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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
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
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,
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
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
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.
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.
In last few decades, the defence of provocation
in majority of domestic homicide
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.
Women in situations of domestic homicide
continued to be denied access to the defence of provocation.
In order to raise such a defence successfully, it is essential to show that the
killing was a result of loss of self control.
For instance, in R v R(1981),
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
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)
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)
where he states that a specific triggering incident is no longer necessary.
Unlike the demonstration from
Masciantonio v The Queen (1995),
Mason J in Van Den Heok v The Queen (1986)
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,
their fear and panic of domestic violence subsequently cause the loss of
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.
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
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.
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
Unlike the comment made by Gibbs J in Moffa v The
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.
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.
& Brown et al,
Criminal Laws: Materials and Commentary on Criminal Law and Process in New South
Wales, (3rd edition, Federation Press, 2001)
Judicial Commission of New South Wales Sentenced Homicides in New South Wales
1990-1993: A Legal and Sociological Study, 1995
Z Rathus Rougher: Women and Criminal Justice System (2nd ed, Women’s
Health Policy Unit, Queensland Health) at 91
New South Wales Law Reform Comission: Report 83: Partial defences to
murder: provocation and infanticide, 1997
Davis (1998) (NSWCCA)
Masciantonio v The Queen
(1995) 183 CLR 58
Moffa v The Queen(1977)138
Osland v The
Queen (1998) (1998) 197 CLR 316
The Queen v R (1981)
28 SASR 321
R v Allwood (1975)
WL 150575 (VSC)
R v Muy Ky Chhay(1994)
72 A Crim R1
R v R
(1981) 28 SASR 321
171 CLR 312 (HC)
Van Den Heok v The Queen
(1986) 161 CLR 158
VLRC, Defences to Homicide: Final Report, 2004
Erin Cameron, “Woman’s place is in the
struggle: Australia’s ‘honour’ killing”, Green Left Weekly, January 26, 2005.
< http://www.greenleft.org.au/back/2005/612/612p8b.htm >
Simon Johnason, ‘The Age’ news and information site in
Victoria, 13 December, 2004
Helen Brown, ‘Provocation as a defence to murder: to abolish or to reform?’,
(1999) 12 Australian Feminist Law Jounal 137
Crimes Act 1958
Osland v The Queen (1998) 197 CLR 316 is one of the example of the
rent cases which juries are less sympathetic towards the accused. In this
paper, it will demonstrate more cases to support this argument.
VLRC, Defences to Homicide: Final Report,
Crimes Act1900 (NSW) s 23(2), since the legislation of
NSW and Victoria are very similar. R v Lees  NSWCCA 301 (29
September 1999) demonstrates the subject and objective test of the defence
Masciantonio v The Queen (1995) 183 CLR 58.
R v Allwood (1975)
WL 150575 (VSC) and
Moffa v The Queen(1977)138
VLRC, Defences to Homicide: Final Report,
Law Reform Commission of Victoria, Homicide (Report 40,
1991) at paras 164-169
This has been demonstrated previously in the paper (in
R v R (1981) 28 SASR
Judicial Commission of New South Wales Sentenced Homicides in New South
Wales 1990-1993: A Legal and Sociological Study, 1995
Crimes Act 1900 (NSW), s23(3)(b)
(1994) 72 A Crim R1 at 13-14
(1995) 183 CLR 58
(1986) 161 CLR 158 at 168
Victoria Law Reform Commission Defences to Homicide: Final Report p.29.
Women were successful in 100% of cases in which
provocation was argued (demonstrated in para 9).
(1990) 171 CLR 312 (HC)
Brown et al, Criminal Laws: Materials and Commentary on Criminal
Law and Process in New South Wales, (3rd edition, Federation
New South Wales Law Reform Comission: Report 83: Partial defences
to murder: provocation and infanticide, 1997
(1997) 138 CLR 601
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