Provocation: A Partial defence to Murder
In June 2012 Chamanjot Singh took a box cutter and slit his wife Manpreet Kaur’s throat numerous times killing her. He claimed that he was provoked by the victim’s verbal abuse saying that she had never loved him, as well as by her threatening to deport him. Although he was charged with murder he“was convicted of manslaughter based on the partial defence of provocation and sentenced to a non-parole term of imprisonment of six years.”
This case caused public outcry and as a result NSW government opened a Parliamentary Inquiry into the provocation defence.
What does provocation as a partial defence mean?
Provocation as a partial defence can be used to reduce a charge of murder to manslaughter if the person charged lost control and killed someone based on something the victim did or said (was provoked).
The difference between provocation as a partial defence and an outright charge of murder is determined by whether the prosecution can prove malice aforethought or whether the offence was spur of the moment following a provocative act. Another test for the defence is whether a reasonable person who faced the same provocation would have lost control and done the same thing as the accused.
According to the NSW CRIMES ACT 1900 – SECT 23 the claim of partial defence of extreme provocation is defined as follows:
“(1) If, on the trial of a person for murder, it appears that the act causing death was in response to extreme provocation and, but for this section and the provocation, the jury would have found the accused guilty of murder, the jury is to acquit the accused of murder and find the accused guilty of manslaughter.
(2) An act is done in response to extreme provocation if and only if:
(a) the act of the accused that causes death was in response to conduct of the deceased towards or affecting the accused, and
(b) the conduct of the deceased was a serious indictable offence, and
(c) the conduct of the deceased caused the accused to lose self-control, and
(d) the conduct of the deceased could have caused an ordinary person to lose self-control to the extent of intending to kill or inflict grievous bodily harm on the deceased. “
Does provocation as a defence serve justice to women? Arguments against the availability of Provocation as a Defence to Murder
If provocation is used as a partial defence what message are we sending to women? Are we going back to the dark ages where women had no voice? Will women have to live in fear that if they say something wrong or misstep in some way they will enrage their partners to the point that they lose control and beat them, or worse murder them? As writer Kate Fitz-Gibbon comments on her blog, “it is incomprehensible why in the 21st century the law provides a defence through which a verbal slight to a man’s honour can be used as a partial justification for lethal violence.”
Many feel because we live in a civilised society under a very structured rule of law, people need to be held accountable for their actions with the exception of defence due to diminished capacity.
Should provocation as a defence be abolished?
Critics who believe abolishing provocation as a defence of murder would serve justice for the women who were murdered by jealous and controlling men who used provocation as an excuse for their actions. There is also an argument that the removal of Provocation as a Defence would stop the victims from being blamed and put on trial for the violence perpetrated on them.
Others on the other hand feel that abolishing provocation as a defence would not serve justice to ‘battered’ women who are unable to prove self-defence in cases where they were, after many years of abuse, provoked and killed their partners.
Also raised is the idea that provocation can be very subjective and can often depend on variables such as a person’s ethnicity or culture.
Those in favour of abolishing provocation say that since NSW has no mandatory penalties for the charge of murder judges still have the flexibility to choose a sentence that takes into account mitigating circumstances such as in the case of ‘battered’ women and their history of domestic abuse.
In 2014 Reverend Fred Nile introduced the Crimes Amendment (Provocation) Bill 2014 into Parliament. The amended Bill would abolish the current partial defence of provocation and replace it with a new partial defence of extreme provocation.” This amendment would mean that partial defence could only be applied to cases where the provocation was a serious indictable offence.
The Bill is just waiting for assent. If passed it will ensure that men like Chamanjot Singh would no longer be able to take advantage of the law to avoid a conviction of murder, but will it negatively effect the women who were after many years of domestic violence provoked and killed their partners?