Criminal Law
Provocation
June 2006
Definition
- D kills V as a result of V’s action: “some act by the V to the accused which would
cause in any reasonable person and does so cause in the accused a sudden and
temporary loss of self control, rendering accused subject passion so as to make
him for the moment not master of his mind.”  Duffy [1949] 1 All ER 932 per
Lord Devlin
Section 23 – Trial for murder - provocation
(1) Where, on the trial of a person for murder, it appears that the act or
omission causing death was an act done or omitted under provocation
and, but for this subsection and the provocation, the jury would have
found the accused guilty of murder, the jury shall acquit the accused of
murder and find the accused guilty of manslaughter.
(2) For the purposes of subsection (1), an act or omission causing death is
an act done or omitted under provocation where:
(a) the act or omission is the result of a loss of self-control on the part
of the accused that was induced by any conduct of the deceased
(including grossly insulting words or gestures) towards or affecting
the accused, and
(b) that conduct of the deceased was such as could have induced 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 upon, the deceased,
whether that conduct of the deceased occurred immediately before the
act or omission causing death or at any previous time.
(3) For the purpose of determining whether an act or omission causing
death was an act done or omitted under provocation as provided by
subsection (2), there is no rule of law that provocation is negatived if:
(a) there was not a reasonable proportion between the act or omission
causing death and the conduct of the deceased that induced the act
or omission,
(b) the act or omission causing death was not an act done or omitted
suddenly, or
(c) the act or omission causing death was an act done or omitted with
any intent to take life or inflict grievous bodily harm.
(4) Where, on the trial of a person for murder, there is any evidence that
the act causing death was an act done or omitted under provocation as
provided by subsection (2), the onus is on the prosecution to prove
beyond reasonable doubt that the act or omission causing death was not
an act done or omitted under provocation.
(5) This section does not exclude or limit any defence to a charge of
murder
Scope & Rationale of Defence
- Parker (No 1) (1963) 111 CLR 610
- Burke [1983] 2 NSWLR 93
Conduct amounting to Provocation
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Holmes [1946] AC 588
Scriva (No 2) [1951] VR 298
Parker (No 1) (1963) 111 CLR 610
Parker (No 2) (1963) 111 CLR 665
Terry [1964] VR 248
Edwards [1973] AC 648
On principle, D cannot rely on the predictable results of his own
blackmailing as conduct constituting provocation, but if hostile
reaction by person sought to be blackmailed goes to extreme lengths it
might constitute provocation even for the blackmailer.
Moffa (1977) 138 CLR 601
Hill (1981) 3 A Crim R 397
The Queen v R (1982) 28 SASR 321; 4 A Crim R 127
Quartly (1986) 11 NSWLR 332
Gardner (1989) 42 A Crim R 279
Peisley (1990) 54 A Crim R 42
Chhay (1994) 72 A Crim R 1
Thorpe [1999] 2 VR 719
Subjective Test – s23(2)(b)
i)
D react suddenly
- Section 23(3), sudden and temporary loss of self control
- Parker (No 1) (1963) 111 CLR 610
ii)
Intent not consistent with invocation of defence
- Lee Chun-Chuen v R [1963] AC 220
- Johnson v R (1976) 136 CLR 619
iii)
Intoxication
- Webb (1977) 16 SASR 309
iv)
Mistaken belief
- Where D is mistaken as to the fact of, or source of provocation
Objective Ordinary Person Test
- Would an ordinary person in D’s position be provoked into losing self control to
such an extent?
i)
Reasonable or ordinary person
- An ordinary person in the position of the accused
ii)
Characteristics of ordinary person
- Stingel v R (1991) 171 CLR 312
- “Person having the power of self control to be expected of an ordinary person of
the sex and age of the accused.”  R v Camplin [1978] AC 705
- “A person possessing all characteristics and idiosyncrasies of the accused; age,
sex, race, colour, physical defects etc., that would have affected his conduct in the
circumstances the accused found himself.”  Dutton (1979) 21 SASR 356
- Bedder v DPP [1954] 1 WLR 1119
- Enright [1961] VR 663
- Moffa (1977) 138 CLR 601
- Baragith (1991) 54 A Crim R 243
- Masciantonio (1994) 183 CLR 58
iii)
Provocation would or might cause an ordinary person to react as D reacts
iv)
Conduct must be capable of provocation retaliation of a relevant degree
- Stingel v R (1991) 171 CLR 312
v)
Intoxication
- S428F says intoxication cannot be taken into account in the ordinary person test
vi)
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Actual Loss of Self Control
Stingel v R (1991) 171 CLR 312
Peisley (1990) 54 A Crim R 42
Masciantonio (1994) 183 CLR 58
The Queen v R (1981) 28 SASR 321
Act of Retaliation need not be proportional to provocation
- Johnson v R (1976) 136 CLR 614
Battered Wives
- Chhay (1994) 72 A Crim R 1
Offences other than murder
- Holmes v DPP [1946] AC 588
- Helmhout (1980) 1 A Crim R 464
a) Attempted Murder
- Duvivier (1981) 5 A Crim R 89
- Wells (1981) 28 SASR 63
- Cunningham [1959] 1 QB 288
b) Serious Assault
Self defence and provocation defence can be used concurrently  Perks (1986) 41
SASR 335
The Ordinary person test
Moffa (1977) 138 CLR 601
Camplin [1978] AC 705
Dincer [1983] VR 460
Stingel (1991) 171 CLR 312
Masciantonio (1994) 183 CLR 58
Green (1997) 148 ALR 659
Smith [2000] 3 WLR 654
Actual loss of self control
Van den Hoek (1986) 161 CLR 158
Chhay (1994) 72 A Crim R 1
Osland (1998) 197 CLR 316
Procedural Aspects  s23(4)
a)
b)
c)
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Judge
Webb (1977) 16 SASR 309
Van den Hoek (1986) 161 CLR 158
Jury
Evidential Onus
Lee Chun-Chuen v R [1963] AC 220
Parker(No 1) (1963) 111 CLR 610
Da Costa v R (1968) 118 CLR 186
R v Camplin [1978] AC 705