticide: Report 83 (1997) paras 2.92 to 2.100; in this Part referred to as “NSWLRC Report 83 (1997)”. [Back] Note 24 See Appendix A, S Yeo, para 1.10. [Back] Note 25 NSWLRC Report 83 (1997) para 2.91. [Back] Note 26 See Appendix A, S Yeo, para 1.14. Yeo cites Moffa (1977) 138 CLR 601 (HCA). [Back] Note 27 See Appendix A, S Yeo, para 1.14. [Back] Note 28 Ibid, at para 1.15. [Back] Note 30 NSWLRC Report 83 (1997) para 2.109. [Back] Note 31 See Appendix A, S Yeo, para 1.17. [Back] Note 32 NSWLRC Report 83 (1997) para 2.104. [Back] Note 33 See Appendix A, S Yeo, para 1.18. [Back] Note 34 Ibid, at para 1.20. [Back] Note 35 Ibid, at para 1.22. [Back] Note 36 Ibid, at para 1.23. [Back] Note 37 (1994) 72 A Crim R 1. [Back] Note 39 Stingel (1990) 171 CLR 312 (HCA). [Back] Note 40 See Appendix A, S Yeo, para 1.27. [Back] Note 41 (1995) 183 CLR 58 (HCA). [Back] Note 42 See R v R (1981) 28 SASR 321. [Back] Note 43 See Johnson (1976) 136 CLR 619 (HCA). [Back] Note 44 (1995) 183 CLR 58 (HCA). [Back] Note 46 See Appendix A, S Yeo, para 1.43. [Back] Note 47 Ibid, at para 1.45. [Back] Note 48 Ibid, at para 1.47; Stingel (1990) 171 CLR 312, 334; Masciantonio (1995) 183 CLR 58, 67-68; Tuncay [1998] 2 VR 19. [Back] Note 49 Criminal Code Amendment (Abolition of Defence of Provocation) Act 2003 (Tas). [Back] Note 50 See Appendix A, S Yeo, para 1.52. [Back] Note 51 The Victorian Law Commission has recently published a Discussion Paper, entitled Defences to Homicide: Options Paper (October 2003). [Back] Note 52 Herlihy [1956] St R Qd 18; Callope [1965] Qd R 456. [Back] Note 53 Criminal Code 1914 (WA), s 281. [Back] Note 54 Mehemet Ali (1957) 59 WALR 28; Censori [1983] WAR 89 (CCA); Roche [1988] WAR 278. [Back] Note 55 Emphasis added. [Back] Note 56 See Appendix A, S Yeo, para 1.49. [Back] Note 57 NSWLRC Report 83 (1997) para 2.142. [Back] Note 58 See Appendix A, S Yeo, para 1.51. [Back] Note 59 Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General, Discussion Paper, Draft Model Criminal Code: Chapter 5. Fatal Offences against the Person (1998) p 91. [Back] Note 60 See Appendix A, S Yeo, para 1.52. [Back] Note 61 Ibid, at para 1.34. [Back] Note 62 NSWLRC Report 83 (1997) para 2.81. [Back] Note 63 Proposed s 23(2)(b). [Back] Note 64 NSWLRC Report 83 (1997) para 2.83. [Back] Note 67 See Appendix A, S Yeo, para 1.36. [Back] Note 68 The 1892 provision was derived from the English Draft Criminal Code of 1879. [Back] Note 69 See Appendix B, D Ives, p 74. [Back] Note 70 Canadian Criminal Code, s 232(2). [Back] Note 71 See Appendix B, D Ives, p 75. [Back] Note 72 Thibert [1996] 1 SCR 31, 54-55. [Back] Note 73 Taylor [1947] SCR 462, 475; Tripodi [1955] SCR 438, 445. [Back] Note 74 See Appendix B, D Ives, pp 75 - 76. [Back] Note 75 [1986] 1 SCR 313. [Back] Note 76 Ibid, at p 331. [Back] Note 77 Thibert [1996] 1 SCR 37, 49. [Back] Note 78 See Appendix B, D Ives, p 75. [Back] Note 80 Tripodi [1955] SCR 438. [Back] Note 81 [1996] 1 SCR 37. [Back] Note 82 Note the question raised in D Ives’ paper, Appendix B, n 19, p 76, as to whether recently the Supreme Court of Canada has signified a desire to tighten up the provocation defence by returning to a stricter suddenness requirement. [Back] Note 83 See Appendix B, D Ives, pp 76 - 78. [Back] Note 84 Ibid, pp 78 - 84. [Back] Note 85 See Appendix A, S Yeo, para 2.1. [Back] Note 86 AIR 1962 SC 605. [Back] Note 87 Ibid, at p 630. [Back] Note 88 AIR 1962 SC 605. [Back] Note 89 Ibid, at p 630. [Back] Note 90 Indian Penal Code 1860, s 300, exception 1. [Back] Note 91 See Appendix A, S Yeo, para 2.9. [Back] Note 92 Nanavati v State AIR 1962 SC 605, 630. [Back] Note 93 Indian Penal Code 1860, s 300, exception 1. [Back] Note 94 State v Kamalaksha (1978) Cr LJ 290. [Back] Note 95 Appuhamy (1952) 53 New LR 313, 316. [Back] Note 96 See Appendix A, S Yeo, para 2.15. [Back] Note 97 AIR 1962 SC 605. [Back] Note 98 Ibid, at p 630. [Back] Note 99 See Appendix A, S Yeo, para 2.16. [Back] Note 100 Akhtar v State AIR 1964 All 262 at 269, per Beg J. [Back] Note 101 See Appendix A, S Yeo, para 2.17. [Back] Note 102 See Appendix A, S Yeo, para 2.18. [Back] Note 105 Ibid, at para 2.19. [Back] Note 106 Shyama Charan v State AIR 1969 All 61 at 64, per Chanadra J. [Back] Note 107 See Appendix C, Law Reform Commission of Ireland, para 1. [Back] Note 108 Ibid, at para 20. [Back] Note 109 Ibid, at para 21. [Back] Note 110 People (DPP) v O’Donoghue, The Irish Times 16-20 March 1992; People (DPP) v Bell, The Irish Times 14 November 2000. [Back] Note 111 See Appendix C, Law Reform Commission of Ireland, para 22. [Back] Note 112 People (DPP) v MacEoin [1978] IR 27. [Back] Note 113 Ibid, at p 34. [Back] Note 114 People (DPP) v Noonan [1998] 2 IR 439, 442. [Back] Note 115 [2001] 1 IR 146. [Back] Note 116 Ibid, at p 160. [Back] Note 117 See Appendix C, Law Reform Commission of Ireland, para 19. [Back] Note 118 Published on 29 October 2003. [Back] Note 119 [2001] 1 IR 146. [Back] Note 121 See Appendix D, W Brookbanks, paras 21-25. [Back] Note 122 McCarthy [1992] 2 NZLR 550 (CA); Campbell [1997] 1 NZLR 16 (CA); Rongonui [2000] 2 NZLR 385 (CA). [Back] Note 123 See Appendix D, W Brookbanks, para 25. [Back] Note 124 Gordon (1993) 10 CRNZ 430; Oakes [1995] 2 NZLR 673 (CA). [Back] Note 125 Leilua 20/9/85, CA 18/85. [Back] Note 126 Masters 25/5/94, HC Auckland, 7323/93, per Anderson J. [Back] Note 127 McGregor [1962] NZLR 1069 (CA). [Back] Note 128 [2000] 2 NZLR 385 (CA). [Back] Note 129 [2001] 1 NZLR 318 (CA). [Back] Note 130 [2001] 1 AC 146. [Back] Note 131 See Appendix D, W Brookbanks, para 51. [Back] Note 132 Taaka [1982] 2 NZLR 198 (CA). [Back] Note 133 See Appendix D, W Brookbanks, para 16; Erutoe [1990] 2 NZLR 28 (CA). [Back] Note 134 Some Criminal Defences with Particular Reference to Battered Defendants: Report 73 (2001). [Back] Note 135 See Appendix D, W Brookbanks, para 62. [Back] Note 136 Ibid, at para 63. [Back] Note 137 The Sentencing Act 2002 abolishes the mandatory life sentence for murder. [Back] Note 138 See Appendix D, W Brookbanks, para 64. [Back] Note 139 Report on Culpable Homicide (1976). [Back] Note 140 See Appendix E, J Chalmers, C Gane and F Leverick, p 169. [Back] Note 141 Ibid, at p 173. [Back] Note 142 Ibid, at p 170. [Back] Note 143 HM Advocate v Hill 1941 JC 59. [Back] Note 144 McCormack v HM Advocate 1993 SLT 1158, 1163. [Back] Note 145 HM Advocate v McKean 1997 JC 32 where the accused was female. [Back] Note 146 Thomson v HM Advocate 1986 SLT 281; Cosgrove v HM Advocate 1990 JC 333. [Back] Note 147 Robertson v HM Advocate 1994 SLT 1004. [Back] Note 148 See Appendix E, J Chalmers, C Gane and F Leverick, pp 173 - 174. [Back] Note 149 Thomson v HM Advocate 1986 SLT 281, 284. It has been suggested, however, that some cases where the accused has killed after a period of sustained domestic violence, may be dealt with by discretion from the prosecution, with the Crown being prepared to accept pleas of guilty to culpable homicide. See Appendix E, section 4. [Back] Note 150 2001 SLT 1013. [Back] Note 151 Ibid, at para 34. [Back] Note 152 See Appendix E, J Chalmers, C Gane and F Leverick, p 177. [Back] Note 153 Ibid, at pp 178 - 179. [Back] Note 154 Ibid, at p 175. [Back] Note 155 Ibid, at pp 177 - 178. [Back] Note 156 In this Part referred to as “the 1886 Code”. [Back] Note 157 Criminal Procedure Evidence Act 1917; in this Part referred to as “the 1917 Act”. [Back] Note 158 Constitutional Court of South Africa CCT3/94. [Back] Note 160 Van den Heever JA in R v Hercules 1954 (3) SA 826 (A), held that an example of such a situation would be a husband who surprised his wife in the act of adultery and killed her lover. [Back] Note 161 1949 (4) SA 720 (A). [Back] Note 162 C. R. M. Dlamini, “The Changing Face of Provocation” (1990) South African Journal of Criminal Justice 130. [Back] Note 163 1949 (4) SA 720 (A) at p 731. [Back] Note 164 See L v Lubbe (1963) (4) SA 459 (W); S v Mangondo 1963 (4) SA 160 (A); S v Dlodlo 1966 (2) SA 401 (A); S v Delport 1968 (1) PH h172 (A). [Back] Note 165 1971 (2) SA 319 (A). [Back] Note 166 R v K 1956 (3) SA 353 (A); S v Van Dyk 1969 (1) SA 601 (C); S v S 1977 SA 305 (O); S v M 1978 (3) SA 557 (Tk). [Back] Note 167 S v Mahlinza 1967 (1) SA 408 (A); S v Kavin 1978 (2) SA 731 (W); S v McBride 1979 (4) SA 313 (W); S v Mnyandu 1976 (2) SA 751 (A); S v Mngomezulu 1972 (1) SA 797 (A). [Back] Note 168 1981 (1) SA 1097. [Back] Note 169 1988 (1) SA 163 (A). [Back] Note 170 Ibid, at p 167. [Back] Note 171 S v Van Vuuren 1983 (1) SA 12 (A); S v Arnold 1985 (3) SA 257; S v Adams 1986 (4) SA 882 (A); S v Campher 1987 (1) SA 940 (A); S v Laubscher 1988 (1) SA 163 (A); S v Calitz 1990 (1) SACR 119 (A); S v Wiid 1990(1) SACR 561 (A). [Back] Note 172 1983 (1) SA 12. [Back] Note 173 1983 (1) SA 814 (O). [Back] Note 174 Per Diemont JA in S v Van Vuuren1983 (1) SA 12,17. [Back] Note 175 1993 (1) SACR 12 (A). [Back] Note 176 1994 (1) SACR 61 (A). [Back] Note 177 1993 (1) SACR 12 (A), 21. [Back] Note 178 1994 (1) SACR 61 (A), 73-74. [Back] Note 179 See S v Kensley 1995 (1) SACR 646; S v Ingram 1995 (1) SACR 1 (A). [Back] Note 180 S v Arnold 1985 (3) SA 256 (C); S v Mandela 1992 (1) SACR 661 (A); S v Potgieter 1994 (1) SACR 61 (A); S v Nursingh 1995 (2) SCAR 331 (D); S v Cunningham 1996 (1) SACR 631 (A); S v Moses 1996 (1) SACR 710 (C); S v Henry 1999 (1) SACR 13 (SCA). In other cases the courts have been prepared to accept in principle that provocation can be a complete defence, but the defence has not succeeded on the facts: S v Henry 1999 (1) SACR 13 (SCA); S v Seymour 1998 (1) SACR 66; S v Goitsemag 1997 (1) SACR 99; S v Phama 1997 (1) SACR 485 (ECD); S v Ingram 1995 (1) SACR 1 (A); S v Els 1993 (1) SACR 723; S v Kalogoropoulos 1993 (1) SACR 12 (A); S v Pederson 1998 (2) SACR 383. [Back] Note 181 1995 (2) SCAR 331 (D). [Back] Note 182 1996 (1) SACR 710 (C). [Back] Note 183 S v Nursingh 1995 (2) SCAR 331 (D), 332. [Back] Note 184 Ibid, at p 333. [Back] Note 185 Ibid, at p 334. [Back] Note 186 J M Burchell, South African Criminal Law and Procedure: Volume 1 General Principles of Criminal Law, (1997) p 210. [Back] Note 187 1994 (1) SACR 61 (A). [Back] Note 188 1987 (1) SA 940 (A). [Back] Note 189 R T du Toit, “Provocation to killing in Domestic Relationships” (1993) Responsa Meridiana 230 at p 249. [Back] Note 190 See Appendix F, J Burchell, p 188. [Back] Note 191 S v Arnold 1985 (3) SA 256 (C); S v Nursingh 1995 (2) SCAR 331 (D); and S v Moses 1996 (1) SACR 701 (C). [Back] Note 192 S v Wiid 1990 (1) SACR 561 (A). [Back] Note 193 See Appendix F, J Burchell, p 188. [Back] Note 194 Burchell and Milton, Principles of Criminal Law, (1997), p 291. [Back] Note 195 C. R. M. Dlamini, “The Changing Face of Provocation” (1990) South African Journal of Criminal Justice 130 at p136. [Back] Note 196 Ibid, at p 137. [Back] Note 197 C.R. Snyman, “Is there such a defence in our criminal law as ‘emotional stress’?” (1985) South African Law Journal 240 at p 251. [Back] Note 198 2002 (3) SA 719 (SCA). The Supreme Court of Appeal affirmed the decision of the High Court and rejected the accused’s defence of non-pathological incapacity where he battered another to death in purported road rage. [Back] Note 199 See Appendix F, J Burchell, pp 188 - 198. [Back] Note 200 Ibid, at p 190. [Back] Note 201 Ibid, at p 192. [Back] Note 202 2002 (3) SA 719 (SCA) at paras 64 and 65. [Back] Note 203 See Appendix F, J Burchell, p 190. [Back] Note 204 2002 (3) SA 719 (SCA) at para 46. [Back] Note 205 See Appendix F, J Burchell, p 191. [Back]
