The Victorian Law Reform Commission in Defences to Homicide, Final Report (2004) has recommended that “the partial defence of provocation should be abolished” and that “the partial excuse of diminished responsibility should not be introduced in Victoria”. “Gender bias” in the operation of these “partial defences” was one of the reasons given for both of these recommendations. Do you think the “gender bias”argument justifies the Commission’s recommendations?
Introduction
Provocation is one of the most common defence raise by the accused in domestic homicide cases. When juries accept the defence of provocation, it can return a verdict of manslaughter instead of murder. The trend in recent domestic homicide cases[1] has reflected juries are less sympathetic towards the accused and likely to reject the provocation as partial defence. Likewise the Victorian Government has also taken a stringent approach towards those defendants who invoked provocation as a tool to mitigate their sentence. As discussed in the Final Report of The Victoria Law Reform Commission in Defence to Homicide[2], they recommended abolishing the partial defence of provocation and gender bias is one of the main reasons that drive the government’s recommendation. Subjective or objective test? The modern theme of provocation is generally justified on the basis that the accused could not properly control his/her behaviour due to the aggravation evolved by the victim, and that an ordinary person might react similar in the position of the accused. In order to rely on the provocation as defence, three main requirements[3] must be established. Firstly, the act of the accused must be the result of the loss of self control. Therefore, it must be assessed by reference to relevant characteristic of the accused.
Men’s World
The loss of self-control under the defence of provocation may cause by the combination of fear and anger, anger is usually regraded as the primary characteristic of provocation[4]. In last few decades, the defence of provocation in majority of domestic homicide cases[5] that are used by men is that they were provoked by their partners’ suspected or actual infidelity, and that the women leaving or attempting to leave them. This profoundly helps men to apply the test of provocation easier than women. Therefore, people argued that the provocation defence is framed to deal with male and hence it is gender bias and unjust.[6]
Women’s world
Women in situations of domestic homicide continued to be denied access to the defence of provocation[7]. In order to raise such a defence successfully, it is essential to show that the killing was a result of loss of self control[8]. For instance, in R v R(1981)[9], the accused has killed her husband cold-bloodedly while he was falling asleep. Prima facie, it is hard for the accused to establish that her killing arise due to her loss of self-control, therefore it is very likely that she will be excluded from the defence of provocation.
Although many people argued that male are more likely to raise the defence of provocation, according to the NSW Judicial Commission[10], it demonstrates that women were successful in 100% of cases in which provocation was argued. Whereas, the acceptance rate for male is only 60%. The amendments of Crimes Act 1900(NSW)[11] removed the requirement of suddenness. As a result, the provoking conduct of the deceased can have occurred immediately before the act or at any previous time. This has been confirmed by Gleeson CJ in R v Muy Ky Chhay(1994)[12] where he states that a specific triggering incident is no longer necessary. Unlike the demonstration from Masciantonio v The Queen (1995)[13], Mason J in Van Den Heok v The Queen (1986)[14] states that the loss of self-control may be produced by fear or panic rather than anger. Since majority of the women who kill their partners are victims of domestic violence[15], their fear and panic of domestic violence subsequently cause the loss of self-control.
To abolish or not to abolish, that is the question
While death penalty is no long exist in Australia, a more flexible sentencing regime for murder has been developed. Scholars argued that provocation as a defence allows many men to be excused for killing their female partners out of jealousy or after a confession of adultery. Contrary, cases have also proven that women in domestic homicide can also successfully invoked provocation as defence[16].
Some people recommended the abolition of defence of provocation because they believe that it operates to excuse males’ behaviour. However, this recommendation could be rebutted by the decision of (1990)[17]. In this case, although the accused is male, gender has been ignored in applying the objective ‘ordinary person’ test to the question of loss of self-control[18]. This demonstrates that the aim of the defence of provocation is not to condone that person’s actions, but recognises that certain provoked killings, committed as a result of a loss of self-control which does not fall within the worst category of unlawful killing and should be viewed by the law with a degree of compassion[19]. Unlike the comment made by Gibbs J in Moffa v The Queen(1997)[20], Mason J in the same case believed that the sentence of the accused should be mitigated because the actions and statements made by the defendant’s wife is so provocative that an ordinary person may also have lose self-control in that circumstances. Therefore, defence of provocation is incredibly important and hence it should be retain.
Conclusion
As discussed in this paper, whether provocation as a defence can be raised successfully, circumstantial evidence is very vital for both men and women. As a result, both men and women can take advantage from the defence of provocation. Therefore, it is important to keep the distinction between unprovoked and provoked killings. Thus, provocation is an important defence for both men and women and it should not be abolished.
Credit:ivythesis.typepad.com
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