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Aug 03


Every once in a while, I’ll make a post which interests almost nobody. This is almost certainly one of them, so just ignore. Despite being half-asleep through most of it, we had an interesting Crim Law class today on the defence of provocation. That is, if someone swears at you and you kill them, will you be able to claim that you were provoked and thus mitigate your murder charge to a manslaughter sentence? It was a little confusing, so I needed to put some notes down on paper (well, digital paper, at least) after class to get my thoughts in order, and that’s what’s appearing on this page, for no particular reason other than it’s my own musings and I don’t have anywhere better to put them.

Australian law currently imposes a two-step test for whether a person was legally provoked into killing someone. In Stingel, the whole court determined that the first stage is a subjective test where it must be proven (by the prosecution beyond reasonable doubt) that the accused actually did lose self-control, given the particular circumstances and particular disposition of the accused. The second stage was an objective test where it must be proven that in those same circumstances, an “ordinary person” (not “reasonable person”, as loss of self-control implies a loss of rational reasoning ability) would have lost self-control to the extent of killing. That is, a subjective test.

The first test is logical. Let’s say that someone has an inordinate amount of composure, more so than the ordinary person (we’ll get to the peculiarities of that term in a moment) such that on certain provoking circumstances this hypothetical ordinary person would kill, but this super tolerant person would not. Without this subjective loss of self-control test, the latter person would be able to kill the person provoking, while claiming it was justified (or excused – this distinction in terminology is unimportant) because an ordinary person would have done the same thing. Clearly this is illogical, given that provocation is all about loss of self-control. If the person did not lose self-control and formed an intent to commit murder, then that is murder, regardless of what the ordinary person would have done. Naturally, this line of argument is rare, as the defence will try to make out the defendant to be as unstable as possible.

The second test is far more problematic. It basically accepts and consequently excuses the fact that human beings sometimes do lose control when provoked, and as a result, absolves them of some fault with regards to the commission of homicide. This test accepts that beyond a certain level of provocation, a person will snap such that they no longer have a choice in how they react. Where, though, should the law set this bar and hence decree where a person can no longer determine their reactions to an onslaught of verbal abuse/gestures, or sexual promiscuity from an ex-lover, or prolonged abuse from an oppressive spouse?

One solution is to say that everyone is different, and the test should thus be subjective. The fact that someone lost control is a relative thing, and we all have different tolerance levels. In effect, it ditches the second test altogether. Naturally, this is highly problematic given that it is hard evidentially to determine if someone actually lost self-control if they say they did.

It is also more realistic to ascribe some sort of minimum standard which people should adhere to. The fact that someone is unusually prone to fits of violent anger should not mean they receive greater leniency from the law. Hence, this is where the “ordinary person” standard enters: the jury has to imagine the situation as if they were a hypothetical ordinary person. What is an ordinary person? How can a single point of reference cover the wide variety of defendants that appear before the courts? Stingel provided for the ordinary person standard to be take into account the defendant’s age, since age determined maturity and incidentally a teenager would react differently from a middle-aged adult. The idea of attributing different standards to different ages is also found in the notion of doli incapax (eg: Whitty).

If the notion of age being the only factor differentiating between different standards of ordinary people seems somewhat restrictive, you wouldn’t be alone. McHugh J’s dissenting judgment in Masciantonio argued that “the ethnic and cultural background of the accused can be taken into account in determining whether an ordinary person would have lost his or her self-control as the result of the deceased’s provocation”. In England, the House of Lords has actually progressed down this path by holding that other factors apart from age and gender should be considered when assessing the ordinary person: R v Smith [1999] UKHL 49.

This notion is also not without significant difficulties. What other factors should be also taken into account? Physiological differences? Ethnical differences? Religious beliefs? And to what extent should they play a mitigating role in assessing provocation? If Masciantonio’s rage at his son-in-law was partially influenced by his Greek ethnicity and culture, and he was to be provoked because of that, would that mean that all Greeks would be allowed to do the same act and successfully claim provocation? Would there be any consistency in jury verdicts at all, due to differing individual opinions about how a potential myriad of characteristics should be weighed up against each other?

In Green, the members of the Court themselves highlighted this problem. Green, a 22 year old man, claimed provocation after responding to sexual advances and groping from a male friend by punching him a couple dozen times, stabbing him several times with a pair of scissors and then bashing his head into a wall. Apparently Green’s onslaught was partially elicited by images of his father who used to molest his sisters when he was younger. The trial judge directed the jury that they should ignore Green’s family history in considering what the “ordinary man” would do. The Criminal Court of Appeal held that this was an error, and the jury should have been allowed to consider Green’s family history, but still held that Green’s conduct was less than that expected of the “ordinary man”. The High Court applied Stingel with regards to the second step test, but each judge came to differing conclusions. The majority of the High Court disagreed with the Court of Appeal, saying that it was a question of fact whether Green reacted in the way an ordinary man would react that should be left to a jury, where it was possible they could decide either way.

Gummow and Kirby JJ, in dissent, argued that there was no way that a reasonable jury would find that the defendant acted as an ordinary man would in those circumstances. Kirby J, thinking that the killing was elicited by the fact that it was a man cracking on to the defendant, asserted that not responding with homicide to homosexual advances was part of the ordinary man standard. He further asserted that even though this was a homosexual advance, it was something that should not be taken into account for the first step test (I think?). (One can but speculate that Kirby J’s motives behind his judgment were influenced by his personal orientation and views, which of course is the reality for many judgments.)

The other alternative is to abolish the defence of provocation altogether, dispensing with what may be considered as an anachronism dating back from the time a man could kill another man who was having an affair with his wife due to his honour being stained. However, there are still cases in which conceivably people may be so provoked, that there is some justification or excuse for their actions, eg, Battered Wife Syndrome. If overridden by statute, provisions for provocation may initiate a category based approach to provocation, which is not too desirable given the wide variety of circumstances that surround individual cases.

My opinion is that provocation should be retained, along with the ordinary man test. The ordinary man test, if given too many qualifying attributes, would become extremely convoluted. Yet, to have age as the sole attribute seems overly restrictive and unfair. It would seem that Lord Steyn’s dissenting judgment in Luc Thiet Thuan makes the most sense to me: “it may prove difficult to say where the line should be drawn. We ought not to shrink for this reason from recognising a rational and just development. The traditional common law answer is apposite: any difficult borderline cases will be considered if and when they occur.” Taking things on a case by case basis seems fairer, although it still has issues with consistency of justice, due to different cases accounting for different attributes of the accused. Australian law as it stands, however, is still with the tests in Stingel.