Provocation (cont.

)
Criminal Laws, S2 2014, Class 9

Revision
1.) When will evidence of self-induced intoxication lead to
acquittal?
2.) When can evidence of involuntary intoxication be taken
into account?
3.) What was the previous test for provocation, and what were
some major problems with this test?
4.) What changes to the partial defence on provocation did the
Select Committee recommend, and what changes did the
government adopt in response?
5.) What is the key problem with the new version of s 23?

Intoxication: Revision
Basic Position:
Self-induced intoxication can only be taken into account for offences of specific
intent: s 428C
The proper question that should be put to the jury is whether the person formed the
specific intent, not whether they had the capacity to do so: Makisi. If the person did
not form the specific intent due to self-induced intoxication, then the offence will not
be made out, although a lesser charge may still be available.
For all other offences, self-induced intoxication cannot be taken into account: s 428D.
Consistently with this approach, self-induced intoxication cannot be taken into
account for determining the voluntariness of the actus reus: s 428G
Involuntary Intoxication:
May be taken into account for offences of specific intent (s 428C), other offences (s
428D) and the voluntariness of the actus reus (s 428G if the relevant conduct
resulted from the involuntary intoxication)
Questions of whether the intoxication is voluntary or involuntary should be
determined according to the commonsense test of causation: Hadba

Intoxication (cont.)
Reasonable Person:
Where an offence involves a reasonable person test, you should compare the conduct
or state of mind of the accused against the reasonable sober person (i.e. intoxication
is no excuse for failing to meet the standards of the reasonable person): s 428F
On face value, this also applies to involuntary intoxication, although this seems like
an unfair standard to impose on somebody who was intoxicated unknowingly or
against their will, so it is possible that a court might read s 428F down so that it only
applies to voluntary intoxication
Unlawful Homicide:
Murder is an offence of specific intent (s 428B), including for reckless indifference to
human life (Grant), but the lesser charge of manslaughter is still available
Self-induced intoxication cannot be taken into account for determining the mens rea
for manslaughter, but involuntary intoxication may be taken into account (s 428E).
This is an exception to the rule above that you should compare an intoxicated
persons conduct against a reasonable sober person. If the accused failed to meet the
standards of a reasonable person due to involuntary intoxication, this may lead to an
acquittal on a charge of manslaughter.

Extreme Provocation: The New s 23

23 Trial for murder-partial defence of extreme provocation
(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.
(3) Conduct of the deceased does not constitute extreme provocation if:
(a) the conduct was only a non-violent sexual advance to the accused, or
(b) the accused incited the conduct in order to provide an excuse to use violence against the deceased.
(4) Conduct of the deceased may constitute extreme provocation even if the conduct did not occur immediately
before the act causing death.

(7) If, on the trial of a person for murder, there is any evidence that the act causing death was in response to
extreme provocation, the onus is on the prosecution to prove beyond reasonable doubt that the act causing
death was not in response to extreme provocation.

Extreme Provocation: Statutory Elements

Procedural:
1. Operates as a partial defence to murder (i.e. reduces murder to manslaughter)
2. Evidential burden is on accused to raise evidence of defence, and then Crown must negative BRD
Key Elements:
1. Act causing death was done in response to conduct of deceased towards or affecting the accused
(Davis)
2. Conduct of the deceased was a serious indictable offence (>5yrs) (superseding R)
3. Conduct of deceased caused the accused to lose self-control (Chhay)
4. Conduct of the deceased could (Heron, Anderson) have caused an ordinary person in the position of
the accused to lose self-control to the point of forming an intent to kill or inflict GBH (Stingel +
Masciantonio [ethnicity], Mungatopi [Aboriginality], Camplin [gender])
Other points:
1. Non-violent sexual advances will not constitute provoking conduct (addresses problems raised in Kirbys
dissent in Green)
2. Accused cannot incite the provoking conduct (codifying Edwards, although perhaps still a possibility that
accused might have incited conduct without intending this as an excuse to use violence)
3. Conduct of the deceased need not occur immediately before death (i.e. slow-burn scenario available,
as in Chhay)
4. Evidence of self-induced intoxication cannot be taken into account

Conduct of the Deceased + Towards or Affecting

Accused
Davis (1998) 100 A Crim R 573

Hearsay Provocation
What was the accused responding to words or conduct?
Is the requirement of proximity adding words to statute? Simpson J
Special Leave application possibility that argument could
succeed(?)

Words Alone
Lees
Scepticism about mere words
Words of a sufficient violent, offensive, or otherwise aggravating
character
To what extent is Lees still relevant under the new test of extreme
provocation?
Meaning of conduct
Serious indictable offence
Ordinary person test

Serious Indictable Offences Committed by

Words
99 Demanding property with intent
(1) Whosoever, with menaces, or by force, demands any property from any person, with
intent to steal the same, shall be liable to imprisonment for ten years.
(2) A person is guilty of an offence under this subsection if the person commits an
offence under subsection (1) in the company of another person or persons. A person
convicted of an offence under this subsection is liable to imprisonment for 14 years
249KBlackmail offence
(1) A person who makes any unwarranted demand with menaces:
(a)with the intention of obtaining a gain or of causing a loss, or
(b)with the intention of influencing the exercise of a public duty,
is guilty of an offence.
Maximum penalty: Imprisonment for 10 years.
(2) A person is guilty of an offence against this subsection if the person commits an
offence against subsection (1) by an accusation, or a threatened accusation, that a
person has committed a serious indictable offence.
Maximum penalty: Imprisonment for 14 years.

Serious Indictable Offences Committed by

Words
s 13Stalking or intimidation with intent to cause fear of physical or mental
harm
(1) A person who stalks or intimidates another person with the intention of causing the
other person to fear physical or mental harm is guilty of an offence.
Maximum penalty: Imprisonment for 5 years or 50 penalty units, or both.

s 7Meaning of intimidation
(1) For the purposes of this Act, intimidation of a person means:
(a)conduct amounting to harassment or molestation of the person, or
(b)an approach made to the person by any means (including by telephone, telephone
text messaging, e-mailing and other technologically assisted means) that causes the
person to fear for his or her safety, or
(c)any conduct that causes a reasonable apprehension of injury to a person or to a
person with whom he or she has a domestic relationship, or of violence or damage to
any person or property.
(2) For the purpose of determining whether a persons conduct amounts to intimidation, a
court may have regard to any pattern of violence (especially violence constituting a
domestic violence offence) in the persons behaviour.

Time Delay and Loss of Self-Control

Chhay

Slow-burn scenario
Values/history/gender bias
sudden and temporary loss of self-control
Is a specific triggering incident requirement?
Distinguishing loss of self-control from deliberate act of
vengeance
Not justifying just deserts
Relevance of ordinary person test
See also R
Why did Tolmie describe this as artificial reasoning?
Causation: Pollock

Ordinary Person Test

Stingel
1.) What is the subjective element required in a defence of provocation?
2.) What are the two objective elements?
3.) Which characteristics of the accused can be taken into account for the first objective
test, and which can be taken into account for the second objective test?
4.) How does the ordinary person for the purposes of provocation differ from the
reasonable person in torts?
5.) If the accused possesses some attribute or characteristic that is particularly relevant
to his/her level of self-control, does the same test still apply?

Could Have Caused an Ordinary Person to

Form Intent
By the terms of the statute the test in New South Wales is one of possibilities.
Further, it is not limited to the formation of an intent to kill. It extends to the
infliction of grievous bodily harm. The distinction is not a trivial or irrelevant one.
Heron [2003] HCA 1722

i.e. not must or would have caused an ordinary person to lose self-control

Ethnicity
Masciantonio,
McHugh J (dissenting): The ordinary person standard would not become meaningless
if it incorporated the general characteristics of an ordinary person of the same
age, race, culture and background as the accused on the self-control issue. Without
incorporating those characteristics, the law of provocation is likely to result in
discrimination and injustice.

[U]nless the ethnic or cultural background of the accused is attributed to the ordinary
person, the objective test of self-control results in inequality before the law. Real
equality before the law cannot exist when ethnic or cultural minorities are
convicted or acquitted of murder according to a standard that reflects the
values of the dominant class[.]

Approach denied in Mankotia [2001] NSWCCA 52

Aboriginality
Mugatopi
Refers to an ordinary Aboriginal male person living today in the environment and
culture of a fairly remote Aboriginal community

There is clearly a fine line between cultural sensitivity and cultural stereotyping.

Specific to NT

Gender
Camplin (UK)
It hardly makes sense to say that a normal woman must be notionally stripped of
her femininity before she qualifies as a reasonable woman.

What is the position from Stingel?

Relevance of Chhay - allowing for Battered Woman Syndrome

Homosexual Advance
Green
Kirby J (dissenting):
[T]he conduct of the deceased, however unwanted and offensive to the appellant,
was not of such a nature as to be sufficient, objectively, to deprive a hypothetical
ordinary 22 year-old Australian male in the position of the appellant of the power of
self-control imputed to him by law to the extent of inducing him to form an intent to
kill or inflict grievous bodily harm on the deceased.

Non-violent sexual advance now explicitly excluded from scope of provoking conduct:
s 23(3)(a)
Possibility of non-violent sexual advance that is a serious indictable offence? Court
may read down exception