Provocation: A Totally Flawed Defence That Has No Place in Australian Criminal Law Irrespective of Sentencing Regime
Hemming, Andrew, University of Western Sydney Law Review
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). …