PROVOCATION AS A DEFENCE TO MURDER - AUSTRALIA

• NCJ Number: 62008
• Author(s): ANON
• Date Published: 1979
• Length: 30 pages
• Corporate Author: Australia Law Reform Cmssn
• Sale Source: National Institute of Justice/
• Publication Type: Survey (Cross-Cultural)
• Language: English
• Country: Australia
• Note: WORKING PAPER NO 6

Annotation

THIS WORKING PAPER REVIEWS COMMON, STATUTORY, CASE, AND MODEL LAW AND WORKING PAPERS FROM SEVERAL COUNTRIES IN ORDER TO EXAMINE THE NEED TO REFORM VICTORIA, AUSTRALIA'S LAW ON PROVOCATION AS A DEFENSE TO A CHARGE OF MURDER.

Abstract

CURRENT VICTORIAN LAW ON PROVOCATION IS GOVERNED BY COMMON LAW, WHICH FOR CENTURIES HAS ACCEPTED THE PROVOCATION DEFENSE. THIS DEFENSE DOES NOT RESULT, IN ACQUITTAL, BUT IN A REDUCTION FROM A CONVICTION OF MURDER TO ONE OF MANSLAUGHTER, WITH A CORRESPONDING SENTENCE REDUCTION. IN COMMON LAW, PROVOCATION MEANS SOMETHING WHICH INCITES ANGER AND OVERCOMES A PERSON'S SELF-CONTROL AND REASON. STARTING IN THE LAST PART OF THE 19TH CENTURY, PROVOCATION WAS SUBJECTED TO AN EXTERNAL OBJECTIVE TEST: WHETHER A REASONABLE OR ORDINARY PERSON WOULD ACT IN THE SAME WAY AS THE ACCUSED, GIVEN THE SAME PROVOCATION. THE 1946 HOLMES CASE IN ENGLAND ESTABLISHED THE COURT'S POWER TO APPLY THIS STANDARD. ENGLAND'S 1957 HOMICIDE ACT GAVE THE JURY THIS POWER. AUSTRALIAN AND NEW ZEALAND LAWS HAVE ALSO INCORPORATED THIS STANDARD. NEVERTHELESS, THIS CONCEPT STILL LACKS DEFINITION OR GUIDELINES. IRELAND, ENGLAND, THE U.S., AND SOUTH AUSTRALIA HAVE ALL EXPERIENCED ATTEMPTS TO ELIMINATE THE OBJECTIVE TEST OF REASONABLENESS CIRCUMSTANCES AND THE ACCUSED PERSON'S VIEWPOINT. VICTORIA SHOULD SIMILARLY TRY TO REFORM ITS CURRENT LAW. FIVE POSSIBLE OPTIONS RECOMMENDED FOR CONSIDERATION ARE (1) TO ABOLISH THE OBJECTIVE TEST OF REASONABLENESS WITH NO OTHER LAW REFORM, (2) TO ABOLISH THE OBJECTIVE TEST AND FRAME A STATUTORY LAW OF PROVOCATION; (3) TO ADOPT A LAW SIMILAR TO THE U.S. AMERICAN BAR ASSOCIATION'S MODEL PENAL CODE WHICH ELIMINATES REFERENCES TO PROVOCATION AND FOCUSES ON THE ACCUSED PERSON'S MENTAL STATE AND THE REASONS FOR IT; (4) TO ADOPT PROVISIONS SIMILAR TO THOSE IN THE ENGLISH WORKING PAPER WHICH EXAMINES THE LOSS OF SELF-CONTROL FROM THE VIEWPOINT OF THE ACCUSED; AND (5) TO ADOPT THE SOUTH AUSTRALIAN RECOMMENDATION TO ABOLISH THE OBJECTIVE TEST WHILE GIVING THE JURY A WIDE RANGE OF ALTERNATIVE VERDICTS BE BASED ON THE JURY'S EVALUATION OF THE ACCUSED'S SUBJECTIVE CIRCUMSTANCES AND STATE OF MIND. FOOTNOTES AND REFERENCES ARE INCLUDED. (CFW)