Provocation/extreme provocation

[6-400] Introduction

Provocation, or as it is now known “extreme provocation”, operates to reduce a charge of murder to manslaughter: s 23(1) Crimes Act 1900. Although provocation is often described as a “partial defence”, where the evidence raises the issue, the prosecution must prove beyond reasonable doubt that the killing was not in response to extreme provocation: s 23(7) Crimes Act (previously s 23(4)) and see the discussion in Lindsay v The Queen (2015) 255 CLR 272 at [15].

The Crimes Amendment (Provocation) Act 2014 (explained below at [6-440]) substantially altered the law by completely substituting s 23 Crimes Act and creating a partial defence of “extreme provocation”. That substitution does not apply to the trial of a person for murder allegedly committed before 13 June 2014: s 23(9).

[6-410] Leaving provocation/extreme provocation to the jury

It is a question of law for the judge whether there is material in the evidence which sufficiently raises the issue of provocation for the jury’s consideration: Lindsay v The Queen (2015) 255 CLR 272 at [16]. The question is whether on the version of the events most favourable to the accused, a jury acting reasonably might fail to be satisfied beyond reasonable doubt that the killing was unprovoked: Lindsay v The Queen at [26]. There is limited scope for the judge in deciding the question of law and he or she needs to exercise caution before declining to leave provocation to the jury: Stingel v The Queen (1990) 171 CLR 312 at 334; Lindsay v The Queen at [27].

[6-420] Suggested direction — provocation — murder allegedly committed before 13 June 2014

The final issue which the Crown must establish in order to prove that [the accused] is guilty of murder is that [the accused] was not acting under provocation when [he/she] killed [the deceased]. It is not for [the accused] to prove that [he/she] was acting under provocation but for the Crown to prove beyond reasonable doubt that [he/she] was not.

If the Crown satisfies you beyond reasonable doubt that all the other elements of murder have been established beyond reasonable doubt and [the accused] was not provoked to do what [he/she] did, the appropriate verdict is “guilty of murder”. If, however, the Crown does not satisfy you that [he/she] was not provoked, [the accused] will be “not guilty of murder” but “guilty” of the less serious offence of manslaughter (that is, manslaughter by provocation).

How then do you determine whether [the accused] was (or may have been) provoked to do what [he/she] did?

The law provides that an [act/omission] causing death is an act [done/omitted] under provocation where —

1.: The [act/omission] is the result of a loss of self-control on the part of [the accused] that was induced by any conduct of [the deceased] (including grossly insulting words or gestures) towards or affecting [the accused]; and
2.: That conduct of [the deceased] was such that it 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], whether the conduct of [the deceased] occurred immediately before the [act/omission] causing death, or at any previous time.

… [where raised, intoxication must be taken into account when considering question one, but not when considering question two].

Question One

The first question is — “Could [the deceased’s] conduct, that is, the things [he/she] did or said, or both, have induced (that is, caused) [the accused] to lose [his/her] self-control?”.

[Where applicable

The conduct or words of [the deceased], which allegedly induced the loss of self-control on the part of [the accused], need not have occurred immediately before the act causing death but may have occurred at any previous time. It may be a course of conduct over a period of time, even years, or may include a course of conduct over a period of time together with other conduct immediately before the act causing death.]

There must be a causal connection between the conduct of [the deceased] and the loss of self-control by [the accused]. In deciding whether there was such a connection, you must consider the gravity of the alleged provocation so far as [the accused] is concerned. There are relevant matters raised in this case by the evidence.

You must appreciate that conduct which might not be insulting or hurtful to one person may be extremely hurtful to another because of that person’s age, sex, race, ethnic or cultural background, physical features, personal attributes, personal relationships or past history [refer to the special characteristics of the accused raised by the evidence].

You view the words or conduct of [the deceased] as a whole taking account of any history or conflict between [the deceased] and [the accused]. Particular acts or words considered separately may not be provocative. However, when considered in combination, or cumulatively, may be enough to cause [the accused] to lose [his/her] self-control.

That is quite different from a deliberate act of vengeance, hatred or revenge, and likewise quite different from a consideration of whether in the light of [his/her] conduct [the deceased] got what [he/she] deserved.

If you are satisfied beyond reasonable doubt that the answer to that question is “No”, then the Crown has negatived provocation and providing you are satisfied beyond reasonable doubt as to all the elements of murder to which I have earlier referred, the appropriate verdict is “guilty of murder”.

Question Two

If, however, the answer is “Yes”, then you must turn to the second question, which is — “Could the conduct of [the deceased] 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 inflict grievous bodily harm on [the deceased]?”.

An “ordinary person” is simply one who has the minimum powers of self-control expected of an ordinary citizen who is sober, of the same age and level of maturity as [the accused].

When one speaks of the effect of provocation on an ordinary person in the position of [the accused], that phrase means an ordinary person who has been provoked to the same degree of severity and for the same reason as [the accused].

In the present case, this translates to a person with the minimum powers of self-control of an ordinary person, as described earlier [refer to the special characteristics of the accused raised by the evidence as referred to above].

This question requires you to take full account of the sting of the provocation actually experienced by [the accused], but eliminates from your consideration an extraordinary response by [the accused].

You should understand that when you are deciding this question you are considering the possible reaction of an ordinary person in the position of [the accused], not [his/her] probable reaction.

If the answer to this second question is “No”, the Crown has negatived provocation and all the other elements of murder have been established beyond reasonable doubt, the appropriate verdict is “guilty of murder”.

If the answer is “Yes”, the Crown has failed to negative provocation and the appropriate verdict is “not guilty of murder but guilty of manslaughter”.

[6-430] Notes — provocation before 13 June 2014

1.: Provocation requires a reaction by the accused to the conduct of the deceased (including grossly insulting words or gestures) which occurs in his or her sight or hearing. The provocative incident must be one which directly involves the accused and the deceased, although the actual element of provocation may not be directed intentionally or specifically against the accused: R v Quartly (1986) 11 NSWLR 332 at 338; R v Davis (1998) 100 A Crim R 573.
2.: Some apparently innocuous words and conduct on the part of the deceased in the presence of the accused could, when considered in the light of the whole history of their relationship (including matters not occurring in the presence of the accused) amount to provocation: R v R (1981) 28 SASR 321; Moffa v The Queen (1977) 138 CLR 601 at 616; R v Peisley (1990) 54 A Crim R 42.
3.: Any one or more of the accused’s age, sex, race, physical features, personal attributes, personal relationships and past history may be relevant to an assessment of the gravity of a particular wrongful act or insult: Stingel v The Queen (1990) 171 CLR 312 at 326. In Green v The Queen (1997) 191 CLR 334, the trial judge left provocation to the jury but erroneously excluded evidence of past sexual abuse of the accused which was relevant to the gravity of the provocation.
4.: What the law is concerned with is whether the killing was done whilst the accused was in an emotional state which the jury is prepared to accept as a loss of self-control: R v Chhay (1994) 72 A Crim R 1. The loss of self-control may be due to fear, anger or resentment, but must be present at the time of the killing. Conduct giving rise to a sense of grievance or revenge will not suffice: Van Den Hoek v The Queen (1986) 161 CLR 158 at 167; R v Croft [1981] 1 NSWLR 126 at 140. The conduct of the deceased may occur immediately before the act or omission causing death or at any previous time: s 23(2)(b) (repealed) Crimes Act 1900. There is no requirement that the killing immediately follow upon the provocative act or conduct of the deceased. The loss of self-control can develop after a lengthy period of abuse, and without the necessity for a specific triggering incident: R v Chhay.
5.: The ordinary person is a person of the same age and maturity as the accused subject only to the qualification that “the extent of the power of self-control of [the] hypothetical ordinary person is unaffected by the personal characteristics or attributes of the particular accused”: Stingel v The Queen (1990) 171 CLR 312 at 327. Sexual preference, racial background and physical disability, while relevant to the assessment of the gravity of the conduct said to constitute provocation, are not to be imputed to the ordinary person: Stingel v The Queen; Baraghith v The Queen (1991) 54 A Crim R 240 at 327. The ordinary person is to be assumed to have been sober and unaffected by drugs: R v Cooke (1985) 16 A Crim R 304. An accused’s depression is not taken into account for the purposes of the ordinary person: Ziha v R [2013] NSWCCA 27 at [78].
6.: The meaning of the expression “an ordinary person” and “a person placed in the position of the accused” in s 23(2)(a) and (b) (repealed) Crimes Act were considered by the High Court in Green v The Queen (1997) 191 CLR 334.
7.: As to continuance of provocation covering two incidents, see: Masciantonio v The Queen (1995) 183 CLR 58.

[6-440] Extreme provocation — applicable from 13 June 2014

The Crimes Amendment (Provocation) Act 2014 repealed s 23 Crimes Act 1900 and substituted what is described as “extreme provocation”. The amendments do not apply to an accused on trial for a murder that was allegedly committed before the commencement of the Act: s 23(9). The amending Act commenced on 13 June 2014 (s 2; 2014 (354) LW 13.6.14).

These legislative changes were introduced following the Legislative Council’s Select Committee on the Partial Defence of Provocation which “unanimously recommended retaining but significantly restricting the partial defence … to ensure that it could not be used in cases where the provocation claimed was infidelity, leaving a relationship or a non-violent sexual advance” (Second Reading Speech, Hansard, Legislative Council, 5 March 2014, p 27034).

Section 23(2) provides an act is done in response to extreme provocation if and only if:

(a): the accused acted in response to conduct of the deceased towards or affecting the accused; and
(b): the conduct of the deceased is a serious indictable offence (punishable by 5 years imprisonment or more); and
(c): the deceased’s conduct caused the accused to lose self-control; and
(d): the deceased’s conduct 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.

Section 23(2)(c) retains a loss of self-control as a central element of provocation. However, under s 23(2)(d), the loss of self-control is measured according to the objective test of the “ordinary person”, and the previous test (“could have induced an ordinary person in the position of the accused …”) has been removed.

Section 23(3) excludes conduct from being provocative if the conduct was a non-violent sexual advance to the accused, or the accused incited the conduct in order to provide an excuse to use violence against the deceased.

The provocative conduct does not need to occur immediately before the act causing death: s 23(4).

Section 23(5) excludes evidence of self-induced intoxication from being taken into account in determining whether the accused acted in response to extreme provocation. Self-induced intoxication could previously be relevant to whether the accused personally lost self-control, but the removal of “in the position of the accused” is said to make this irrelevant at all stages of the test (see Second Reading Speech, above, p 27036).

Section 23(7) makes clear that extreme provocation is an issue that the Crown must negative: “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”.

[6-442] Suggested direction — extreme provocation — murder allegedly committed on or after 13 June 2014

The final issue which the Crown must establish in order to prove that [the accused] is guilty of murder is that [the accused] was not acting under what is known as “extreme provocation” when [he/she] killed [the deceased]. It is not for [the accused] to prove that [he/she] was acting under extreme provocation. The onus is on the Crown to prove beyond reasonable doubt that [the accused’s] [act/omission] which caused death was not done in response to extreme provocation from [the deceased].

If the Crown satisfies you beyond reasonable doubt that all the other elements of murder have been established beyond reasonable doubt, and that [the accused] was not extremely provoked to do what [he/she] did, the appropriate verdict is “guilty of murder”. But if the Crown fails to satisfy you beyond reasonable doubt that [the accused] was not extremely provoked, the appropriate verdict is “not guilty of murder” but “guilty” of the less serious offence of manslaughter. In other words, the Crown must disprove beyond reasonable doubt that [the accused] was extremely provoked.

In order for you to decide this issue I need to explain further the law of extreme provocation. It is your task to apply this law to the evidence in the case. An [act/omission] causing death is an act [done/omitted] in response to extreme provocation if:

1.: The act of [the accused] that caused death was [done/omitted] in response to conduct of [the deceased] towards or affecting [the accused]; and
2.: The conduct of [the deceased] was a serious indictable offence; and
3.: The conduct of [the deceased] caused [the accused] to lose self-control; and
4.: 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].

I will explain each of these components or elements of extreme provocation in turn.

1. The act of [the accused] was done in response to conduct of [the deceased] towards or affecting [him/her]

The act of [the accused] that caused death must be [done/omitted] in response to conduct of [the deceased] which is directed towards or affecting [the accused]. [The accused] says that [he/she] acted in response to conduct of [the deceased] towards or affecting [him/her].

[Refer to the evidence relied upon by the parties on this issue.]

If you are satisfied beyond reasonable doubt that [the accused] did not act in response to conduct of [the deceased] the Crown has disproved provocation and providing you are satisfied beyond reasonable doubt as to all the elements of murder to which I have earlier referred, the appropriate verdict is “guilty of murder”. If, however, you are not satisfied that the Crown has done so you must consider the next element of extreme provocation.

2. The conduct of [the deceased] was a serious indictable offence

The conduct of [the deceased] must have amounted to a serious offence. [The accused] says that [the deceased’s] conduct constituted the offence of [specify offence]. I direct you as a matter of law that the offence of [specify offence] is a “serious offence”.

The issue for you to decide is whether the Crown has proved beyond reasonable doubt that the conduct of [the deceased] did not amount to an offence of [description of crime]. In deciding this issue you must have careful regard to the ingredients of the offence of [description of crime].

The crime of [description of crime] comprises the following ingredients:

[Set out the ingredients of the serious indictable offence.

If this issue is in dispute it will be necessary for the judge to explain each ingredient and the competing submissions of the parties about the evidence for or against each ingredient of the serious indictable offence.]

If the Crown proves to you beyond reasonable doubt that any or all of the ingredients of [description of crime] did not occur on the evidence then the Crown will have proved the conduct of [the deceased] did not constitute a serious offence.

If you are satisfied that the Crown has proved beyond reasonable doubt that the conduct of [the deceased] did not constitute the serious offence of [description of crime] then the Crown will have disproved extreme provocation and providing you are satisfied beyond reasonable doubt as to all the elements of murder to which I have earlier referred, the appropriate verdict is “guilty of murder”. But if you take the view that the Crown has not done so then you must consider the next element of extreme provocation.

3. The conduct of [the deceased] caused [the accused] to lose self-control

The next issue is whether [the deceased’s] conduct caused [the accused] to lose [his/her] self-control.

[The following may be added from scenarios in s 23 but only where relevant:

Conduct of [the deceased] cannot constitute extreme provocation if the conduct was only a non-violent sexual advance to [the accused].

Conduct of [the deceased] cannot constitute extreme provocation if [the accused] incited the conduct in order to provide an excuse to use violence against [the deceased].]

There must be a connection between the conduct of [the deceased] and the loss of self-control by [the accused]. In deciding whether there is such a connection, you can take into account all the surrounding circumstances and the conduct comprising the serious offence committed by [the deceased].

What the law is concerned with here is whether the act causing death was done whilst [the accused] was in an emotional state which you are prepared to accept as a loss of self-control. That is quite different from a deliberate act of vengeance, hatred or revenge, and quite different from a consideration of whether in the light of [his/her] conduct [the deceased] got what [he/she] deserved.

In considering whether [the accused] lost self-control, you may take into account [his/her] personal attributes. You must appreciate that conduct which might not be insulting or hurtful to one person may be extremely hurtful to another because of that person’s age, sex, race, ethnic or cultural background, physical features, personal attributes, personal relationships or past history.

[Refer to the evidence of special characteristics of the accused raised by the evidence.]

[Where the extreme provocation is based on a course of conduct on the part of the deceased or cumulative provocation the following may be added:

The conduct of [the deceased], which allegedly causes the loss of self-control on the part of [the accused], need not have occurred immediately before the act causing death but may have occurred at any previous time. It may be a course of conduct over a period of time, even years, or may include a course of conduct over a period of time together with other conduct immediately before the act causing death.

You view the conduct of [the deceased] as a whole taking account of any history or conflict between [the deceased] and [the accused]. Conduct of [the deceased] considered separately, or in isolation, may not be provocative. However, when considered together or in combination, or cumulatively, it may be enough to cause [the accused] to lose [his/her] self-control.]

If you are satisfied the Crown has proved beyond reasonable doubt that the conduct of [the deceased] did not cause [the accused] to lose self-control then the Crown will have disproved provocation and providing you are satisfied beyond reasonable doubt as to all the elements of murder to which I have earlier referred, the appropriate verdict is “guilty of murder”. But if you take the view that the Crown has not done so then you must consider the next element of extreme provocation.

4. 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]

The final issue for you to decide is: “Could the conduct of [the deceased] have caused an ordinary person to have so far lost self-control as to have formed an intent to kill or inflict grievous bodily harm on [the deceased]?”

An “ordinary person” is simply one who has the minimum powers of self-control expected of an ordinary citizen who is sober, of the same age and level of maturity as [the accused].

You must eliminate or remove from your consideration the other personal attributes of [the accused] and any extraordinary response to [the deceased’s] conduct by [the accused]. You must decide whether an ordinary person could have lost self-control as a result of [the deceased’s] conduct such as to form an intention to kill or inflict grievous bodily harm on [the deceased].

You should understand that when you are deciding this question you are considering the possible reaction of an ordinary person, not [his/her] probable reaction.

You must put aside any particular predisposition you yourself might have to the conduct of [the deceased]. This is a purely objective question: “Could an ordinary person have lost their self-control to the extent of intending to kill or inflict grievous bodily harm on [the deceased]?”

If the Crown satisfies you beyond reasonable doubt that the conduct of [the deceased] could not have caused an ordinary person to lose self-control to the extent of intending to kill or inflict grievous bodily harm on [the deceased] then the Crown will have disproved provocation and if all the other elements of murder have been established beyond reasonable doubt, the appropriate verdict is “guilty of murder”.

If, however, the Crown has failed to do so it has also failed to disprove provocation and the appropriate verdict is “not guilty of murder but guilty of manslaughter”.

[If applicable — disregard [the accused’s] self-induced intoxication

In deciding the issue of extreme provocation you are to disregard [the accused’s] intoxication. The law provides that evidence of the self-induced intoxication of [the accused] cannot be taken into account in respect of any of these elements of extreme provocation. This means that when you are deciding whether the Crown has proved beyond reasonable doubt that [the accused] was not extremely provoked you must completely disregard the intoxication of [the accused].]

[To explain the issue properly it may be helpful to set out the evidence concerning [the accused’s] intoxication.]

[6-444] Notes — extreme provocation

1.: Section 23(2)(c) Crimes Act 1900 retains a loss of self-control as a central element of provocation. However, under s 23(2)(d), the loss of self-control is measured according to the objective test of the “ordinary person”. The suggested direction defines the “ordinary person” based on the approach of the High Court in Stingel v The Queen (1990) 171 CLR 312 at 327. The ordinary person is one who has the minimum powers of self-control expected of an ordinary citizen who is sober, of the same age and level of maturity as the accused. Johnson J said, in obiter dictum in R v Turnbull (No 25) [2016] NSWSC 831 at [90], that there “is force in the view” that an accused’s age (in the sense of immaturity) remains a part of the ordinary person test.
2.: Section 23(2)(c) retains a loss of self-control as a central element of provocation. However, under s 23(2)(d), the loss of self-control is measured according to the objective test of the “ordinary person” but has removed the expression “in the position of the accused”. Johnson J noted in R v Turnbull (No 25) in obiter dictum at [88]: “It is clear that the removal of the words ‘in the position of the accused’, as part of the 2014 amendments to s 23, operate to narrow significantly the ‘ordinary person’ test for the purpose of extreme provocation”. It was held at [90]: “The attributes of the Accused, which could be taken into account in the past by operation of the words ‘in the position of the accused’, should now be placed to one side”.
3.: Section 23(3) excludes conduct from being provocative if the conduct was a non-violent sexual advance to the accused, or the accused incited the conduct in order to provide an excuse to use violence against the deceased. The provocative conduct does not need to occur immediately before the act causing death: s 23(4).
4.: Section 23(5) excludes evidence of self-induced intoxication from being taken into account in determining whether the accused acted in response to extreme provocation. Self-induced intoxication could previously be relevant to whether the accused personally lost self-control, but the removal of “in the position of the accused” is said to make this irrelevant at all stages of the test (see [6-440], Second Reading Speech, Crimes Amendment (Provocation) Bill 2014 at p 27036).
5.: Section 23(7) makes clear that extreme provocation is an issue that the Crown must negative: “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”.