CRIMINAL LAW AND
PROCEDURE
LWB232
WEEK 8
PROVOCATION
Provocation: Rationales for the Excuse.
 Provocation developed:
as a concession to human frailty, with some
"contributory fault" on the part of the victim;
 historically as a means of avoiding the
unacceptable harshness of a mandatory death
penalty for murder in these circumstances.

 BUT...
Provocation:
Purpose of the Objective Test.
 The objective "ORDINARY PERSON" test
developed to restrict the scope of the
excuse (rather than to reflect its rationales
as above) through the maintenance of
objective standards of behaviour.
Abolish Provocation? Some Arguments..
 Matter for sentence;
 Special form of diminished responsibility;
 Rationale uncertain (particularly if it is that victim
deserves it): if murderous intent exists, is loss of self control
a sufficient moral or legal reason to distinguish provoked
killers from cold blooded killers?
 Operates unjustly because accused must react
suddenly to provocation: cf "coldblooded" killing of
an abusive partner (not excused) with "hotblooded"
killing by a person who discovers unfaithful partner
(excused).
 Gleeson CJ in Chhay (1994): concession to human
frailty is to male frailty.
PROVOCATION UNDER THE QCC
 s 304: reduces murder to manslaughter (as per
common law).
 s 268 defn of provocation provides a complete excuse
for offences of which assault is an element: see s 269
excuse. (No common law equivalent).
 s 268 defn does not apply to s 304:
 See Kaporonovski
 Therefore, s 304 bears common law meaning as
expounded from time to time.
 Not amended in 1997 review.
 Reviewed by Women’s Taskforce: recommended
further investigation and research re operation
Broadly 3 Elements of Excuse:
Both at common law and under the QCC,
broadly 3 elements:
1. A provocative incident
2. Subjective loss of self control
• aspect of suddenness
3. Objective assessment of accused’s
reactions against those of an
“ordinary person”.
What amounts to provocation?
 Words?


S 268 - yes
At common law see Moffa.
Confirmed in Buttigieg
 Wrongful act? Unlawful act?


s 268 - wrongful act which must be unlawful
(see s 268(3)) and note R.
At common law - need not be unlawful.
 What is an “insult” (s 268)?


see Bedelph: words, signs, acts...
need it be wrongful under s 268? Stingel: no.
Actual Loss of self control.
 Subjective test.

“I saw red”
 Note relationship b/w provocation and self
defence. (Lee Chun Chuen)
 As to nature of passion: see Van den Hoek
and Hunter

traditionally anger or resentment, but also fear
or panic can cause loss of self control.
Sudden Provocation and Response
 Consider “contextual suddenness”
 No time for reflection or to formulate
desire for revenge: Duffy.
 See Parker - 20 minutes.
 Re extended periods of dom violence:


R and Hill;
cumulative conduct with a final trigger.
 CF statutory abrogation of suddenness
(eg, in NSW - Morobito and Chhay)
Ordinary Person Objective Test
 Read SG pp 64-66.
 Evolution of test from reasonable to ordinary
person:



Bedder - impotence not taken into account
Then Camplin - Reasonable person shares accused’s
physical characteristics insofar as they affect gravity
of provocation to him/her BUT objective power of
self control expected to be that of R person of same
sex and age as accused. Many subsequent cases
undermined objective test.
Then Stingel.
PROVOCATION: STINGEL
TWO TIERED TEST (1)
FIRST TIER
ASSESSING
THE GRAVITY
OF THE
PROVOCATION
 (Relevant) personal
characteristics or
attributes affect gravity.
 Therefore the provocation
may be assessed to be
somewhere along a
continuum from:
Trivial to Extremely Grave
Examples of Characteristics re gravity.
 must be relevant to provocation offered
 SG at p 65




Dutton - impotence
Moffa - relationship and Italian origin
Jabarula v Poore - community aborigines
Dincer - ethnic and religious derivation
 Stingel at 326:

accused’s age, sex, race, physical features,
personal attributes, personal relationships, past
history, even mental instability.
THEN....
TAKING provocation of THAT
gravity (that is, high degree/very
grave provocation or not very
grave/trivial provocation or
somewhere else on the scale) NOW
apply the second tier of the test.
PROVOCATION: STINGEL
TWO TIERED TEST (2)
SECOND TIER
APPLYING THE
ORDINARY
PERSON
OBJECTIVE
TEST
NB: Issue here re response
 Could PROVOCATION OF
THAT GRAVITY cause an
ORDINARY PERSON who
has NO other characteristic
than the accused's age (re
immaturity) to have lost self
control to the NATURE AND
EXTENT (re proportionality
- kind and degree of
response) that the accused
did?
LEVEL OF SELF CONTROL...
What LEVEL of self control does the
ORDINARY PERSON have?
 The lowest level of self control which falls
within those limits or that range of self
control that can be characterised as
"ordinary" is required of ALL members of
the community: Stingel at 329.
Re application of objective test
 Stingel: “equality before the law” requires that sex
and ethnicity not be taken into account in
determining self control.
 Consider ethnicity in a case like Dincer where
Turkish Muslim stabbed daughter to death
(proposed elopement with boyfriend).
 cf approach in Baraghith: cultural values and
background irrelevant to ord person’s self control
 Stingel confirmed in Masciantonio except that
McHugh J now dissenter.
 Stingel under QCC see Buttigieg.
Stingel under QCC: Buttigieg (1993)
 the provocative conduct

revived argument on her past conduct and the termination
of their marriage and use of insult “spack”
 gravity of provocative conduct assessed from
viewpoint of particular accused

includes knowledge of past relationship and poss
sensitivity to use of “spack”
 could or might an ordinary person in the heat of the
moment react to that conduct by intentionally
strangling her (cf quick blow)?

held reaction fell below the minimum limits of the range
of powers of self control
Required Degree of Chance
 See SG at p 66

self-explanatory
 Issue here of likelihood of accused’s succumbing
to a loss of self-control in response to provocation
 s 268 - “as to be likely when done to the ord p…”

s 286 - likelihood = probability
 s 304 - at CL - whether the provocation “could or
might” have induced the ord p to lose self-control.

S 304 - could or might = possibility
 s 268 = stricter
Proportional Retaliation.
 s 269 - specific requirement.
 s 304 common law: see Johnson - not
separate requirement - one of the matters jury
may take into account:


goes to actual loss of self control by accused; and
also
relevant to application of objective ord person self
control test to accused - See further Green (below):
• would an ord person do an act of the kind and degree
that accused did? OR
• would ord person have been induced to have lost selfcontrol so as to form a murderous intent?
As to whether self control regained...
(OR was the accused still acting under the prov?)
 See Masciantonio: two stages of events

ferocious stabbing attack on son-in-law beside car
which continued, despite attempted intervention of
onlookers, on footpath.
 Question whether accused had regained self
control (so no longer acting under provocation)
not answered by reference to the ord person,
but by reference to the conduct of the accused
and to common experience of human affairs (at
69-70).
Now: A Trilogy of Cases....
Stingel v R (1990) 171 CLR 312

s 160 Criminal Code (Tas)
Masciantonio v R (1995) 183 CLR 58

Victorian common law
Green v R (1997) 148 ALR 659

s 23 Crimes Act 1900 (NSW)
AND: Unity of Principle….
As noted in Stingel at 320 the decisions have
“tended to interact and to reflect a unity of
underlying notions”.
In Green attention drawn to the “basic
similarity of principle” between the common
law, the Codes and the other statutory
provisions on provocation.
Green v R: the facts
Is the ordinary p homophobic?
 accused (male of 22) and deceased (male of
36)
 deceased made a homosexual advance

initially non-violent, but subsequently rough
and aggressive
 accused ferociously battered and stabbed
deceased
 accused claimed a special sensitivity to
sexual interference because of a family
history of abuse by father to sisters.
Green v R: the decisions...
 Trial J: Accused’s sensitivity to matters of
sexual abuse and family history were
irrelevant to provocation.
 NSW CCA: Dismissed appeal (applying
the proviso), but held “sexual abuse
factor” relevant to subjective loss of self
control.
 High Ct: 3:2 appeal allowed; sexual abuse
factor relevant to subjective loss of control
and the extent of that provocation must
then be attributed to the ordinary person.
The Result
CCA Dissent
4 JJ (Brennan CJ, Toohey, McHugh JJ and Smart J):
provocation should have gone to jury.
5 JJ (Trial J, Priestly JA, Ireland J, Gummow and
Kirby JJ): murder conviction inevitable; standard
of self control not met.
“Just differences of opinion whether evidence
fit to go to jury on provocation”
Features of Decision (1)
 If there was, there is no longer any doubt:


excepting age and maturity, no subjective
factors will affect the power of self-control of
the ordinary person in provocation.
Any formulation of the objective test (judicial
or statutory) which includes the phrase
"ordinary person in the position of the
accused" will not be permitted to undermine
the uniform, objective standard of self-control
adopted in Stingel.
Features of Decision (2)
 Objective standard is affected by
"contemporary conditions and attitudes”
 Green provides a specific example:
“...the ‘ordinary person’ in Australian society
today is not so homophonic as to respond to a
non-violent sexual advance by a homosexual
person as to form an intent to kill or to inflict
grievous bodily harm.”
Features of Decision (3)
 Relevance of manner of accused's response?

Is it sufficient to ask whether the ordinary
person could have been induced to have lost
self-control as to form a murderous intent?
OR Must the provocation be of such a nature
that it "could or might cause an ordinary
person...to do what the accused did"?
 In Green , a "murderous intent focus" saves
the accused's excessively frenzied response
from being subjected to the objective test.
Green: What it all means…
(According to the Majority)
“In the present case, this translates to a
person with the minimum powers of selfcontrol of an ordinary person who is
subjected to a sexual advance that is
aggravated because of the accused's special
sensitivity to a history of violence and
sexual assault within his family.”
Per McHugh J at 682
Or (Depending on your position)…
(According to the Minority)
“...any jury, acting reasonably, could not
have failed to be satisfied beyond reasonable
doubt that the nature of the conduct of the
deceased was insufficient to deprive any
hypothetical, ordinary 22-year-old male in
the position of the appellant of the power of
self-control to the extent that he would have
formed an intent to kill or cause grievous
bodily harm upon the deceased.
Per Gummow J in Green at 697
Self-Induced Provocation.
Where accused provokes victim with a premeditated intention to kill/cause GBH.
 s 268(4) - excludes this type provocation.
 s 304 - unclear but probably the same at CL.
 See
Voukelatos - for above defn of concept.
Edwards - blackmailed deceased who
responded with knife attack.
 Allwood - accused bent on confrontation with
estranged wife - any operative prov self induced

Third Party or Indirect Provocation
Where prov need not be directed at accused.
 S 268: see rules there and focus on
relationship b/w accused and person
to whom provocation offered.
 S 304 common law: eg, see  Scriva (No 2): accused saw his daughter run
down and killed - prov open
 Terry: prov offered to accused’s sister
 Deceased’s conduct must occur in presence of
accused: see Quartly even though prov need not
be directed at accused, must occur within
accused’s sight or hearing - prov not left to jury.