Provocation: The Ongoing Subservience of Principle to Tradition
| Author | Mirko Bagaric,Luke Neal |
| DOI | 10.1177/002201830306700307 |
| Date | 01 June 2003 |
| Published date | 01 June 2003 |
| Subject Matter | Comment |
Provocation:
The
Ongoing
Subservience
of
Principle
to
Tradition
Luke Neal* and Dr Mirko Bagaric"
Abstract The defence of provocation has
been
highly criticised. Most
commentators argue
that
the
defence is misguided. There does
not
appear
to be
any
community pressure to preserve
the
defence. Despite this,
legislatures are reluctant to abolish provocation as a partial defence to
murder. This article examines
the
underlying rationale for
the
defence. It
concludes
that
the
defence is founded on a flawed assumption about
human
nature-that
people are captive to some of their emotional states.
It
is also argued
that
the
convoluted
and
confusing (if
not
confused) test
for provocation is evidence of
the
unsound
nature
of
the
defence-it
is
simply a case of
not
being able to develop a feasible (and candid) principle
for a doctrine
that
is devoid of a sound justification.
1.
Introduction
Lack of supportfor
retention
of
provocation
The defence of provocation is highly controversial.
It
entails
that
there
is
arelevant difference
between
the
provoked
and
unprovoked killer.I
However, it is
not
easy to find
sound
arguments in favour of this
proposition.
Why
is
the
culpability of a
husband
who
kills his estranged
wife
and
her
lover reduced because he finds
them
in a compromising
situation
and
was
met
with
scornful laughs?"
Why
should aMuslim
father be treated leniently for killing his daughter because he believed
that
she
had
engaged in sexual intercourse with
her
boyfriend?"
It
is
not
that
the
above circumstances of the offence are
necessarily
irrelevant to the imposition of a proper penalty. Rather,
what
many
find
objectionable is
the
universal application of
the
concession granted by
the
defence. Related to this is
the
anomaly
that
in most jurisdictions in
all offences
other
than
murder, provocation is a
matter
for sentence as
opposed to
the
substantive
nature
of
the
offence."
If
the
circumstances of
*Lecturer, School of Law, Deakin University.
** Head of School of Law, Deakin University.
I Model Criminal Code Officers Committee of
the
Standing Committee of Attorney
Generals, Discussion Paper
Model
Criminal
Code
Chapter
5Fatal
Offences
Againstthe
Person
(June
1998) 89.
2 HuttonvThe
Queen
[1986] Tas R 24.
3Rv
Dincer
[1983] VR 460.
4 See R. Fox
and
A. Freiberg,
Sentencing:
Stateand
Federal
Law in
Victoria,
2nd
edn
(Oxford University Press: Oxford, 2000) ch. 11
and
K. Warner,
Sentencing
in
Tasmania
(Federation Press: Sydney, 1991) ch. 11.
5 See M. Goods, 'The Abolition of Provocation' in S. Yeo (ed.).
Partial
Excuses
to
Murder (Federation Press: Sydney, 1991) 37 at 51; J. Horder,
Provocation
and
Responsibility
(Clarendon Press: Oxford, 1992) 197; Attorney-General's
Department, Review of
Commonwealth
Criminal Law, Interim Report,
Principles
of
Criminal
Responsibility
and Other
Matters
(Australian
Government
Publishing
Service: Canberra, 1990) para. 13.56.
237
The Journal
of
Criminal Law
a
murder
warrant
aconcession in
punishment,
then
there
is
ample
scope for this to be
taken
into account in
the
sentencing discretlon."
Noting
such
problems,
there
have
been
loud
calls to abolish
the
defence of provocation. Academics," politicians," Standing Committees."
Law Reform Committees?
and
members
of
the
general
community'?
have argued for
either
abolition or modification of
the
defence. In
addition to
the
criticisms adverted
to
above,
the
defence is frequently
criticised on
the
grounds
that
it is
redundant;
II
confusing (in relation to
both
the
subjective'?
and
objective!' elements); involves fictitious con-
cepts
(the
ordinary
person);"
male
orientated."
and
favours
the
domi-
nant
Anglo-Saxon-Celtic culture to
the
exclusion of minority
groups.16
Calls to abolish
the
defence
have
gained
renewed
momentum
follow-
ing
the
recent Victorian Court of Appeal decision of RvKumar.'? In
Kumar
the
court
rejected
an
appeal of a convicted killer
who
argued
that
the
jury
should
have
been
allowed to consider provocation in circum-
stances
where
he killed his estranged
partner
after
she
insulted
him
and
his family
and
threatened
to
have
sexual relations
with
another
man
in
his presence. Justice O'Bryan said
that
the
defence was anachronistic
6 J. Morgan, 'Provocation Law
and
Facts: Dead Women Tell No Tales, Tales Are Told
About
Them'
(1997)
2
Melbourne
University
Law
Review
237
at
275;
Horder,
above
n. 5at
197
concludes
that
the
defence
should
be abolished
and
that
the
effect of
provocation in
murder
cases be considered as a
matter
for
mitigation
in sentence.
7See M. Paine, 'Tough Libs Draw
the
Line',
Mercury
(Hobart),
II
July
2002,
6
where
it is reported
that
Tasmanian Police Minister David Llewellyn has
undertaken
to abolish
the
defence of provocation.
8Model Criminal Code Officers
Committee
of
the
Standing Committee of Attorney
Generals, Discussion Paper,
Model
Criminal
Code
Chapter
5
Fatal
Offences
Againstthe
Person
(June
1998)
105
where
the
Committee
recommended
that
the
defence of
provocation be abolished and its consideration confined solely to the sentencing
stage.
9See Victorian Law Reform Commission,
Defences
to
Homicide:
Issues
Paper
(Melbourne,
2002)
69
at n.
199.
10 See e.g. W. Howell, 'Getting Away with Murder',
Herald
Sun (Melbourne),
September
2002,
20.
II
It has often been stated
that
the defence is
redundant
because, with
the
abolition
of the capital
punishment,
the
reason for
the
development
of the defence no
longer exists, namely as a concession to
human
frailty
when
death
was
the
penalty
for murder. A. Simester
and
G. Sullivan, Criminal Law
Theory
and
Doctrine
(Hart: London,
2000)
at
355
note
that
the
historical origins of provocation lay in a
long-discarded perception that killings emerging from
sudden
falling-outs (chance-
medleys)
were
less
heinous
than
killings
that
were
the
product of premeditation.
See
further
the
discussion below.
12 Editorial. 'Retaining Partial Defences to
Murder'
(1994)
18 Crim U5at 6stated
'there
is a real need for
the
law to elaborate on
the
degree of actual loss of sell
control'.
13 Ibid.
14 M. J.
Detrnold.
'Provocation to Murder: Sovereignty
and
Multiculture'
(1997)
5
Sydney LR 5at 9.
15 R. Bradfield,
'Domestic
Homicide
and
the
Defence
of Provocation: ATasmanian
Perspective on
the
Jealous Husband
and
Battered Wife'
(2000)
19
University
of
Tasmania
Law
Review
5; S. Yeo, 'Resolving Gender Bias in Criminal Defences'
(
1993)
19
Monash
University
Law
Review
104; ChayvR
(1994)
72
A Crim R Iat I I,
per Gleeson CJ.
16 Australian Law Reform Commission, Multiculturalism and the
Law,
Report No. 57
(1992)
llB-4.
17 120021 VSCA 139.
238
To continue reading
Request your trial