CRIMINAL LAW AND PROCEDURE LWB232. WEEK 8 PROVOCATION. Provocation: Rationales for the Excuse. . Provocation developed: as a concession to human frailty, with some "contributory fault" on the part of the victim;
Both at common law and under the QCC, broadly 3 elements:
1. A provocative incident
2. Subjective loss of self control
3. Objective assessment of accused’s reactions against those of an “ordinary person”.
“any wrongful act or insult”
TAKING provocation of THAT gravity (that is, high degree/very grave provocation or not very grave/trivial provocation or somewhere else on the scale) NOW apply the second tier of the test.
APPLYING THE ORDINARY PERSON OBJECTIVE TEST
Could PROVOCATION OF THAT GRAVITY cause an ORDINARY PERSON who has NO other characteristic than the accused's age (re immaturity) to have lost self control to the NATURE AND EXTENT (re proportionality - kind and degree of response) that the accused did?PROVOCATION: STINGEL TWO TIERED TEST (2)
NB: Issue here re response
What LEVEL of self control does the ORDINARY PERSON have?
(OR was the accused still acting under the prov?)
“tended to interact and to reflect a unity of underlying notions”.
4 JJ (Brennan CJ, Toohey, McHugh JJ and Smart J): provocation should have gone to jury.
5 JJ (Trial J, Priestly JA, Ireland J, Gummow and Kirby JJ): murder conviction inevitable; standard of self control not met.
“Just differences of opinion whether evidence
fit to go to jury on provocation”
“...the ‘ordinary person’ in Australian society today is not so homophonic as to respond to a non-violent sexual advance by a homosexual person as to form an intent to kill or to inflict grievous bodily harm.”
“In the present case, this translates to a person with the minimum powers of self-control of an ordinary person who is subjected to a sexual advance that is aggravated because of the accused's special sensitivity to a history of violence and sexual assault within his family.”
Per McHugh J at 682
“...any jury, acting reasonably, could not have failed to be satisfied beyond reasonable doubt that the nature of the conduct of the deceased was insufficient to deprive any hypothetical, ordinary 22-year-old male in the position of the appellant of the power of self-control to the extent that he would have formed an intent to kill or cause grievous bodily harm upon the deceased.
Per Gummow J in Green at 697
Where accused provokes victim with a pre-meditated intention to kill/cause GBH.
Where prov need not be directed at accused.