LLB180 Chapter Notes - Chapter 10.7: Indictable Offence, Taylor Rule, Victim Blaming
WEEK 8 – DEFENCES II (EXTREME PROVOCATION):
Chapter 10.7 – Extreme Provocation:
oLegal history of the defence was described in Smith [2006] UKHL 49:
‘The doctrine of provocation has always been described as a concession to human
frailty’
Emerged recognisably in the later 17th and early 18th centuries
‘The human frailty to which the defence of provocation made allowance was the
possibility that the man of honour might overreact and kill when a lesser
retaliation would have been appropriate. Provided that he did not grossly
overreact in the extent or manner of his retaliation, the offence would be
manslaughter and execution avoided.’
19th century society of Victorian middle-class changed the defence:
Generalised the specific situations
Reasonable response was required:
oR v Kirkham (1837): ‘though the law condescends to human frailty, it will not
indulge in human ferocity. It considers man to be a rational being, and
requires that he should exercise a reasonable control over his passions.’
oR v Welsh (1869): ‘something which might naturally cause an ordinary and
reasonably minded man to lose his self-control and commit such an act’
‘preferred to look upon provocation as something which temporarily deprived the
accused of his reason.’
oMajor legislative reforms occurred in 1982 and 2014
10.7.1: The 1982 Reforms:
oRequirement of fatal force occurring immediately after the provoking conduct was unfair
(gendered)
oRequired revision to accommodate for the position of women (and children) in violent
relationships
oCase of R (1981) was a major catalyst for reform
Facts:
R was charged with the murder of her husband
Long history of violence and incest with the daughters
One daughter revealed to R the sexual abuse that had occurred
The daughter said the father tried to rape her that night
R waited for the husband to fall asleep and then killed him with an axe
Matter was being appealed
‘In this context it was, in my opinion, open to the jury to treat the words
themselves and the caressing actions which accompanied them as highly
provocative and quite capable of producing in an ordinary mother endowed with
the natural instincts of law and protection of her daughters, such a loss of self-
control as might lead to killing.’
Retrial was ordered – found her not guilty
oCase of Hill (1981) 3 A Crim R 397 was also important
‘There can be no doubt, equally, that the atmosphere created by the deceased’s
conduct had created a context in which the appellant’s stability and power of self-
control had been rendered fragile.’
oMarch 1981 – NSW Task Force on Domestic Violence was created
Called for amendments to ss 19 and 23 of Crimes Act
find more resources at oneclass.com
find more resources at oneclass.com
Modification of the mandatory life sentence for murder
Replace and broaden provocation
oApril 1982 – Crimes (Homicide) Amendment Act 1982 amended s 19 and subsisted s 23
Key features include:
Provoking conduct was extended to include – any conduct (words or gestures)
towards or affecting the accussed
Immediacy requirement was removed
Conduct must have induced the accused to loss self-control (subjective test)
Conduct was such that ‘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’
10.7.2: The 2014 Reforms:
oCatalyst case was Singh [2012]
oLead to the establishment of a parliamentary inquiry in 2012
oNSW Legislative Council, Partial Defence of Provocation (2013):
Raised in a small amount of cases
Approximately half are successful
Men are more likely to be victims and offenders
1990-2004:
897 homicide cases
75 successful examples of the partial defence
Circumstances that result in provocation being accepted (most common – least
common):
Violent physical confrontations
o28/75 successful matters
oVictims and offenders were mainly male
Killings in the course of domestic violence
o13/75 matters
o10/13 involved a woman killing an abusive husband or partner
oRemaining 3 involve a man killing his wife or partner after she hit him in an
argument
In the context of intimate relationships
o11/75 involved a male killing in the context of infidelity
In the context of homosexual advances
Words alone – a single case
oRange of reform options including abolition and reform (modification and limitation)
oLead to the introduction of ‘extreme provocation’
AG, Second Reading Speech, Crimes Amendment (Provocation) Bill 2014: ‘The bill
represents that Government’s response to the recommendations made by the
Legislative Council’s Select Committee on the Partial Defence of Provocation. …. the
Government is satisfied that the bill strikes a careful and appropriate balance between
restricting the defence and leaving it available for victims of extreme provocation,
including victims of long-term abuse who kill their abuser.’
10.7.3: Current Law:
oSection 23 of Crimes Act retains three-step process for extreme provocation:
Provoking conduct of the victim
Accused’s loss of self-control
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Chapter 10. 7 extreme provocation: legal history of the defence was described in smith [2006] ukhl 49: The doctrine of provocation has always been described as a concession to human frailty". Emerged recognisably in the later 17th and early 18th centuries. The human frailty to which the defence of provocation made allowance was the possibility that the man of honour might overreact and kill when a lesser retaliation would have been appropriate. Provided that he did not grossly overreact in the extent or manner of his retaliation, the offence would be manslaughter and execution avoided. ". 19th century society of victorian middle-class changed the defence: Reasonable response was required: r v kirkham (1837): though the law condescends to human frailty, it will not indulge in human ferocity. Preferred to look upon provocation as something which temporarily deprived the accused of his reason. ": major legislative reforms occurred in 1982 and 2014. R was charged with the murder of her husband.
