The provocation partial defence to murder
by Stephen Odgers
The New South Wales Legislative Council has set up a select committee to inquire into the provocation partial defence to murder. The inquiry will consider a number of recent cases where reliance on the defence has generated some public controversy. It will also consider steps taken in other jurisdictions to either abolish or reform the defence.
In simple terms, the partial defence of provocation reduces murder to manslaughter where it is reasonably possible that the offender had lost self-control in response to the conduct of the deceased, and an “ordinary person” in the position of the offender could also have lost self-control to the extent of forming an intent to kill, or inflict grievous bodily harm on, the deceased.
The defence has been the subject of considerable criticism over the years. The Associate Editor of this Journal, Graeme Coss, has been a passionate critic of it, repeatedly calling for its abolition. He has not been a voice in the wilderness. The defence was abolished in Tasmania in 2003, in Victoria in 2005, and in Western Australia in 2008. The New South Wales Office of the Director of Public Prosecutions has made a submission to the inquiry that New South Wales should follow suit. However, the arguments advanced by that Office to support abolition of the defence are unpersuasive:
- It is said that the defence is illogical in that it requires both a loss of self-control and formation of an intention to kill or inflict grievous bodily harm. However, there is nothing illogical in this. If there was complete loss of control, that would be a complete defence (automatism). Provocation involves a significant loss of control and is compatible with formation of an intention to kill or cause grievous bodily harm.
- There is said to be an inherent “gender bias” in the defence because it addresses typically male patterns of aggression. However, the defence has been modified over time to make it easier for women to take advantage of it (by, for example, removing a requirement of a close temporal nexus between the provocation and the loss of control), in circumstances where self-defence or excessive self-defence were not available. While men tend to rely upon it more than women, perhaps because men are more prone to lose control and engage in homicidal violence than women, that does not mean the law is biased against women. In any event, abolition of the defence would necessarily prejudice those women who might have, quite appropriately, relied upon it.
- It is suggested that, because the victim is deceased, it is relatively easy to fabricate or exaggerate claims of provocation. Assuming that were true, this is an argument for improving the criminal trial process, not for abolishing the defence. There is no doubt that process improvements have been made in recent years, with the abolition of the dock statement, greater admissibility of “relationship” and “tendency” evidence, and willingness to draw an adverse inference from failure of the accused to testify where only the accused can testify regarding the circumstances of the homicide.
- It is said that the partial defence is an “anachronism” now that there is no longer a mandatory sentence for murder. However, on that logic, other partial defences to murder such as diminished responsibility and excessive self-defence should be abolished, and perhaps even the offence of manslaughter. Indeed, according to that logic, murder should be expanded to include cases of manslaughter. This argument makes the questionable assumption that sentencing judges are just as well placed as a jury to assess what an “ordinary person” might have done if placed in the same position as the offender. Further, it assumes that sentencing judges will give appropriate mitigating effect to provocation, when the Victorian experience indicates that judges have treated the abolition of the defence as a legislative signal that homicidal responses to “provocation” should not be regarded as mitigating and that severe sentences should be imposed to deter any loss of control and resulting violence. That contrasts with the position where a jury, representing the community, is permitted to decide that the offender is significantly less culpable than a “murderer”.
- The idea that the partial defence is an anachronism is linked with the proposition that “the rationale for the defence is unclear as it seems to be a fusion of justification and excuse”. However, no one would suggest that the conduct of the provoked offender is “justified”. Equally, it is not “excused”, unlike the accused who, for example, acts under duress. The partial defence has the effect that the offender is not guilty of an offence (murder) with a maximum penalty of life imprisonment, but is guilty of the serious offence of manslaughter with a maximum penalty of 25 years imprisonment. Properly analysed, the partial defence is a concession to ordinary human frailty – it recognises a reduction in culpability.
- It is said the partial defence is anomalous because it applies only to the offence of murder. However, the vast majority of offences do not have different grades. We do have different grades of homicide for very good reasons. It permits a jury to decide whether or not a person is appropriately to be characterised as a “murderer” or someone guilty of a lesser offence with a different maximum penalty.
One aspect of the attack on the provocation partial defence is distrust of juries, a belief that they are too willing to accept defence claims of provocation and too willing to excuse unacceptable responses to provocative conduct. The former point gives too little credit to juries for common sense. The latter point involves the misconception that the law is permitting juries to “excuse” loss of control and violent responses to provocative conduct, instead of sending out a clear message that such responses are never “acceptable”.
There is no recognition of an “excuse” when a crime with a maximum penalty of 25 years imprisonment is the verdict. There is simply a recognition of a significant reduction in culpability on the basis that the offender did what an ordinary person in the same position might have done. Such an offender should not be found guilty of murder. A jury, randomly selected from the community, is the body best suited to decide that question.
As community norms change, so will the outcome of trials. The partial defence came into existence at a time when impugning a man’s honour would have been sufficient to found the partial defence. No longer. A contemporary jury would not accept that an ordinary person might react to such conduct with homicidal violence. To give another example, while a non-violent homosexual advance might have been seen by a jury some decades ago as conduct that might lead an “ordinary person” to form an intention to kill or inflict grievous bodily harm, that is most unlikely to be the case in, for example, Sydney in 2012.
This is not to say that the partial defence should remain precisely as it is. There may be a case for statutory exclusion of certain kinds of supposedly provocative conduct from the operation of the partial defence. There could even be a case for shifting the onus of proof on to the defence in respect of aspects of the partial defence. It would be appropriate to make it clear that the question for a jury in respect of the “ordinary person” test is whether the jury is satisfied that the 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.
More controversially, consideration might be given to abandoning or modifying one or other of the two limbs of the test. Getting rid of the loss of control limb would have the effect that the operation of the partial defence would be significantly extended, opening up the possibility that the “mercy killer” (putting a terminally ill relative out of their misery) might be convicted only of manslaughter, on the basis that an ordinary person in the same position as the accused might have done the same thing. On the other hand, replacing the “ordinary person” limb with a formulation similar to the limb of the partial defence of diminished responsibility (that the circumstances “warrant liability for murder being reduced to manslaughter”) might overcome suggested confusion with regard to the “ordinary person” test whilst retaining the normative judgment required of the jury.
What is clear, however, is that New South Wales should not follow the poorly considered decision of some Australian jurisdictions to abolish the provocation partial defence to murder.
The citation for this editorial is: (2012) 36 Crim LJ 263.