LLB180 Lecture Notes - Lecture 8: The Offence, Indictable Offence, Reasonable Person
Week 8 – Defences II – Extreme Provocation
Defences and Burden of Proof:
Generally evidentiary burden is on D:
Applied by the judge – whether leave issue to the jury or withdraw issue from
consideration by the jury
Whether D has discharged the evidentiary burden – a question of law
Generally legal burden is on P:
• Once D discharges evidentiary burden, burden shifts to P to prove BRD absence of
defence raised by D
• Persuasive burden
• Applied by the jury to reach a verdict – a question of fact
Provocation to Extreme Provocation
1. Partial defence to a charge of murder
- Success →manslaughter
2. A oessio to hua failt?
3. The atioale ... is that a pesos oal ulpailit is edued hee the kill afte
losing self-control under provocation (AG, 2RS on Crimes Amendment (Provocation)
Bill 2014, 8 May 2014)
4. Historical Perspective
1982 Reforms (CB 887)
• Widened the defence
• Accommodate the position of women and children in violent relationships
• See R (1981) 28 SASR 321 → killed husband after a long history of abuse and him
sexually abusing their daughters, convicted of murder → on appeal it would found a
new trial was needed, the second jury found her not guilty
• See also Hill (CB 888) → alcoholism and violence
• Crimes (Homicide) Amendment Act 1982 → amended s 19 (regarding the
punishment for murder) and substituted a new s 23, defining provocation
• Key features of 1982 statutory formulation:
- The defiitio of potetiall pookig odut as oadeed to a
conduct of the deceased (including words or gestures) towards or affecting the
accused
- The pookig odut ould hae oued iediatel efoe the auseds
use of fatal foe o at a peious tie
- Provoking conduct must have induced the accused to loose self control (a
subjective test)
- The pookig odut as suh as ould hae idued a odia peso i
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 ojetie
test)
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• I the positio of the aused euied a to-step process:
o assessing the gravity of the provoking conduct by taking into account
characteristics of the accused
o askig hethe the lassi odia peso ould hae lost self control in
response to provoking conduct of that gravity
• See Stingel (CB 903)
2014 Amendments
• Narrowed the defence
• Singh led to the establishment of a parliamentary inquiry in 2012 by the NSW
Legislative Council – Partial Defence of Provocation (CB 889)
- Approx. half of the cases that raise provocation are successful
- 1990-2004 → 232 of 897 homicide offenders raised a partial defence, 115 of
these were provocation and 75 were successful
- Successful cases most commonly involved violent physical confrontations,
domestic violence between partners, intimate relationships, alleged homosexual
advances, family violence, non-family sexual assault, words alone
- All discussed in detail CB 890-91
• See the second readings speech CB 892
Old Defence of Provocation – Three Requirements
• Thee ust hae ee odut ats o ods the deeased pookig
odut;
• That conduct must have actually caused the accused to lose self-control and carry
out the acts or omission causing death (the subjective test); and
• That conduct must have been of such a character that it could cause an ordinary
person in the position of the accused to lose self-control so as to kill (the objective
test)
Rationale for an Objective Test?
• If a oessio to hua failt – why assess Ds ehaiou usig a ojetie test?
Wh ist it eough that s/he atuall lost self otol?
• Pootes eualit – everyone in society must exercise a certain level of self-control
• Protects the public by setting a minimum for the required level of self-control
• Attempts to apply the law equally to all: (Stingel)
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Current Law
1. S 23 of the Crimes Act provides principles of provocation (CB 892)
2. Crimes Amendment (Provocation) Act 2014
What Changed?
3-part structure of the defence remains the same as its predecessor:
• The provoking conduct of the victim;
• The auseds loss of self-control resulting from the provoking conduct; and
• Whether the provocation could have caused the ordinary person to lose self-control
1. Significant limiting changes to (1) and (3)
1. Provoking Conduct
Old
New
Deceased had to do something
with or towards the D which
provoked D to kill
Vs odut ust e a seious iditale offee 5 eas+ – s
23(2)(b)
Crimes Act s 4(1) → serious indictable offence
Ensure the jury must be satisfied there is a reasonable possibility that
the conduct of the deceased was behaviour that the community and
Parliament have already determined is so serious it attracts a
significant criminal penalty → people should not generally
contemplate committing homicide
Esues people ho ae goig aout thei usiess do ot pooke
another person to seriously injure or kill them. Merely leaving a
relationship or infidelity wont provide for the partial defence because
people have a right to exercise personal autonomy
See criticisms → CB 893
Vs odut had to e ithi the
sight or hearing of the accused
didt eopass heasa
pooatio
Codut of the iti ust e toads o affetig the aused s
23(2)(a)) → leaving the common law formulation that the provoking
conduct must occur within the sight or hearing of the accused
See Davis (CB 894)
“ a poides the pooatio a e i espose to odut
toads o affetig the aused – no express requirement that the
conduct must be in sight or hearing of accused
Words could constitute provocative
conduct but had to be significant
(Lees [1999])
Possible offences: blackmail (Crimes Act s 249K) and threatening to
damage or destroy property (s 199)
Where the victim tells the accused they have previously committed
the offence may give rise to extreme provocation, however only if the
accused was provoked by the fact of the offence rather than the
etellig. The offee ould eed to e toads o affetig the
aused
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Document Summary
Week 8 defences ii extreme provocation. Applied by the judge whether leave issue to the jury or withdraw issue from consideration by the jury. Whether d has discharged the evidentiary burden a question of law. Provocation to extreme provocation: partial defence to a charge of murder. Success manslaughter: a (cid:272)o(cid:374)(cid:272)essio(cid:374) to (cid:858)hu(cid:373)a(cid:374) f(cid:396)ailt(cid:455)(cid:859), (cid:862)the (cid:396)atio(cid:374)ale is that a pe(cid:396)so(cid:374)(cid:859)s (cid:373)o(cid:396)al (cid:272)ulpa(cid:271)ilit(cid:455) is (cid:396)edu(cid:272)ed (cid:449)he(cid:396)e the(cid:455) kill(cid:859) afte(cid:396) losing self-control under provocation (ag, 2rs on crimes amendment (provocation) Bill 2014, 8 may 2014: historical perspective. The (cid:862)defi(cid:374)itio(cid:374)(cid:863) of pote(cid:374)tiall(cid:455) p(cid:396)o(cid:448)oki(cid:374)g (cid:272)o(cid:374)du(cid:272)t (cid:449)as (cid:271)(cid:396)oade(cid:374)ed to (cid:862)a(cid:374)(cid:455) conduct of the deceased (including words or gestures) towards or affecting the accused. The p(cid:396)o(cid:448)oki(cid:374)g (cid:272)o(cid:374)du(cid:272)t (cid:272)ould ha(cid:448)e o(cid:272)(cid:272)u(cid:396)(cid:396)ed (cid:862)i(cid:373)(cid:373)ediatel(cid:455) (cid:271)efo(cid:396)e(cid:863) the a(cid:272)(cid:272)used(cid:859)s use of fatal fo(cid:396)(cid:272)e (cid:862)o(cid:396) at a(cid:374)(cid:455) p(cid:396)e(cid:448)ious ti(cid:373)e(cid:863) Provoking conduct must have induced the accused to loose self control (a subjective test) 2014 amendments: narrowed the defence, singh led to the establishment of a parliamentary inquiry in 2012 by the nsw.
