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8.12.1 - Charge: Provocation

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[This charge should only be given if:

The charge should be given immediately after directing the jury about the other elements of murder, or where self defence is in issue, after directing the jury on self defence.]

Introduction

In this case there is evidence that raises the issue of provocation. I must therefore give you some directions about this form of lawful excuse.

The concept of provocation was introduced into the law a long time ago as a concession to human frailty. It is based on the recognition that in certain provocative situations, a person of ordinary self-control can lose control over their emotions and commit the extraordinary act of intentionally killing the person responsible for the provocation.

You only need to consider provocation if you are satisfied that the prosecution has proven all of the other elements of murder beyond reasonable doubt [and you are satisfied that NOA was not acting in self defence].

According to the law, even if the prosecution has proven all of these matters, the accused will be guilty of manslaughter, and not murder, unless the prosecution can prove, beyond reasonable doubt, that the accused was not acting under provocation.

There are three ways in which the prosecution can do this. I will list them for you, and then explain each one in more detail.

First, the prosecution can prove that the deceased did not act provocatively.[1]

Secondly, the prosecution can prove that the accused did not kill the deceased while deprived of self-control by the deceased’s provocative conduct.

Thirdly, the prosecution can prove that the deceased’s conduct would not have caused an ordinary person to lose self-control and act in the way the accused did.

The prosecution does not have to prove all of these matters. The prosecution will disprove provocation if it proves any one of them beyond reasonable doubt. In such a case, if you have also found that all the other elements of murder have been proven, you should convict the accused of murder.

However, if the prosecution cannot prove at least one of these matters, then you must not convict the accused of murder. You should instead convict him/her of manslaughter.

Onus of Proof

I want to emphasise that it is not for the accused to prove that s/he was provoked, but for the prosecution to prove that s/he was not.

Unfortunately, it is sometimes difficult to give directions about provocation in a way which completely avoids any suggestion that the accused has to prove something. If anything I say suggests to you that the accused must prove some aspect of this defence, disregard that suggestion. It is for the prosecution to prove that the accused was not provoked.

I will now explain the ways in which the prosecution can prove this in more detail.

Provocative Conduct

The first way in which the prosecution can prove that the accused was not provoked in law is by proving that the deceased did not act provocatively.

While this aspect of provocation relates to what the deceased did and said, you must determine whether his/her conduct was provocative by considering its possible impact on the accused. The deceased’s conduct will have been provocative if it was capable of causing the accused to lose self-control, and as a result to form an intention to kill or really seriously injure the deceased, and to act upon that intention.

If the prosecution can prove that NOV did not say or do anything that could have caused NOA to lose self-control in this way, and to this extent, then they will have proven that NOA was not provoked in law.[2]

If the deceased may be implicated in the provocative conduct of a third-party, add the following shaded section

In determining whether NOV acted provocatively, you must of course focus on NOV’s own conduct. However, in this case you may also need to take into consideration the evidence you have heard of NO3P’s[3] conduct.

NO3P’s conduct will be relevant if you find that it is reasonably possible that NOV [adopted / assented to / participated in / associated himself/herself with] that conduct. In such circumstances, for the purpose of this issue you can treat NO3P’s conduct as if it was NOV’s own conduct.

In determining whether NOV acted provocatively in the sense I have described, you must consider all the evidence of what NOV said and did [at the time of his/her final encounter with NOA].[4]

You must also take into account any evidence which shows what this conduct might have meant to NOA. Such evidence places the incident in the context necessary for you to determine the effect that conduct was capable of having on NOA.

In this case there was evidence [describe evidence of any words or conduct by NOV (or a relevant third party) which may be relied upon as provocation].[5]

The evidence relevant to the possible impact of NOV’s conduct on NOA was [describe relevant background evidence and/or arguments, including evidence of the relationship and history between the accused and the deceased, relationships with third-parties and cultural matters].

If "self-induced" provocation is in issue, add the following shaded section

You have heard evidence of NOA’s conduct prior to NOV saying and doing the things that I have described. [Identify evidence relating to the accused’s provocative conduct.] This evidence is relevant because the law says that NOV will not have acted provocatively if his/her conduct was itself provoked by the accused’s conduct, and the deceased’s response did not go beyond the reasonably predictable response of a person in his/her position.

Remember, it is for the prosecution to prove that NOA was not provoked. If you are satisfied beyond reasonable doubt that NOV did not say or do anything that could have provoked NOA to lose self control, and as a result to form and act upon an intention to kill or seriously injure NOV, then NOA will not have been provoked in law. If you are also satisfied that all the other elements of murder have been proven, you should convict NOA of murder.

However, if you consider there is a reasonable possibility that NOV did act provocatively in the sense I have described, then provocation will remain an issue, and you will need to consider the next matter.

Killing While Deprived of Self Control

The second way in which the prosecution can prove that the accused was not provoked is by proving that s/he did not kill the deceased while deprived of self-control by the deceased’s provocative conduct.[6] This aspect of provocation relates to the accused’s state of mind.

The prosecution can disprove this element of provocation by proving beyond reasonable doubt that the accused did not lose self control at all. That is, s/he retained full control over his/her emotions when s/he formed and acted upon the intention to kill or seriously injure the deceased.

If there is evidence suggesting a "cooling off period", add the following shaded section

Even if you find that the deceased’s conduct might have caused the accused to lose self-control, the prosecution can disprove this element of provocation by proving that, at the time s/he killed the deceased, the accused had regained self-control.

In this case, it is possible that this happened in the alleged period between NOV [describe provocative conduct] and his/her death. [Describe evidence of delay between provocation and killing].

However, the mere fact that there may have been a delay between the deceased’s provocative conduct and the accused’s response does not mean that provocation will have been disproved. The accused may still have been out of control despite such a delay.

Such a delay will, however, clearly be relevant to your determination of whether NOA was out of control when s/he killed NOV. It is possible that you will find that s/he had "cooled off" during that period of time, and was no longer deprived of self-control. Alternatively, you may find that s/he remained out of control for the entire period. This is a question of fact for you to determine.

In considering whether NOA might have killed NOV while deprived of self-control by NOV’s provocative conduct, you must take into account all of the evidence you considered when determining whether or not NOV had acted provocatively. This includes the evidence of NOV’s conduct, and the evidence concerning the possible impact of that conduct on NOA. The evidence of particular significance to NOA’s loss of self-control was [identify evidence of particular relevance to this issue, including any direct evidence of loss of control at the time of the killing.]

If, upon consideration of all of the evidence, you are satisfied that NOA did not kill NOV while deprived of self-control by NOV’s provocative conduct, then the prosecution will have disproven provocation. If you are also satisfied that all the elements of murder have been proven, you should convict NOA of that offence.

Objective Element

The third way in which the prosecution can prove that the accused was not provoked is by proving that the deceased’s conduct would not have caused an ordinary person to lose self-control and act in the way the accused did. This reflects the minimum standard of self-control the law requires of us all.

There are two stages to determining whether the ordinary person would not have lost self-control and acted in the way the accused did. First, you must assess the gravity or seriousness of the deceased’s conduct. Then you need to determine whether provocation of that gravity would not have caused an ordinary person to lose self-control and act like the accused.

Gravity of the Provocation

The law says that you must assess the gravity of the deceased’s conduct from the viewpoint of the accused. That is, you have to take into account NOA’s personal characteristics and circumstances, such as his/her age, sex and race, when determining how grave that conduct was. This is because conduct which might not be insulting or hurtful to one person might be extremely insulting or hurtful to another because of such matters.

In this case, the characteristics and circumstances that you must take into account when assessing the gravity of NOV’s conduct include [insert details of the accused’s relevant characteristics and circumstances, such as his/her age, sex, race, ethnicity, physical features, personal attributes, personal relationships or past history].

Ordinary Person

Having assessed the gravity of the deceased’s conduct, you must then determine whether provocation of that gravity might have caused an ordinary person to lose self-control and act in the way the accused did.

By "act in the way the accused did", I mean form an intention to kill or really seriously injure the deceased, and act on that intention.[7] You do not need to be concerned with whether or not the ordinary person might have responded in precisely the way that you find the accused did.

The prosecution will therefore disprove provocation if it proves that provocation of that gravity would not have caused an ordinary person to lose self-control and act in the way the accused did. It is important to note that what the prosecution must prove here is that the ordinary person "would not" have lost self-control and acted in that way. They will not have proven this if you find that the ordinary person "could" or "might" have acted like the accused.

Person with ordinary powers of self control

In deciding whether this has been proven, you need to consider how the ordinary person, with ordinary powers of self-control, might have responded to NOV’s conduct. You must determine whether provocation of that gravity could have led such a person to form an intention to kill or really seriously injure NOV, and to act upon that intention.

It is for you to determine how the ordinary person, with "ordinary powers of self control", might have acted in such circumstances. You must determine how a hypothetical ordinary, sober person, who represents a standard that applies to the whole community, might have reacted to provocation of that gravity.

If the case involves an adult accused, add the following shaded section

Unlike your assessment of the gravity of the deceased’s conduct, in making this determination you must not take the accused’s personal characteristics or circumstances into account. You must simply determine how the ordinary person, with a normal adult’s powers of self-control, might have acted.

If the case involves a youthful accused, add the following shaded section

Unlike your assessment of the gravity of the deceased’s conduct, in making this determination the only one of the accused’s characteristics or circumstances you may take into account is his/her age. You must determine how the ordinary [insert the accused’s age at the time of the offence] year-old, with the powers of self-control of a person with the maturity or immaturity that you consider goes with that age, might have acted.

In this case [insert relevant arguments and/or evidence].

If the prosecution can prove that the ordinary person would not have responded to provocation that was as grave as that committed by NOV, by losing self control and forming and acting upon the intention I have described, then the prosecution will have disproven provocation.

Summary

To summarise, if you decide that all the other elements of murder have been proven beyond reasonable doubt, you must find NOA not guilty of murder and guilty of manslaughter instead, unless the prosecution prove that s/he was not acting under provocation.

There are three ways in which the prosecution can prove this:

If you find that the prosecution has proven any of these matters beyond reasonable doubt, and has also proven all the other elements of murder, then you must convict the accused of murder.

However, if you find that all the other elements of murder have been proven, but you are not satisfied that the prosecution has proven at least one of these three matters beyond reasonable doubt, then you must convict the accused of manslaughter.

 

Notes

[1] If the provocative conduct did not emanate from the deceased, but it is alleged that the accused mistakenly believed that it did, this charge will need to be modified accordingly.

[2] If it is possible that the deceased did not commit the provocative conduct, but the accused mistakenly believed that s/he did, this section will need to be modified. See Provocation for further information.

[3] Name of Third Party.

[4] If relevant, refer also to third parties whose conduct was "adopted" etc. by the deceased.

[5] Strictly, only evidence capable of constituting provocation should be summarised here. Evidence of "historic conduct", or conduct in the absence of the accused, should be summarised as background evidence. Where relevant, describe any evidence that NOV "adopted" etc. a third party’s conduct.

[6] If there is an issue about the accused’s mistaken belief about the victim’s conduct, this aspect of the charge will require further elaboration.

[7] This aspect of the charge will need to be amended if provocation is used in relation to reckless murder rather than intentional murder.

Last updated: 12 December 2007

See Also

8.12 - Provocation

8.12.2 - Checklist: Provocation