Provocation: a totally flawed defence that has no place in Australian criminal law irrespective of sentencing regime.

Author:Hemming, Andrew


Why another article on provocation when this partial defence to murder is already the subject of widespread criticism in the literature? The answer is because the defence is still available in five Australian jurisdictions. Furthermore, there is no consistency across the jurisdictions that have reviewed the defence. Recently, Western Australia elected to abolish the defence, but Queensland has decided to retain it. Internationally, New Zealand has removed the defence from its statute book, but the United Kingdom, Canada and the United States continue to allow the defence. This article identifies the heart of the problem as being mandatory life sentencing for murder, and seeks to argue that the partial defence of provocation is so flawed and gender biased that it is the sentencing regime that needs to be adjusted, especially as "life' rarely actually means 'for the term of his natural life'. Nevertheless, given vested interests and the difficulty of introducing legal reform, the fallback position taken in this article is that if the defence of provocation is to be retained then it is necessary to make the defence much more difficult to run by reversing the onus of proof and by narrowing the scope of the defence. It is contended that the Western Australian Government took the correct path by abolishing the partial defence of provocation and amending the mandatory life penalty for murder. The complementary contention is that the Queensland Government in retaining an amended partial defence of provocation and the mandatory life penalty for murder has opted for a second best solution.


    The Moving Finger writes; and, having writ, Moves on: nor all thy Piety nor Wit

    Shall lure it back to cancel half a Line, Nor all thy Tears wash out a Word of it. (1) This article critically examines the partial defence to murder of provocation, which if not negatived beyond reasonable doubt by the prosecution, reduces murder to manslaughter. Provocation can be traced back to the 17th century, when the criminal law distinguished between a killing where there was proof of malice aforethought, and an unpremeditated killing on the spur of the moment following a provocative act. (2) The distinction was significant at a time when capital punishment was the penalty for murder and could only be avoided if the defendant lacked malice aforethought. (3) 'Manslaughter was only available where the killing had occurred "suddenly" and in "hot blood" in response to an act of provocation by the deceased.' (4)

    Three Australian jurisdictions (Tasmania, Victoria and Western Australia), and New Zealand, have in recent times abolished the partial defence of provocation. This article contends that provocation is a totally flawed defence that has no place at all in any Australian jurisdiction irrespective of the particular sentencing regime. Over the years, numerous Law Reform Commissions have closely studied the partial defence of provocation and have universally concluded that where the sentence for murder is mandatory life imprisonment, the defence should be retained. (5) Such an approach can be likened to the days when capital punishment existed and juries were reluctant to convict for murder lest the defendant be executed. This argument, that a mandatory life sentence for murder justifies the retention of the partial defence of provocation, is met head on and found wanting because the defence has no merit. The two part test most commonly adopted is both confusing and irrelevant to sheeting home criminal responsibility for an intentional killing. This article is therefore at odds with proponents of the partial defence of provocation who argue that provoked killers should be allowed to carry the lesser stigma of manslaughter because it labels such killers accurately, and to whom society is sympathetic because the killing was not premeditated. (6)

    The vehicle used in this article for the analysis of the partial defence of provocation is the Criminal Code 1983 (NT). The Northern Territory has been selected for two main reasons. Firstly, because the Northern Territory has, along with South Australia, the toughest sentencing regime in Australia for murder with a mandatory minimum twenty year sentence before a person is even eligible for parole. Secondly, whilst the Northern Territory is in the process of applying Chapter 2 of the Criminal Code 1995 (Cth) in stages to all offences (which contains no defence of provocation), the Northern Territory Government specifically retained the partial defence of provocation in 2006 for the stated reason of its mandatory life sentence for murder. It is contended that this is a classic case of the sentencing tail wagging the criminal responsibility dog.

    Any analysis of the partial defence of provocation also needs to take place in the context of other available defences such as the partial defence to murder of diminished responsibility, and whether, if provocation is abolished, excessive self defence should be available, particularly to women who kill abusive husbands, as was the case in Victoria when that State abolished provocation in 2005. The partial defence of diminished responsibility (which is available in four Australian jurisdictions, including the Northern Territory, although not in Victoria), like provocation, reduces murder to manslaughter, but unlike provocation, the onus of proof is placed on the defence on the balance of probabilities. There have been some recommendations that rather than abolish the partial defence of provocation completely, it should be amended such that the onus of proof is on the defence. One justification for the reversal of the onus of proof for provocation is that it would then be consistent with the onus of proof for diminished responsibility. Other suggestions have included excluding a provocation based on words alone or the deceased's choice about a relationship.

    It is contended that these proposed amendments are unsatisfactory in isolation. It will be argued that provocation is an historical anachronism; an unacceptable legal concession to male weakness and frailty, that allows anger and loss of self-control to be a mitigating factor when the reverse should be the case, especially as no such mitigation is shown to 'compassionate killings'. Killing someone in response to a provocation, no matter how severe, is never the response of an ordinary person. Today, there is no place for the law to send a misguided message that draws a distinction between provoked and unprovoked killings, based on killing someone in the heat of passion as opposed to a premeditated killing. (7) The partial defence of provocation is both open-ended as to the emotions allegedly driving the defendant, biased in favour of heterosexual men who are the main beneficiaries of the defence, (8) and promotes a culture of blaming the victim who is not present in court to give her (or less frequently his) version of events. (9)

    Given that the prosecution is rarely in a position to contest the defendant's version of events, as the only other witness has been killed by the defendant, this is a strong justification for reversing the onus of proof upon a defendant raising the partial defence of provocation. (10) Where the defendant has to prove provocation on the balance of probabilities, the claim of provocation will likely need to be articulated more clearly, with the trial judge having a greater capacity to prevent weak claims going to the jury. This article supports the reversal of the onus of proof in the absence of the abolition of the defence.

    In line with present community standards, this article calls for the complete abolition of the partial defence of provocation across Australia. As a second best solution, the price to abolish provocation in the Northern Territory may require a legislative package amendIng the Sentencing Act 1995 (NT) to widen the 'exceptional circumstances" provision for murder, as well as the introduction of defensive homicide in domestic violence situations similar to legislation introduced in Victoria in 2005 and Queensland in 2010. Finally, the least preferred option is the retention of the partial defence of provocation, but with an objective test only, with a narrowing of the definition of provocation, and with the onus of proof placed on the defence on the balance of probabilities. As Bronitt and McSherry acknowledge "it may be more realistic to work towards circumscribing the scope of the offence and providing a more workable objective component than to abandon it entirely'. (11)


    I had all the provocation in the world to kill ... I had no malice or spleen against him ... It was not designedly done, but in my passion, for which I am heartily sorry. (12) Although the leading case on provocation, Stingel v The Queen (1995) 183 CLR 58 ("Stingel") concerned the now repealed provisions of the Criminal Code (Tas), "the High Court has observed that there is a large degree of conformity in the law of provocation, whether it be common law or statutory [and] the High Court subsequently affirmed that the test in Stingel equally applied to the common law'.13 In Queensland, where s 304 Criminal Code (Qld) is the relevant section, Kenny states that 'in the absence of a statutory definition of provocation for murder, reliance is placed upon the principles pertaining to provocation as they develop at common law'. (14)

    A man named Stingel, aged nineteen, killed a man named Taylor by stabbing him in the chest with a butcher's knife. For some time Stingel had stalked his ex-girlfriend, who had obtained a court order restraining Stingel from approaching her or talking to her. The facts leading up to the killing of Taylor were disputed. On the version of events most favourable to Stingel, he had come upon Taylor and his ex-girlfriend engaging in sexual activity in a car, opened the car door, was verbally abused by Taylor, then went to his own car where...

To continue reading