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8.12 - Provocation

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Introduction

  1. Prior to 23 November 2005, provocation was a partial defence to murder in Victoria. According to the common law, if the prosecution could prove that the accused had committed all the other elements of murder, but could not disprove the reasonable possibility that s/he had acted while "provoked", s/he should be convicted of manslaughter rather than murder (see, e.g., Masciantonio v R (1994) 183 CLR 58).
  2. On 23 November 2005, provocation was abolished as a partial defence to murder for offences alleged to have been committed on or after that date. However, it remains available as a partial defence to offences alleged to have been committed prior to that date (Crimes Act 1958 s3B, s603).
  3. Where an offence is alleged to have been committed between two dates, one before and one on or after 23 November 2005, the offence is to be treated as if it was alleged to have been committed prior to that date. Provocation will therefore be available as a partial defence in such cases (Crimes Act 1958 s603(2)).

    Elements of Provocation

  4. There are three ways the prosecution can disprove provocation. They can prove that:
    1. The deceased did not act provocatively;
    2. The accused did not kill the deceased while deprived of self-control by his/her provocative conduct (the "subjective test"); or
    3. The deceased’s conduct was not capable of causing an ordinary person to lose self-control and to act in the way in which the accused did (the "objective test").

    Provocative Conduct of the Deceased

  5. The first way for the prosecution to disprove provocation is to prove that the deceased did not act in a way that was capable of provoking the accused’s response.
  6. The jury does not have to be satisfied of what the deceased actually said or did, and so there is no requirement for "proof" of that conduct. If it is reasonably possible that conduct capable of constituting provocation might have occurred, then the prosecution will have failed to disprove this aspect of provocation (see R v Thorpe (No 2) [1999] 2 VR 719).

    Conduct Capable of Constituting Provocation

  7. Conduct that may be "provocative" at law is defined by reference to its possible impact on the accused. Conduct is only provocative if it is capable of causing the accused to lose control, and as a result form and act upon an intention to kill or really seriously injure the deceased (Masciantonio v R (1994) 183 CLR 58).
  8. Issues have arisen in relation to the following types of conduct:

    Third-party conduct

  9. Ordinarily, the accused’s loss of self-control must have resulted from the provocative conduct of the deceased (Masciantonio v R (1994) 183 CLR 58).
  10. The defence will fail if the provocative conduct emanated from a third-party rather than the deceased – unless the deceased in some way adopted, assented to, participated in, or otherwise associated himself or herself with that conduct (R v Abebe (2000) 1 VR 429).
  11. Where the jury needs to determine if the deceased somehow associated him or herself with the conduct of a third-party, they should generally not be directed by reference to the principles of concert or aiding and abetting. The introduction of those concepts in this context will add unnecessarily to the complexity of the direction (R v Abebe (2000) 1 VR 429).

    Conduct mistakenly attributed to the deceased

  12. There is one situation in which provocation can be raised even though the provocative conduct did not emanate from the deceased – where the accused mistakenly believed the deceased to have committed that conduct (R v Abebe (2000) 1 VR 429; R v Kenny [1983] 2 VR 470; R v Voukelatos [1990] VR 1).
  13. It remains unsettled whether that belief needs to have been reasonable. In the absence of appellate consideration, it has been held that such a qualification should not be added (R v Abebe (2000) 1 VR 429).

    Conduct in the absence of the accused

  14. Historically, the partial defence of provocation was not available if the provocative conduct was not committed in the presence of the accused (R v Arden [1975] VR 449; R v Quartly (1986) 11 NSWLR 332).
  15. The correctness of this requirement was doubted by Hayne and McHugh JJ in the special leave application Davis v R (1998) 73 ALJR 139. However, as the matter has not since been reconsidered, it is unclear whether conduct committed in the accused’s absence is now capable of sustaining the partial defence of provocation.
  16. While it may be necessary for the provocative conduct to have been committed in the accused’s presence, there is no requirement that the conduct be primarily directed at the accused (R v Terry [1964] VR 248).

    Mere words

  17. While originally it was thought that provocation would not be available if the provocative conduct consisted of "mere words", it has been held that there is no absolute rule against words alone founding a case of provocation. The existence of such an absolute rule would draw an arbitrary distinction between words and conduct which is insupportable in logic (Moffa v R (1977) 138 CLR 601).
  18. Whether or not a judge should leave provocation to the jury when the provocative conduct consisted of words alone will depend upon the nature of the words. For example, it has been held that provocation need not be left to the jury where the words are "merely insulting, hurtful and offensive", as the objective test could never be established in such a case (R v Kumar (2002) 5 VR 193; R v Leonboyer [2001] VSCA 149).
  19. By contrast, where the words can be characterised as "violently provocative", they will be capable in law of establishing provocation, and the defence may be left to the jury (Holmes v DPP [1946] AC 588; Moffa v R (1977) 138 CLR 601).
  20. The reference in this phrase to "violently" is an indicator of degree rather than content. There is no requirement that the provocative words threaten violence (R v Kumar (2002) 5 VR 193 [Eames at 59]).

    Self-induced provocation

  21. Provocation will not be available as a partial defence if:
  22. Where the accused deliberately incites the provocation, acting with premeditation or actual foresight, the accused cannot be said to act as a result of a loss of self-control. In such circumstances the accused had the necessary pre-existing mental state for murder, at a time before the victim’s allegedly provocative actions occurred (R v Yasso (No.2) (2004) 10 VR 466).

    Historic conduct

  23. The partial defence of provocation cannot be raised solely on the basis of the victim’s historic conduct. If the provocation is not alleged to be found in conduct that is to some degree proximate to the response, then there must be some "triggering event" that is proximate to the loss of self-control (Masciantonio v R (1994) 183 CLR 58; R v Osland [1998] 2 VR 636; Osland v R (1998) 197 CLR 316).
  24. The law does not identify any specific period within which the response must occur (Parker v R (1962) 111 CLR 610. See also Pollock v R (2010) 242 CLR 233).
  25. While purely historic conduct cannot be relied upon as the ultimate provocative event, it remains relevant to the assessment of the "triggering event", and to both the subjective and objective elements of the defence.

    Subjective Test

  26. The second way for the prosecution to disprove provocation is to prove that the accused did not kill the deceased while deprived of self-control by the deceased’s provocative conduct. There are two parts to this "subjective test":
    1. The accused must have killed the deceased while deprived of self-control; and
    2. The accused’s loss of self-control must have been caused by the deceased’s provocative conduct.

    Killing While Deprived of Self-Control

    Loss of self control

  27. The "central idea" of the law of provocation is that of a sudden and temporary loss of self-control, resulting from the provocative conduct of the deceased (Masciantonio v R (1994) 183 CLR 58. See also Pollock v R (2010) 242 CLR 233).
  28. The loss of self-control should not have been so extreme that the accused acted involuntary, or was incapable of forming an intention to kill or really seriously injure the victim. In such cases the accused should be acquitted, rather than being convicted of manslaughter (Parker v R (1962) 111 CLR 610; Masciantonio v R (1994) 183 CLR 58. See also Automatism).
  29. Instead, the loss of self-control must have been a loss of control over the accused’s desire for retribution against the deceased (Masciantonio v R (1994) 183 CLR 58). The accused’s "reason" should have been negated or suspended (Parker v R (1962) 111 CLR 610).
  30. While this will usually occur due to the effects of anger or resentment, the defence may equally be raised where the loss of self-control is the consequence of fear or panic (Van Den Hoek v R (1986) 161 CLR 158; R v Ivanovic [2005] VSCA 238; R v Osland [1998] 2 VR 636).
  31. The requirement that the provocative conduct cause the accused to lose self-control excludes from the scope of the defence an accused who seizes upon such conduct as a convenient excuse for carrying out a previously existing purpose, or who acts upon an old grudge (Parker v R (1964) 111 CLR 665. See also Pollock v R (2010) 242 CLR 233).
  32. A person who kills in order to give effect to a prior understanding or arrangement with respect to the victim's death therefore cannot rely upon provocation (Osland v R (1998) 197 CLR 316).

    "Heat of passion"

  33. The defence of provocation is only available where the "loss of control" is associated with an altered (generally heightened) emotional state, which has historically been referred to as the "heat of passion" (Johnson v R (1976) 136 CLR 619).

    Acting while deprived of self control

  34. The accused must have killed the deceased while deprived of self control by the provocative conduct. The defence will fail if the accused had regained control by the time s/he killed the deceased (Masciantonio v R (1994) 183 CLR 58. See also Pollock v R (2010) 242 CLR 233).
  35. If the accused was intoxicated at the time of the killing, this may be relevant to the question of whether s/he acted without self-control in response to the provocative conduct (R v McCullagh (No 3) [2007] VSCA 293).

    Delayed response

  36. There is no independent requirement that there be no "cooling-off period". The existence of an opportunity to "cool-off" between the provocative conduct and the accused’s response does not mean that the defence will fail (Moffa v R (1977) 138 CLR 601, R v Kumar (2002) 5 VR 193; Pollock v R (2010) 242 CLR 233).
  37. However, a delay between provocation and response can be an important consideration in determining whether the act was:
  38. This issue will generally not turn on a precise counting of the time over which the relevant episode extended. The jury should consider the entire incident, including any events which took place during the interval between the provocative conduct and the response (Parker v R (1962) 111 CLR 610. See also Pollock v R (2010) 242 CLR 233).
  39. A person who kills his or her violent partner in response to long-term abuse is not prevented from raising the partial defence of provocation simply because his or her reaction may be considered to be "delayed" or "slow-burning" (R v Osland [1998] 2 VR 636; R v Thornton (No.2) [1996] 1 WLR 1174).
  40. However, for the defence to be successful there must be a "triggering event" that caused a sudden and temporary loss of self-control at the time of the killing. The mere fact of long-term abuse is not sufficient (R v Osland [1998] 2 VR 636, Osland v R (1998) 197 CLR 316).
  41. The "triggering" incident may be a relatively minor act of abuse, but it cannot be a trivial incident. A history of abuse does not create a blank cheque to plan and execute homicide, protected by the law of provocation (Osland v R (1998) 197 CLR 316).
  42. In cases of long-term abuse, evidence of the abuse, and of "battered-woman syndrome", may be relevant to the jury’s consideration of the effect that otherwise apparently minor incidents may have had on the accused (R v Osland [1998] 2 VR 636; R v Thornton (No.2) [1996] 1 WLR 1174).
  43. Such evidence may also be relevant when determining the gravity of the provocative conduct (see below) (R v Osland [1998] 2 VR 636; Osland v R (1998) 197 CLR 316).

    Objective test

  44. The third way for the prosecution to disprove provocation is to prove that the deceased’s conduct was not capable of causing an ordinary person to lose self-control and to act in the way in which the accused did.
  45. In considering this "objective test", there are two questions the jury must determine:
    1. What was the gravity of the provocation?
    2. Was the provocation of such gravity that it could cause an ordinary person to lose self-control and act like the accused?

    What was the gravity of the provocation?

  46. The first part of the objective test requires the jury to assess the gravity of the provocative conduct. In making this assessment, the jury must take into account any relevant personal characteristics of the accused, as well as his or her circumstances (Stingel v R (1990) 171 CLR 312; Masciantonio v R (1994) 183 CLR 58; R v Kuster (2008) 21 VR 407).
  47. Depending on the case, the relevant circumstances and characteristics of the accused may include his or her age, sex, race, ethnicity, physical features, personal attributes, personal relationships or past history (Masciantonio v R (1994) 183 CLR 58; R v Abebe (2000) 1 VR 429; R v Curzon (2000) 1 VR 416; R v Thorpe (No 2) [1999] 2 VR 719; R v Leonboyer [2001] VSCA 149; R v Kumar (2002) 5 VR 193; R v McCullagh (No 3) [2007] VSCA 293).
  48. The jury may also take into account any mental instability or weakness of the accused (Stingel v R (1990) 171 CLR 312), but should not take into account his or her "exceptional excitability or pugnacity or ill-temper" (DPP v Camplin [1978] AC 705).
  49. The relevant circumstances may include the history between the accused and the deceased (R v Kumar (2002) 5 VR 193; Osland v R (1998) 197 CLR 316), or between the accused and third-parties (Green v R (1997) 191 CLR 334).
  50. The characteristics or attributes of an accused that may be taken into account when assessing the gravity of the provocation reflect features which are of a permanent, rather than a temporary or transient, nature (R v McCullagh (No 3) [2007] VSCA 293).
  51. However, such permanent characteristics or attributes will not always be relevant to an assessment of the gravity of the provocative conduct. To be relevant, those characteristics or attributes must bear upon an objective assessment of the gravity of the particular provocative conduct. For example, the accused’s mental instability would be relevant if the provocative conduct consisted of insults that the accused was mad, but would probably not be relevant if the provocation was completely unrelated to his or her mental condition (Stingel v R (1990) 171 CLR 312; R v McCullagh (No 3) [2007] VSCA 293).
  52. Where the accused is temporarily intoxicated, and the provocative conduct does not relate to that intoxication, his/her intoxication will not be relevant to an assessment of the gravity of the provocation (R v McCullagh (No 3) [2007] VSCA 293).
  53. The judge should identify all of the accused’s characteristics and circumstances relevant to the jury’s assessment of the gravity of the provocation, and describe any relevant background evidence, such as evidence of the relationship and history between the accused and the deceased, relationships with third parties and cultural matters (R v Kuster (2008) 21 VR 407).
  54. In assessing the gravity of provocative conduct, the judge (and jury) should take care not to unduly narrow the circumstances that should be taken into account (See R v Conway (2004) 149 A Crim R 206; R v Kumar (2002) 5 VR 193).
  55. As the jury are required to take the accused’s personal circumstances into account in assessing the gravity of the provocative conduct, it will be a misdirection to suggest that the jury is "entitled" to consider those circumstances (R v Curzon (2000) 1 VR 416).

    Could the ordinary person have lost control?

  56. Having assessed the gravity of the provocation, the jury must then determine whether provocation of that level of gravity could have caused an "ordinary person" to lose self-control and act in the way the accused did (Masciantonio v R (1994) 183 CLR 58).
  57. The "ordinary person" is not the "reasonable man" of the law of negligence (and of earlier provocation cases). He or she is a person capable of losing his or her self-control to the extent of intentionally wounding or killing another, when there is no need to do so for his or her own protection (Stingel v R (1990) 171 CLR 312. See also Johnson v R (1976) 136 CLR 619; Masciantonio v R (1994) 183 CLR 58; R v Abebe (2000) 1 VR 429).
  58. While all of the accused’s relevant characteristics and circumstances must be taken into account in assessing the gravity of the provocation (see above), the only factor that may be relevant when determining how the ordinary person could have reacted to provocation of that gravity is the accused’s age (in the sense of immaturity) (Masciantonio v R (1994) 183 CLR 58; Stingel v R (1990) 171 CLR 312).
  59. Thus, for an adult accused, the standard the jury must apply is simply the "power of self-control of the ordinary person". When the accused is a youth, the standard will be "the power of self control of an ordinary person of the accused’s age" (Masciantonio v R (1994) 183 CLR 58; Stingel v R (1990) 171 CLR 312; R v Thorpe (No 2) [1999] 2 VR 719).
  60. The law does not fix a point at which youth ceases to be relevant to the determination of the objective standard. The age of the accused should be incorporated into the test wherever it is open to the jury to consider that the accused is immature by reason of youthfulness (Stingel v R (1990) 171 CLR 312).
  61. Gender, senility, intoxication, medical condition and ethnic background have all been expressly identified as factors that should not be brought into consideration in the determination of this standard. This reflects the principle of equality before the law (Stingel v R (1990) 171 CLR 312; R v Curzon (2000) 1 VR 416; R v O’Neill [1982] VR 150; R v Gojanovic (No 2) [2007] VSCA 153; R v McCullagh (No 3) [2007] VSCA 293).
  62. Equally, the reduction of an offender’s capacity for self control by mental illness, or by any other considerations, will not be relevant to this aspect of the test (R v Conway (2004) 149 A Crim R 206).
  63. It should be made clear to the jury that the critical feature or attribute of the ordinary person against which the accused’s conduct is to be compared is his or her normal or ordinary powers of self-control (Masciantonio v R (1994) 183 CLR 58; R v Margach [2007] VSCA 110; R v McCullagh (No 3) [2007] VSCA 293).
  64. Jurors should not be directed to place themselves in "the accused's shoes as the embodiment of the ordinary person" to determine the possible effect of the provocation upon the ordinary person’s power of self-control. Such an instruction risks jurors substituting their own subjective standards for the objective standard of the test (Stingel v R (1990) 171 CLR 312).
  65. The judge should also not refer to whether an "ordinary person of the accused’s characteristics" could have lost control, as most of the accused’s characteristics are only relevant to determining the gravity of the provocation (R v Kuster (2008) 21 VR 407).

    The Ordinary Person "Could" Have Lost Control

  66. The objective test is whether the provocative conduct could have caused an ordinary person to lose self-control to the extent that the accused did. The jury need not be satisfied that this result would necessarily, or even probably, have followed (Stingel v R (1990) 171 CLR 312; Masciantonio v R (1994) 183 CLR 58).
  67. In this context "could" and "might" are synonymous. In directing a jury, it is acceptable to use "might" rather than "could" (preferably saying that "might" in this context means the same thing as "could") (Osland v R (1998) 197 CLR 316; Stingel v R (1990) 171 CLR 312; R v Thorpe (No 2) [1999] 2 VR 719).
  68. It may, in fact, be preferable to use "might" rather than "could", as there is less chance of a judge accidentally transposing the words "would" and "might" than there is in relation to the similar-sounding words "would" and "could". In addition, there is less chance that the jury will mishear what the judge says (see, e.g., R v Thorpe (No 2) [1999] 2 VR 719).
  69. The onus of proof is on the prosecution to disprove this element (see below). As the corollary of "could" is "would not" (rather than "could not"), this means that the prosecution must prove that an ordinary person would not have lost self-control and acted in the way the accused did (Masciantonio v R (1994) 183 CLR 58, R v Thorpe (No 2) [1999] 2 VR 719).
  70. Given the risk of confusion between the terms "could", "might" and "would", and the difficulties with the onus of proof in this area (see below), it can be helpful for a judge to explicitly direct the jury that for the prosecution to disprove that something "might" or "could" have happened, it must prove that it "would not" have happened (see, e.g., R v Abebe (2000) 1 VR 429).

    Could the Ordinary Person have "Done What the Accused Did"

  71. The objective test requires the jury to determine whether the provocative conduct could have caused an ordinary person to lose self-control and "act in the way in which the accused did" (Masciantonio v R (1994) 183 CLR 58; R v McCullagh (No 3) [2007] VSCA 293; Pollock v R (2010) 242 CLR 233).
  72. The phrase "act in the way in which the accused did" refers to the nature and extent — the kind and degree — of the reaction which the provocative conduct could have caused in an ordinary person .It does not refer to the precise physical form which that reaction might take, or the duration of the reaction (Masciantonio v R (1994) 183 CLR 58; R v Barrett (2007) 16 VR 240; R v McCullagh (No 3) [2007] VSCA 293; Pollock v R (2010) 242 CLR 233).
  73. Where it is alleged that the accused intentionally murdered the deceased, the jury will therefore need to determine whether the ordinary person could have formed an intention to kill or really seriously injure the victim in response to provocation of that gravity, and whether he or she could have acted upon that intention (Masciantonio v R (1994) 183 CLR 58).
  74. Where it is alleged that the accused recklessly murdered the deceased, the jury will need to determine whether the ordinary person could have acted with knowledge that someone would probably die or be really seriously injured.[2]
  75. The jury does not need to focus on matters such as whether the ordinary person could have adopted the means used by the accused to carry out his or her intention, or whether the ordinary person would have regained composure earlier than the accused did, or would have inflicted a lesser number of wounds (Masciantonio v R (1994) 183 CLR 58; R v Barrett (2007) 16 VR 240. See also Pollock v R (2010) 242 CLR 233).
  76. Care should be taken to avoid leading the jury to consider that the test involves assessing whether the ordinary person might have responded exactly as the accused did (R v McKeown [2006] VSCA 74; R v Gojanovic (No 2) [2007] VSCA 153).

    Proportionality

  77. There is no independent requirement that the retaliation should be proportionate to the provocation. Rather, that question is absorbed into the test directed to the effect of the provocation upon the ordinary person (Johnson v R (1976) 136 CLR 619; Masciantonio v R (1994) 183 CLR 58; R v McCullagh (No 3) [2007] VSCA 293; R v Kuster (2008) 21 VR 407).
  78. It is the function of the ordinary person test to determine the degree of provocation necessary to provide a defence to murder. It is accepted that there must be a high degree of provocation (Masciantonio v R (1994) 183 CLR 58).
  79. Thus, while the jury can be instructed to take into account the mode and extent of retaliation in applying the ordinary person test, it will be wrong to identify proportionality as a specific matter for defence counsel to establish, or for the prosecution to negative (Johnson v R (1976) 136 CLR 619; R v Ivanovic [2005] VSCA 238; R v McKeown [2006] VSCA 74; R v Margach [2007] VSCA 110; R v Barrett (2007) 16 VR 240; R v Gojanovic (No 2)[2007] VSCA 153; R v Hill [2007] VSCA 261; R v McCullagh (No 3) [2007] VSCA 293).
  80. Although it will not be a misdirection to refer to proportionality if it is made clear that it is not an essential or additional part of the test for provocation, it is generally undesirable to make a separate reference to proportionality when describing the elements of provocation (R v McCullagh (No 3) [2007] VSCA 293).

    Onus of Proof

  81. Once provocation is put in issue, the onus is on the prosecution to disprove at least one of its elements beyond reasonable doubt. If they fail to do so, the accused will be entitled to be acquitted of murder but convicted of manslaughter (as long as all the elements of murder have been satisfied) (Johnson v R (1976) 136 CLR 619; Moffa v R (1977) 138 CLR 601; R v Thorpe (No 2) [1999] 2 VR 719; R v Anderson (1997) 94 A Crim R 335).
  82. There are a number of ways in which a judge can express the onus of proof:
  83. The courts have acknowledged the notorious difficulty of explaining the law of provocation to the jury, and relating it to the facts, without inadvertently suggesting that an onus, however limited, lies on the accused (Moffa v R (1977) 138 CLR 601; R v Thorpe (No 2) [1999] 2 VR 719).
  84. It has therefore been suggested that it may be wise to tell the jury that:

    Judge Must Relate the Law to the Facts

  85. The judge must explain to the jury how the issue of provocation has arisen on the facts, and how it might be excluded (Pollock v R (2010) 242 CLR 233).
  86. Where different versions of the facts have been alleged, the judge must explain how provocation arises on each version, and how it might be excluded on each (Pollock v R (2010) 242 CLR 233).
  87. Care must be taken to identify the real issues in the case, and to relate the directions of law to those issues (Pollock v R (2010) 242 CLR 233).

    When to Charge the Jury about Provocation

  88. The judge must direct the jury about provocation if the defence identify that provocation is in issue or if there are substantial and compelling reasons for giving a direction on provocation in the absence of any request (Jury Directions Act 2015 ss11 - 16). See Directions under Jury Directions Act 2015.
  89. At common law, the judge was required to leave provocation to the jury if there was material in the evidence which was "capable of constituting provocation" (Stingel v R (1990) 171 CLR 312; Masciantonio v R (1994) 183 CLR 58).
  90. More precisely, the trial judge was required to leave provocation to the jury if:
  91. These requirements took into account the fact that:
  92. At common law, it was acknowledged that there were no clear objective criteria for the judge to apply when determining this issue (R v Kumar (2002) 5 VR 193).
  93. However, it is clear that in deciding whether provocation should be left to the jury, the trial judge was applying a legal test. S/he was not passing judgment on the morality of the conduct (R v Conway (2004) 149 A Crim R 206).
  94. The judge’s assessment was made by reference to the full legal test for provocation (see above). This is the meaning of the phrase “unprovoked in the relevant sense” (R v Parsons (2000) 1 VR 161).
  95. At common law, judges needed to be alive to the danger, in considering the objective test, that s/he would substitute his/her own assessment of the facts for the view of the facts most favourable to the accused (R v Kumar (2002) 5 VR 193).

    Obligation to leave provocation to jury

  96. The common law stated that trial judges should lean towards leaving provocation to the jury if s/he could. S/he should be reluctant to withdraw from the jury any issue that should properly be left to them (Masciantonio v R (1994) 183 CLR 58; R v Tuncay [1998] 2 VR 19; R v Kuster (2008) 21 VR 407).
  97. This tendency to leave provocation to the jury also reflects:
  98. A trial judge was encouraged to be particularly cautious about withdrawing provocation from the jury where there was evidence of provocative conduct and loss of self control, and the objective test was the only real issue (Masciantonio v R (1994) 183 CLR 58; R v Kumar (2002) 5 VR 193. See also the application of the test in R v Yasso (No 2) (2004) 10 VR 466).
  99. These principles must be examined in light of Jury Directions Act 2015 Part 3, and the increased focus on the importance of forensic decision making of counsel.

    The judge’s duty was independent of defence counsel’s attitude

  100. At common law, if provocation was open on the evidence, the trial judge was required to leave it to the jury, no matter what course is followed by defence counsel, and regardless of whether it was actually raised during the trial (Pollock v R (2010) 242 CLR 233; R v Thorpe [1999] 1 VR 326; Masciantonio v R (1994) 183 CLR 58; Pemble v R (1971) 124 CLR 107; R v Hopper [1915] 2 KB 431).
  101. It did not matter if the judge or defence counsel perceived that the accused would suffer a forensic disadvantage if provocation was left to the jury. If the partial defence is open on the evidence, the judge was required to charge the jury (R v Thorpe [1999] 1 VR 326).
  102. This principle is heavily qualified by Part 3 of the Jury Directions Act 2015. Under the Act, judges must not give a direction that has not been sought unless there are substantial and compelling reasons to do so. This test raised the bar compared to the common law position on when directions on defences not sought are required. See Directions under Jury Directions Act 2015.

     

    Notes

[1] Note, however, in R v Thorpe [1999] 1 VR 326 and R v Yasso (No.2)(2004) 10 VR 466, Charles JA considered that it was not settled that provocation is excluded where the provocative conduct is "self-induced," in the sense considered above.

[2] While provocation is generally discussed in the context of intentional killings, the defence may be raised where reckless murder is in issue (R v Cufley (1983) 10 A Crim R 39).

[3] It has been stated that a judge who takes the issue away from the jury assumes a "grave responsibility" (Masciantonio v R (1994) 183 CLR 58 per McHugh J; R v Conway (2004) 149 A Crim R 206; R v Kumar (2002) 5 VR 193).

Last updated: 29 June 2015

In This Section

8.12.1 - Charge: Provocation

8.12.2 - Checklist: Provocation

See Also

Victorian Criminal Charge Book

Part 1: Preliminary Direction

1.1 – Introductory Remarks

1.2 – Jury Empanelment

1.3 – Selecting a Foreperson

1.4 – The Role of Judge and Jury

1.5 – Decide Solely on the Evidence

1.6 – Assessing Witnesses

1.7 – Onus and Standard of Proof

1.8 - Separate Consideration

1.9 - Alternative verdicts

1.10 – Trial Procedure

1.11 - Consolidated preliminary directions

Part 2: Directions in Running

2.1 - Views

2.2 - Providing Documents to the Jury

2.3 – Other Procedures for Taking Evidence

2.4 – Unavailable witnesses

2.5 – Witness invoking Evidence Act 2008 s128

Part 3: Final Directions

3.1 - Directions Under Jury Directions Act 2015

3.2 - Overview of Final Directions

3.3 - Review of the Role of the Judge and Jury

3.4 - Review of the Requirement to Decide Solely on the Evidence

3.5 - Review of the Assessment of Witnesses

3.6 - Circumstantial Evidence and Inferences

3.7 - Review of the Onus and Standard of Proof

3.8 - Review of Separate Consideration

3.9 - Judge’s Summing Up on Issues and Evidence

3.10 - Alternative Verdicts

3.11 - Unanimous Verdicts and Extended Jury Unanimity

3.12 - Taking Verdicts

3.13 - Perseverance and Majority Verdict Directions

3.14 - Intermediaries and ground rules explained

3.15 - Concluding Remarks

3.16 - Consolidated final directions

Part 4: Evidentiary Directions

4.1 - The Accused as a Witness

4.2 - Child Witnesses

4.3 - Character Evidence

4.4 - Prosecution Witness's Motive to Lie

4.5 - Confessions and Admissions

4.6 - Incriminating Conduct (Post Offence Lies and Conduct)

4.7 - Corroboration (General Principles)

4.8 - Delayed Complaint

4.9 - Distress

4.10 - Prosecution Failure to Call or Question Witnesses

4.11 - Defence Failure to Call Witnesses

4.12 - Failure to Challenge Evidence (Browne v Dunn)

4.13 - Identification Evidence

4.14 - Opinion Evidence

4.15 - Previous Representations (Hearsay, Recent Complaint and Prior Statements)

4.16 - Silence in Response to People in Authority

4.17 - Silence in Response to Equal Parties

4.18 - Tendency Evidence

4.19 - Coincidence Evidence

4.20 - Other forms of other misconduct evidence

4.21 - Unfavourable Witnesses

4.22 - Unreliable Evidence Warning

4.23 - Criminally Concerned Witness Warnings

4.24 - Prison Informer Warnings

4.25 - Word Against Word Cases

4.26 - Differences in a Complainant’s Account

4.27 - Alibi

Part 5: Complicity

5.1 - Overview

5.2 - Statutory Complicity (From 1/11/14)

5.3 - Joint Criminal Enterprise (Pre-1/11/14)

5.4 - Extended Common Purpose (Pre-1/11/14)

5.5 - Aiding, Abetting, Counselling or Procuring (Pre-1/11/14)

5.6 - Assist Offender

5.7 – Commonwealth Complicity (s 11.2)

5.8 – Commonwealth Joint Commission (s 11.2A)

5.9 - Innocent Agent (Victorian Offences)

5.10 - Commission by Proxy (Commonwealth offences)

Part 6: Conspiracy, Incitement and Attempts

6.1 - Conspiracy to Commit an Offence (Victoria)

6.2 - Conspiracy (Commonwealth)

6.3 - Incitement (Victoria)

6.4 - Attempt (Victoria)

Part 7: Victorian Offences

7.1 - General Directions

7.2 - Homicide

7.3 - Sexual Offences

7.4 - Other Offences Against the Person

7.5 - Dishonesty and Property Offences

7.6 - Drug Offences

7.7 – Occupational Health and Safety

7.8 - Offences against justice

Part 8: Victorian Defences

8.1 - Statutory Self-Defence (From 1/11/14)

8.2 - Statutory Self-Defence (Pre - 1/11/14) and Defensive Homicide

8.3 - Common Law Self-Defence

8.4 - Mental Impairment

8.5 - Statutory Intoxication (From 1/11/14)

8.6 - Statutory Intoxication (23/11/05 - 31/10/14)

8.7 - Common Law Intoxication

8.8 - Automatism

8.9 - Statutory Duress (From 1/11/14)

8.10 - Statutory Duress (23/11/05 - 31/10/14)

8.11 - Common Law Duress

8.13 - Suicide Pact

8.14 - Powers of arrest

8.15 - Police search and seizure powers without a warrant

Part 9: Commonwealth Offences

9.1 - Commonwealth Drug Offences

9.2 - People Smuggling (Basic Offence)

9.3 - People Smuggling (5 or More People)

9.4 - Use of carriage service for child pornography material

Part 10: Unfitness to Stand Trial

10.1 – Investigations into Unfitness to Stand Trial

10.2 – Special Hearings