Political Rhetoric or Principled Reform of Loss of Control? Anglo-Australian Perspectives on the Exclusionary Conduct Model

DOI10.1350/jcla.2013.77.6.878
Date01 December 2013
Publication Date01 December 2013
AuthorNicola Wake
SubjectArticle
Political Rhetoric or Principled
Reform of Loss of Control?
Anglo-Australian Perspectives on
the Exclusionary Conduct Model
Nicola Wake*
[The exclusionary conduct model] seems to imply the
extraordinary proposition that no one—including husbands and
wives—has any right to expect f‌idelity or lifelong commitment in a
relationship; and that marital betrayal or desertion, even without
notice and announced in a way that is viciously cruel or taunting,
should never give rise to any reaction other than a cool response of
‘I wish you the best in your freely chosen autonomous decision
about your personal and sexual life.’ It seems perverse to continue
to allow the defence for all sudden provocations other than those
that touch on intimate relationships including marriage. This is
unrealistic and ref‌lects an extreme ideological, individualistic view
of marriage and of personal sexual relationships.1
Abstract The New South Wales Legislative Council Select Committee
published its report on the partial defence of provocation in April 2013.
The Committee’s recommendations are closely modelled on the frame-
work and rationale of the loss of control defence under ss 54–56 of the
Coroners and Justice Act 2009, with signif‌icant exceptions designed to
circumvent the diff‌iculties associated with the novel terminology. Inter-
estingly, the Committee advocates the adoption of an exclusionary con-
duct model, despite the problems associated with s. 55(6)(c), which
specif‌ies that sexual inf‌idelity is to be disregarded for the purposes of the
concessionary mitigation. The Committee asserts that a carefully worded
exclusionary conduct model would serve to restrict the partial defence
whilst avoiding the issues which have manifested themselves at appellate
court level in England and Wales. Irrespective of the wording, specif‌ic
prohibitions which focus on the conduct of the victim are unrealistic in
* Senior Lecturer in Law) University of Northumbria; e-mail:
nicola.wake@northumbria.ac.uk. The author expresses her thanks to Professor
Alan Reed (University of Northumbria) for his invaluable comments on earlier
drafts of this article. This article represents the views of the author.
1 New South Wales Legislative Council Select Committee (NSWLCSC), The Partial
Defence of Provocation (2013), available at http://www.parliament.nsw.gov.au/
provocationcommittee, accessed 15 October 2013. Quote from para. 6.71 (Submission
9a, Family Voice, Australia, p. 2).
‘The most common thing one reads in the press in murder cases is that the
wife or husband f‌inds the other spouse in the sexual act, loses control, picks up a
bread knife or whatever comes to hand and stabs and sometimes kills the other
spouse. That is French-style crime passionel. Are we now turning this into
something that the English, with their stiff upper lip, will take as an ordinary
incident of marital life? That is ridiculous and out of line with the way people
think about human passions. It is one great terrible event that can happen in a
married life and to say that it should be disregarded makes nonsense of . . . the
whole of the reform’: Coroners and Justice Bill, Hansard, HL Deb, col. 576, 7 July
2009 (Lord Neill of Bladen).
512 The Journal of Criminal Law (2013) 77 JCL 512–520
doi:10.1350/jcla.2013.77.6.878
that they fail to account for the multitudinous and interconnected nature
of loss of control/provocation claims. Nevertheless, exclusionary conduct
models which concentrate on the conduct of the victim ought to be
distinguished from clauses which focus on the defendants actions. If the
defendant undertakes to cause the victim to respond in a manner for the
purpose of providing an excuse to use violence it is clear that the defence
ought not to apply. Similarly, where a defendant becomes voluntarily
intoxicated, it may be appropriate to exclude that intoxication from
consideration when making the objective assessment as to whether an
ordinary/reasonable person would have reacted as the defendant did in
the circumstances. In this context, explicit legislative exclusions do have
the potential to prevent unnecessary appellate litigation, but only in
limited circumstances.
Keywords Australia; Coroners and Justice Act 2009; Exclusionary
conduct models; New South Wales; Loss of control; Sexual
inf‌idelity
The New South Wales Legislative Council Select Committee2published
its report on the partial defence of provocation in April 2013. The
Reports recommendations are modelled closely on ss 5456 of the
Coroners and Justice Act 2009 as implemented in England and Wales,3
albeit with signif‌icant exceptions designed to circumvent the intractable
f‌laws associated with the novel terminology.4The NSWLCSC placed
particular emphasis on avoiding the problems arising from the divisive
sexual inf‌idelity prohibition contained within s. 55(6)(c) of the 2009
Act.5Notwithstanding these concerns, the NSWLCSCs recommenda-
tions are predicated on an exclusionary conduct model which would
preclude the mitigation to defendants who respond to a non-violent
sexual advance by the victim6and the defence would remain unavail-
able, other than in cases of a most extreme and exceptional character in
several specif‌ied domestic situations including, inter alia, where the
provocation is based on anything done by the deceased or anything the
defendant believes the deceased has done to end or change the nature
of the relationship.7
This comparative extirpation provides a timely and critical reappraisal
of the eff‌icacy of excluding specif‌ic types of behaviour for the purposes
of loss of control/provocation claims. Less than two years after the
implementation of the loss of control defence under ss 5456 of the 2009
2 NSWLCSC, above n. 1.
3 Sections 5456 of the Coroners and Justice Act 2009 were brought into force on
4 October 2010 (Coroners and Justice Act 2009 (Commencement No. 4,
Transitional and Saving Provisions) Order 2010 (SI 2010 No. 816)).
4 Discussed further below. See also NSWLCSC, above n. 1 and N. Wake, Battered
Women, Startled Householders and Psychological Self-defence: Anglo-Australian
Perspectives (2013) 77 JCL 433.
5In determining whether a loss of self-control had a qualifying trigger . . . the fact
that a thing done or said constituted sexual inf‌idelity is to be disregarded:
Coroners and Justice Act 2009, s. 55(6)(c).
6 NSWLCSC, above n. 1, recommendations 6 and 7.
7 NSWLCSC, above n. 1.
Anglo-Australian Perspectives on the Exclusionary Conduct Model
513

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