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10. [s304&269] Provocation

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Provocation Should be left to the jury where open on the facts framed in the sense most favourable to the accused: Lee Cheun-Cheun; Stingel • Provocation & self-defence may be run concurrently: Chhay (children & wife threatened by husband—slowly escalating fear  kills husband) • Judge must direct jury even if not expressly raised by the accused: Van den Hoek (1986) Onus—excuse—the accused to raise some evidence | R to negative BRD PROVOCATION FOR M URDER : S304 When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder, does the act which causes death • in the heat of passion caused by sudden provocation, and • before there is time for the person’s passion to cool, the person is guilty of manslaughter only. Effect—Partial Defence—guilty of manslaughter rather than murder (not full acquittal) • Not available for attempted murder—only relevant to sentencing: McGhee • Elements in Stingel  1. Unlawful killing which constitutes murder When a person who unlawfully kills another… • Unlawful killing with intent to kill or GBH: s302 2. Sudden Provocation … caused by sudden provocation … Provocation under this section on cndmon law meaning, not s268 Code: Johnrdn, Kaparonovski • suddenness of provocation (2 element) ↔ suddenness of response (3 element) • Contextual suddenness—exposure to pressure cumulates into breakdown of self-control o BWS—suddenness of response not required, but provocation must be sudden—last act worse than before o Evidence of BWS admissible: Osland; s132B(2) QEA Examples • Unwelcome sexual advances: Green v R (22yo man & 26yo man good friends—36yo offered 22yo a bed for the night after drinking a lot—22yo made sexual advances on 36yo—36yo stabbed him 10 times—36 claimed special sensitivity due to family history of father abusing sisters  provocation should have gone to jury as relevant to loss of control || BUT close decision: overall 4 (3 HCA + 1 NSWCCA) vs 5 (TJ + 2 NSWCCA + 2 HCA) & changing attitudes so now ‘ordinary person’ not homophobic) • Cheating at cards: Nakayama [1912] Words  Generally—not sufficient: Holmes (1946)  Only sufficient if— o “violently provocative character” or o arose “in circumstances of a most extreme and exceptional character” Moffa (1977) (wife threatened to scratch husband’s eyes out | screw everyone in the street | verbally abused | threw telephone at him | showed nude photos of herself—smacked her down Andrew Trotter LWB239 Criminal Responsibility with an iron bar  most violent & extreme words constituted provocation—also combined with other minor acts (throwing telephone)); Kumar (violently provocative) o Not where  Facial expression: Tough v Kay  De facto cheating: R v Stevens ↔ s268 for assault—expressly includes ‘insult’ Lawful Acts Lawful activities can constitute provocation: R v R (1981) ↔ s268 for assault—lawful act cannot constitute provocation: s268(3) Self-Induced Provocation Defence cannot be raised if induced act in order to retaliate against it: Voukelatos • Where self-induced provocation is the operative provocation: Allwood (accused creating confrontation with ex-wife—turned up with a gun—baited her into an argument—she went nuts—he shot her  can’t rely on defence) • Except if attack beyond what would have been expected: Edwards (A blackmailed B—B pulled knife on A—A assaulted B—A tried to rely on provocation  actions of B more than could have been foreseen → defence applies) Third Party Provocation • Differing approaches—  Acts directed to 3P cannot constitute provocation: Duffy  Acts directed to 3P can constitute provocation—  Conditions— (Quartly) • subject to ordinary person test • provocation must occur in presence of accused = sight or hearing: Quartly  victim need only have sufficient nexus: R v Pangilinan [1999] (group of people provoking accused—victim standing next to person provoking—accidentally killed the wrong guy  provocation available nonetheless—sufficient nexus); Gardner ↔ s268 for assault—explicitly provides for 3P provocation, but only in presence of accused | only attack person doing act: s268(2) 3. Accused lost self control … in the heat of passion caused by sudden provocation … ← subjective test | Q of fact • can take into account any characteristics of the accused— (R v R) o short tempered o intoxicated Fear & Resentment • unclear whether ‘passion’ includes fear/resentment as well as anger: Van Den Hoek ↔ s268 for assault—acts can be motivated by fear or resentment as well as anger: Van Den Hoek Acts before Regaining Control … before there is time for the person’s passion to cool … • If kills after regaining self control → murder: Masciantonio Andrew Trotter LWB239 Criminal Responsibility o Subjective test—Assess with reference to conduct of accused & common human experience rather than ordinary person test: F (two stages of events—stabbed son-in-law beside car | continued despite attempted intervention of onlookers on footpath) • Lapse of time may not negative suddenness if building up of instances: Parker (1964) (victim taunted man saying he would steal his wife away for 6 weeks—two eloped on bicycle—waited 20min to pursue them  SC & HCA: passion cooled → PC & HCA per Dixon J: provocation made out) • Parking km away, removing shoes, then killing = passion cooled: Buttiegieg Battered Women’s Syndrome • Evidence of domestic relationship admissible: Osland; s132B(2) QEA o does not permit hearsay evidence: Babsek (B killed husband—B said was subject to BWS —R wanted to lead evidence that she was bashing husband—only through third party (husband dead)—hearsay  excluded) • If had time to think then passion may have cooled: Duffy (BWS—wife left room after altercation | changed clothes | returned with hatchet to kill  too long, passion cooled); Marabito • No requirement for sudden response if passion gradually mounting rather than declining: R v R (husband raped daughter—daughter told mother that ongoing history of rape of sisters—daughter told mother tried to rape her again—said they were going to be ‘one big happy family’ & not leave home—interpreted as ‘everything will continue like this’ = final trigger—smoked cigarette | went to shed to get axe | killed husband  emotion progressively building up not declining → defence applied) o The loss of self control can develop after a lengthy period of abuse—no final trigger required: Chhay per Gleeson CJ (children & wife threatened by husband—slowly escalating fear  kills husband) o Response to gradually building threat: Hill (1981) (history of violence against wife—drunk & abusive threatening to assault wife—wife shot husband—convicted  jury didn’t consider provocation—substituted verdict of manslaughter) ↔ s269 for assault—must act on it ‘on the sudden’ 5. An ordinary person would have acted similarly ← objective test | question of fact for the jury Two tiered test: Stingel Step 1—Gravity of the provocative acts The gravity of the provocative acts may be determined taking into account the personal characteristics of the accused— • history of relationship—Battered Women’s Syndrome: Green; s132B(2) QEA (evidence of domestic relationship history is admissible) • personal history • age • sex • race: Jabarula v Poore (aborigines) • mental infirmity • intoxication • impotence: Dutton • relationship being of husband and wife and Italian origin: Moffa • ethnic and religious derivation: Dincer Step 2—Ordinary Person Test Andrew Trotter LWB239 Criminal Responsibility Whether an ordinary person of that person’s age would have reacted as the accused did to a provocation of that gravity (take into account the way the person was killed) • Test is the ordinary person—not the reasonable person: Stingel (law does not expect the person to act reasonably, just as an ordinary person would have in the circumstances) • Objective—only consider age—relevant to maturity: Stingel (19yo boy—restraining order issued by ex-gf—saw her naked in car blowing her new bf—had never slept with her | thought he was treating her poorly—new bf told him to piss off—went nuts at bf  reaction fell below those of an ordinary person of his age—provocation not allowed as a defence) o Cf. UK: Smith; but rejected in AG Jersey v Holley in Australia • Do not consider intoxication, bad tempter, insanity: Lesbini; O’Neill; Mancini • Rationale— o “equality before the law”—sex and ethnicity not be taken into account in determining self control: Stingel; confirmed in Masciantonio (son-in-law abused M’s daughter | didn’t come to family event—M stabbed V, pursued & stabbed again  gravity of provocation assessed with reference to concern for daughter—clearly high → but reaction to that still excessive) o ↔ Suggestion that not taking these factors into account is inequality as judging people as per values of the dominant class rather than their own: Masciantonio per McHugh J • Whether ordinary person would have lost control & not regained control—where ordinary man’s passion would have cooled → no application of defence: Buttigieg (insults in argument re past conduct—higher sensitivity due to termination of marriage | higher sensitivity to insult ‘spack’ due to congenitally small fingers—lost control & strangled  increased sensitivity heightening significance of provocative act | but prolonged strangling beyond minimum limits of ordinary man ← passion should have cooled → doesn’t apply || cf. if a sudden blow) Proportionality • No separate requirement of proportionality: Johnson v R; Mancini (“…In short, the mode of resentment must bear a reasonable relationship to the provocation if the offence is to be reduced to manslaughter.”) o ← BUT incorporated in ordinary person test • For example—where weapons used disproportionate: Rose (attack with bottle ↔ shot with rifle at point blank) ↔ s269 for assault—express requirement that force not be disproportionate Andrew Trotter LWB239 Criminal Responsibility P ROVOCATION FOR ASSAULTS :S269 (1) A person is not criminally responsible for an assault committed upon a person who • gives the person provocation for the assault, • if the person is in fact deprived by the provocation of the power of self-control, and • acts upon it on the sudden and before there is time for the person’s passion to cool, and • if the force used o is not disproportionate to the provocation and o is  not intended, and  is not such as is likely, to cause death or grievous bodily harm. Effect—Acquittal 1. Offence of which assault is an element A person is not criminally responsible for an assault committed … • Cannot be used unless assault is an element to be established by the crown—even if assault may be an incident of the commission of the offence: Kapronovski o GBH o doing bodily harm o
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