What is provocation? When can provocation be used as a defence?

Provocation is the partial defence to murder pursuant to section 23 of the Crimes Act 1900 (NSW) and the common law. When successfully proven the defence will reduce the charge of murder to manslaughter. The defence does not entitle the person to be acquitted entirely, the jury will be directed to acquit the accused of murder and find them guilty of manslaughter.  Therefore, there must still be an action, or a failure to act, which resulted in death.  However, the moral culpability or the fault element is downgraded due to the circumstances in which the offence occurred. [1]

Recently the NSW Parliament passed the Crimes Amendment (Provocation) Bill 2014, which is currently awaiting assent.  The new act will change the circumstances in which the defence of provocation will apply.  The defence has always been a cause of controversy, though these amendments have been largely a response to the case of Singh v R [2012] NSWSC 637.

Mr Singh stood trial for murder after cutting his wife’s throat several times with a box cutter.  His defence of provocation was that in the moments before he killed his wife, she told him she was never in love with him and was in love with someone else, and they would have him (Mr Singh) deported.  Mr Singh became enraged, lost all self-control, held his wife down and took a box cutter to her throat.[2]

Mr Singh was tried under the current test for provocation. This required the jury to be satisfied that:

1. It was a reasonable possibility that Mr Singh had lost self control in response to his wife’s conduct; and
2. That an ordinary person in Mr Singh’s position would have lost self-control to the extent that an ordinary person could also form the intention to kill or inflict grievous bodily harm.

The jury did acquit Mr Singh of murder and found him guilty of manslaughter.  He was sentenced to 6 years imprisonment with a balance term of 2 years.[3]

The defence has been widely criticised for shifting the blame in murder from the accused to the victim.  It has been criticised for being particularly biased against women because it lends some justification to the male response in situations that could provoke violence.[4]  The issue being that there are some situations in which a violent response to the extent of forming the intention to kill or injure is conceivable to an ordinary person. However, parliament has deemed that such a response is not acceptable and does not have a morally justified basis. The defence has not been entirely abolished, however, the circumstances in which the defence of provocation can apply have been narrowed to “extreme provocation”.

The new partial defence of extreme provocation sets out a four-stage test:

1. The conduct causing the death must be towards or affecting the accused;
2. The provoking conduct must constitute a serious indictable offence;
3. The conduct of the victim caused the accused to lose self-control; and
4. The conduct was so extreme that an ordinary person could have lost self-control and formed the intention to kill or cause grievous bodily harm.[5]

The bill makes specific provision to exclude provocative conduct in the form of a non-violent sexual advance.[6]

What do the changes to provocation laws mean?

The extreme provocation defence is based on an objective test. It no longer requires a jury to consider the position of the accused, only that of an ordinary person.

The requirement that the provocative conduct must constitute a serious indictable offence means that an attempt to leave or a threat to leave a relationship will not constitute provocative conduct.[7]

Although the prosecution continues to bear the onus of proving beyond reasonable doubt that the act causing death was not in response to extreme provocation, the defendant, in raising the defence will be required to give evidence that the provocative conduct amounted to a serious indictable offence.[8]  This may create evidential difficulties for the accused in suggesting the occurrence of an indictable offence.  Particularly where the defendant will not have the same opportunities to forensically examine crime scenes.

The use of the word extreme will no doubt be a point of judicial commentary.  It does suggest that the conduct relied upon must be such that it would occur only in the most serious of circumstances in which the requisite conduct and response is conceivable.

Had the extreme provocation defence existed when Mr Singh stood trial, he would not have been able to raise it.