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Lecture

10. [s304&269] Provocation

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Department
Law
Course
JSB171
Professor
All Professors
Semester
Spring

Description
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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