Defences: Provocation

Overview

In this section, we will be examining the defence of provocation. It is impossible to understand the defence and its present limitations without an appreciation of its historical context. The notion of loss of self control and the ordinary person test will be critically examined, with a particular focus on the availability of the defence to women and cultural minorities who kill in response to provocation.

Conceptual Distinctions: Justification and Excuses in the Criminal Law

Where the defendant kills another in Self-Defence the law treats the killing as justifiable - self defence operates as a complete defence to offences against the person such as assault and murder. Where the defendant kills in response to provocation, the law allows a partial excuse which reduces the offence from murder to manslaughter. This is a recognition by the law that a person who kills in the face of provocation is less culpable; while the law will not condone killing in these circumstances, the courts, "as a concession to human frailty", will admit provocation as a partial excuse or qualified defence.

The Historical Development of Provocation

The nature and role of provocation is best understood in its historical context. The early criminal law sought to distinguish between heinous, wicked killings and those which were less culpable. Murder was reserved for the most serious type of killings; and the common law required proof of malice aforethought; malice indicating an evil intent and aforethought connoting premeditation. Less culpable killings, deserving a lesser penalty, included those which were committed in the heat of the moment in response to an act of provocation. The early law mitigated the punishment because of the unpremeditated nature of the killing. The evolution of provocation as a defence, rather than merely a mitigating factor, emerged in the 17th and 18th century. It must be recalled that this was an epoch where insults or attracks upon honour were expected to be avenged with resort to lethal weapons: "the readiness with which all classes resorted to lethal weapons to assert their rights, or to avenge any insult real or fancied, gave abundant opportunity for elaborating the distinctions between various kinds of homicide": Holdsworth, History of English Law, vol 8 at 302. The need to draw such distinctions followed from the fact that murder at this time was a capital felony. The defendant could escape capital punishment only if he could establish lack of malice aforethought. Manslaughter was only available where the killing had occured "suddenly", in "hot blood" in response to an act of provocation by the deceased.

The early decisions sought to identify the fact situations where the defence could operate: see eg Mawgridge (1707) 84 ER 1107, see dicussion in J Greene, "A Provocation Defence for Battered Women Who Kill?" (1989) 12 Adel LR 145, 147. A physical assault could amount provocation. But the gravest insult at this time would be discovering your wife with a lover - adultery at this time was considered an attack both upon a gentlemanıs honour and property. The defence was constructed around ownership of women as chattels, and operated to maintain the subordination of women. The common law defence was also constructed around male conceptions of sexual jealousy, anger and revenge. The courts required a sudden violent retailation. Where there was an opportunity for the blood to cool, the defence was not available. Aspects of this early law have survived through to the common law today: suddeness, absence of delay or premeditation are no longer substantive rules may provide evidence that ordinary person faced by that degree of provocation could have formed the intent to kill. (see below).

The common law made significant changes particularly in reponse to the philosophical currents of liberal theory in the last century. The 19th century witnessed many changes to the criminal law - the courts began to view the requirement of mens rea in the morally neutral terms of intention and recklessness; neither malice nor a wicked or evil mind was necessary for mens rea - neither was the defendantıs motive (reason for acting) relevant to culpability. This changed understanding of criminal culpability impacted on the defence of provocation in several ways: first, the focus of the defence became, and remains, the defendantıs "loss of self control" rather than morally excusable retribution; secondly, the courts, as a means of controlling the scope of the defence, developed and applied an objective test for the defence. The objective test manifested itself in several ways.

First, there was the emergence of the reasonable man test: would the reasonable man, faced by that degree of provocation, have lost self control and formed the intent to kill the victim. The reasonable man emerged in Welsh (1869) 11 Cox 336. In recent times, the reasonable man has been transmogrified into the ordinary person: Barwick in Moffa (1978) 138 CLR 601 noted that it is preferable to characterise the objective standard in terms of ordinary person rather than reasonable person "because the test is better related to human nature than to reason"; see also the concern in Stingel that the use of the reasonable person of negligence may be impose a standard of self control which is simply too high: BFW 670. Secondly, the courts began to apply a proportionality test (see the use of proportionality in Self-Defence:. This requires some correlation or measured correspondence between the act of provocation and the defendantıs retailation. Note that this is no longer a separate requirement under the common law. In NSW this "rule of law" has been expressly abolished by s 23 (3)(a). It is however relevant to the operation of the ordinary person test: ie, lack of proportionality is merely evidence that the provocation is not sufficient to have induced the ordinary person to have lost self control and formed the intent to kill: see Johnson (176) 136 CLR 619.

Not every verbal insult would justify a lethal response (this has been modified in NSW, where "grossly insulting words" may constitute provocation. See Holmes [1946] AC 588, discussed in BWW at 221 where the House of Lords held that a mere confession of adultery would not be sufficient.

"Crimes of Passion": A Profile of Homicide in Australia

From a doctrinal viewpoint, the defence is not confined to sexual cases, however it is important to appreciate the gendered nature of the crime of homicide and its effect of the defence of provocation. The gendered nature of the crime of homicide can be established by an examination of the statistical research. The National Homicide Monitoring Program was established by the Australian Institute of Criminology in 1990, and has been analysing the type and nature of homicide in Australia. The program commenced with a study of homicides throughout Australia between 1989 and 1991. The data compiled for the program showed that overwhelming majority of homicides (90%) are committed by men. The data showed that a sizeable percent of homicides could establish an intimate relationship between the perpetrator and deceased (in Vict and NSW approximately one quarter of the homicides were between sexual intimates). In this category, "homicide between adult sexual intimates", 80% of the killers were men. The statistics also show that in cases of homicide between adult sexual intimates, women who do kill are far more likely to use a knife than a gun: whereas men are more likely to assault or strangle their partner. See Patricia Easteal, Killing the Beloved: Homicide Between Adult Sexual Intimates (AIC, 1993).

Provocation is often raised in cases of homicide between adult sexual intimates. Most commonly it is raised by men who kill women (usually their sexual partners or former sexual partners) in a state of loss of control due to an act of provocation (infidelty, disobedience etc). In the section below, Provocation and Battered Women, we will explore the difficulties which battered women who kill their partners after years in an abusive relationship face in raising the defence.

A Statutory Basis for Provocation in NSW

The defence of provocation in NSW is contained in s. 23(2) of the Crimes Act , refer to which provides that the actions of the accused will be deemed to have committed under provocation where:

a) the act or omission is the result of a loss of self control on the part of the accused that was induced by any conduct of the deceased (including grossly insulting words or gestures) towards or affecting the accused; and

b) that conduct of the deceased was such as could have induced an ordinary person in the position of the accused to have so far lost self control as to have formed an intent to kill, or to inflict grievous bodily harm upon the deceased."

The modern law of provocation does not require an absence of mens rea. The early caselaw talked about the defendantıs lack of intent. This approach was taken in Holmes, where the House of Lords held that if the defendant had the actual intention to kill, the doctrine of provocation would seldom apply. The High Court and the Privy Council, however, rejected this approach in Parker v R [1964], BFW 683; BWW at 224. In that case it was held that unlawful killing will be reduced from murder to manslaughter where the defendant formed an intent to kill or inflict GBH arising from the loss of self-control due to provocation. This position is reflected in the statutory defence of provocation under s 23, which operates in cases where the defendant loses self control and forms an intention to kill or inflict GBH.

The question has arisen whether conduct amounting to provocation must be offered by the deceased. If the rationale of provocation is the defendant's impaired self-control (rather than the deceased's contributory negligence) the availability of the defence should be unaffected by the fact that the defendant acting under the influence of provocation mistakenly kills an innocent party. The rule in NSW appears to require the the provocation to be offered by the deceased, refer to s 23(2)(a). This may be unduly harsh. In Quartly (1986) 22 A Crim R 252, New South Wales, Court of Criminal Appeal, BFW 665, the accused killed the victim with a shotgun. In this case the only evidence of the deceasedıs provocation was that he had heard from two other people that the victim had supplied heroin to his ex-girlfriend and raped and bashed her. The Court held that s23 required the deceasedıs conduct must be towards or affecting the accused. In this case there had been no incident between the accused and V. Defence argued that a broad construction should be given to the words "conduct affacting the accused". The Court rejected this: the provocative incident must be one which directly involves the accused and the deceased. Thus provocation requires a reaction by the accused to the conduct of the deceased which occurs within his sight or hearing. Lee J pointed out however that the provovative conduct need not be directed by the deceased at the accused: it may be wrongful conduct directed at a third party.

Another source of uncertainty over the provocation defence concerned the burden of proof. The jury only have to consider the issue of provocation where they are satisfied beyond all reasonable doubt that the Crown has proved murder against the defendant. At common law, as established in Woolmington [1935] AC 462, the Crown carries the onus of proving that the defendant's actions were unprovoked where there is sufficient evidence to raise the defence of provocation. Section 23 of the Crimes Act (NSW) originally did not specify where the burden of proof lay. However, the High Court in Johnson (1976) 136 CLR 619 held that since section 23 was enacted prior to the decision in Woolmington, the old rule applied; namely, the burden is on the defendant to prove on the balance of probabilities that the conditions necessary for provocation have been established. Since this decision, section 23(4) has been modified to achieve conformity with the common law.

Ordinary Person Test

There has been considerable refinement of this test in recent years. The reasonable man is now the ordinary person. The old common law test based on the reasonable man required the jury to ignore "any unusual physical characteristics" of the accused. This could lead to injustice. The high point of this objective approach was the English House of Lords decision Bedder [1954] 1 WLR 1119; BFW 681; BWW 222. The victim was a prostitute. The defendant tried unsuccessfully to have intercourse with her. She taunted him and tried to get away from his grasp in the course of which she slapped him, punched him and kicked him in the groin. He pulled a knife and fatally stabbed her. The trial judge directed that the reasonable man, faced by the victimıs conduct, was not to be attributed with any of the subjective characteristics of the accused including his impotence. Lord Simmonds upheld that direction: the common law refused to consider the temperament of the actual accused and therefore it should not consider the accusedıs physical characteristics. Applied to its logical conclusion, characteristic such as age, sex and ethnic background would be irrelevant. Bedder has however been overruled by the House of Lords in Camplin [1978].

In Australia the High Court has recently laid down the elements of the ordinary person test for provocation in two cases Stingel (1990) and Masciantonio (1995). Austlii Case Database.

Stingel (1990) 171 CLR 312

The accused killed the boyfriend of a former girlfriend and was convicted of murder. This is now what be regarded as a case of stalking. For a number of years the accused stalked his ex girlfriend. He would wait outside her work place. He followed her about. When she told him that she did not want to see him, he threatened her with violence. She obtained a restraining order against him, and the accused was convicted of breaching that order. She dated several men, and the accused would follow them: the accused said that he was concerned that the young man in question was treating her badly; in his words ³one night standing her². On the night of the killing he went searching for the couple, and found them having oral sex in a car. The boyfriend told the accused to piss off and the accused lost control, went back to his car, had a smoke, and then returned to the car with a butcher knife from his car and stabbed him in the chest. The High Court reviewed the test of the ordinary person, in the context of the defence in the Tasmanian Criminal Code. The High Court referred to the earlier decision in Parker which concerned the statutory predecessor of s 23(2) of the Crimes Act 1900. From this case, the High Court held that the threshold question is whether the wrongful conduct or insult of the deceased was such that an ordinary person could lose self control and have retaliated in the way the defendant did. The High Court pointed out that it was important to place the provocative conduct in context, and in particular an examination of the gravity of the wrongful act or insult. When determining the gravity of the deceasedıs conduct it was important to look at the subjective characteristics of the defendant. These characteristics need not be permanent. The High Court explains the function of the objective ordinary person in terms of the importance of equality (BFW 670) and that it is reasonable for society to expect (and thus to impose) a minimum standard of self control of its members Having accepted the relevance of the defendantıs characteristics to the gravity of the deceasedıs conduct, the High Court excluded these subjective considerations when the effect of this conduct on the powers of self control of the ordinary person. The High Court also pointed out that the objective test does not impose a standard of self control based on the reasonable man in negligence: BFW 670; BWW 265. The question is whether the ordinary person faced by that degree of provocation could have killed the deceased; note that the test is based on could not would.

The only qualification recognised by the High Court with respect to the ordinary person standard is age, but not gender or ethncity. It should be noted that the English courts have been prepared to accomodate gender in the ordinary person test: the High Court departed expressly from the House of Lords in Camplin. In that case, the House of Lords had identified both age and gender as relevant to the ordinary person test. However the High Court in Stingel recognised that the only qualification is age in the sense of immaturity. The High Court referred to the relevance of age to the objective reasonable person standard in the law of negligence: see BFW 671 and High Court reference to McHale v Watson (1966) 115 CLR 213.

Masciantonio (1995) 183 CLR 58

The defendant killed his son in law. He is described as person of Italian migrant background, who reacted overtly to stress. A psychiatrist gave evidence that the defendant had a predisposition to a dissociative state when under stress and that he was in such a state when he killed his son in law. The facts are summarised in McHughıs judgment: the deceased had been mistreating the defendantıs daughter, Lia, over many years; he was violent to her; he demanded money from Lia ; she refused and so he made off with the TV (which she paid for). On the day of the killing the defendant went to find the deceased to talk about his bad behaviour. According to the defendant, when he approached the deceased, the deceased told him to piss off and shoved him: the defendant suffered an injury to his elbow. The defendant then got hold of a knife from his car and stabbed him several times. The trial judge alerted the jury to two stages of the incident: the first stage occurred near the car, when the deceased was near the car; the second stage occurred later, when the deceased was stabbed while lying on the footpath. During the second stage, a number of bystanders attempted to intervene and stop the defendant with a brick and iron bar, but he continued and stabbed the defendant in the chest. The trial judge directed that the defence of provocation would not easily be available in the second stage. The Victorian CCA dismissing the appeal, held that no ordinary person would have continued to stab the deceased while he lay defenceless on the footpath.

The majority had to decide the appropriate direction for provocation in Victoria which applied the common law. The High Court held that the test laid down in Stingel reflected the common law position. The test in Stingel is reaffirmed as one of general application. Applied to the facts. The gravity of the provocation by the deceased must be viewed against the background of mistreatment of his daughter. The deceased dismissal of the defendant on the day of killing must be considered against this background. The majority rejected that it was possible to draw a distinction between the two stages of the incident.

The ordinary person test was expounded somewhat furtherby the majority. They held that the requirement is that an ordinary person could have done what the accused did, corresponding to the degree, method and continuance of the violence used by the defendant. The Crown argued that the ordinary person would not have continued, ie would have regained self control. The High Court held that this is misleading: BFW 677.

"The question is not whether an ordinary person having lost his self control would have regained his composure sooner than the accused nor is it whether he would have inflicted a lesser number of wounds. It is whether an ordinary person could have lost self control to the extent that the accused did. ...

The majority continued that the associated question of whether the accused had regained self control so that the killing was not in fact provoked is one which should be determined by reference to "the conduct of the accused himself and to common experience of human affairs".

There is a strong dissent by McHugh J. McHugh reviews the decision in Stingel, acknowledging that he had been party to that earlier unanimous judgment. He reviews the test, but is much more critical of the bifurcated nature of the test than the majority: BFW 678. He accepts that to attribute the defendantıs characteristics to the ordinary person would be to abandon the objective standard entirely. However, objective standards can encompass some of the defendantıs characteristic; such as age, race, culture and background,. He accepts that the equality reasoning in Stingel is flawed and acknowledges the influence of Prof Yeo in changing his mind. He acknowledges that ethnicity and culture were not issues in Stingel, and that the High Court is able to reconsider the issue. Note the conspicuous silence on the relevance of gender to the issue of self control.

In the application of the ordinary person test, however McHugh J was less favourable to the defendant. He applied the more stringent test which had been argued by the Crown, accepting that the test is whether an ordinary person in the situation of the accused would have regained self control. As indicated above, the majority rejected this approach. McHugh J noted the intervention of bystanders and the time lapse between the two attacks which indicated that the ordinary person would have regained self control in that situation.

Critique of the Ordinary Person Test

The purported irrelevance of gender and ethnicity are significant limitations on the test. The rationale for this silencing of alternative emotional reactions is based on the importance of equality in the criminal law. The majority in Stingel acknowledged that there may be different individuals or groups in society who have a higher or lower capacity for self control; however the principle of equality requires that such differences are ignored, and that all people are held to the same standard.

This notion of equality (formal equality) can be criticised; it ignores the different positions of men and women who resort to violent retaliation. This conception of equality also evaluates women against an objective standard which is set by and for men. See the article onmulticulturalism. The refusal to recognise that women, as a group, may retaliate to wrongful acts differently from men (as the National Homicide Monitoring Program data shows women are more likely to retaliate violently with a knife, than with fists: "Crimes of Passion": A Profile of Homicide in Australia ). The refusal to acknowledge the social reality of women in abusive relationships, and how they respond, means that battered women have much difficulty in convincing the jury that there reaction conformed to those of the ordinary person. See K O'Donovan, "Law Knowledge: The Judge, The Expert, The Battered Woman, and Her Syndrome" (1993) 20(4) Journal of Law and Society 427.

Another criticism of this two-tiered test, partly objective, partly subjective, is that it is confusing to the jury. The subjective characteristics of the accused are relevant to the issue of gauging the gravity of the insult or wrongful act, but discounted in the next part of the test: the ordinary person has none of these characteristics except age. The test separates the provocative act or insult from the consequences which follow, and applies different standards. Anything can be provocative, but only retaliation which falls within the parameters tolerated by the community will be excused. The test embodies a symbollic struggle between subjective and objective standards in the criminal law; concerned at the one hand to do individual justice by taking account personal characteristics, but also to enforce community standards of self control - that society expects a minimum degree of self control from its citizen.

Stingel can be seen as a reversal of the trend towards subjectivity in the criminal law generally. Earlier cases did not adopt such a refined analysis, and tended to consider the defendantıs cultural background when determining whether the ordinary person would have lost self control and killed the deceased: see Dincer [1983] VR 460 at 467, BFW 680; BWW 258. Following Stingel, the defendantıs cultural background is relevant only to determining the gravity of the insult, and should not be attributed to the ordinary person.

Modification or Abolition of the Ordinary Person Test?

Both judges and commentators have argued that objective standards in this area of the criminal law are completely inappropriate. For a powerful critique of the objective test see Murphy J in Moffa (1978) 138 CLR 601; BWW at 246. See also the Peter Brettıs influential article: "The Physiology of Provocation" [1970] Criminal Law Review 634. This article reviews the sociological and physiological studies which demonstrate that the law (the old common law) was grounded on a number of phallacies about human nature; first, he reviewed the judicial view that individuals who have lost self control are in a position to control the degree of retaliation; he calls this the theory of "controllable anger". This conception is embodied in the requirement of proportionality between the insult and the retaliation. He notes that the human body under stress prepares for strenuous action, commonly known as the "fight or flight" reaction. The changes which occur have something of an "all or none" quality; the reaction is not nicely proportioned to the threat which is expected of the ordinary person. As Brett concludes "the all or none quality of the reaction make it pointless to draw distinction of nicety between different types of provocative act". He also showed that how individuals cope with stress varies much from one individual to another: "some men are highly vulnerable to stress, others are strikingly resistant to it". The reasons for this difference may lie in genetic factors, environmental factors. Another reason there is difficulty in identifying the average or ordinary personıs response.

Notwithstanding these insights, the objective test has been firmly entrenched in the present law under Stingel. In applying the ordinary person test, the present trend is to affirm the objectivity of the test for self-control, but take into account any of the defendant's characteristics which affect the gravity of the provocative conduct, such as age or ethnicity. Not all characteristics would be relevant to the gravity of the insult: there must be some some direct connection between the provocative words or conduct and the particular characteristic. The House of Lords recently held that the defendant's history of "glue-sniffing" could be relevant to determining the gravity of the provocation offered by the deceased: Morhall [1995] 3 All ER 659.

The question has arisen whether all the subjective characteristics are relevant to the gravity issue: I Leader-Elliott, "Sex, Race and Provocation: In Defence of Stingel" 20(2) Criminal Law Journal 72, see especially 77-79. He which he argues that there are limitations on the types of characteristics which may be attributed to the ordinary person for the purpose of assessing the gravity of the deceased's conduct. He argues that there is an objective element to the gravity question: "Provocation is grave only if ordinary people would consider it grave" at 79.

Do you agree with this interpretation of the gravity test applied in Stingel?

I Leader-Elliott's argument is based on a passage in Stingel which emphasises that "age, sex, race ... [etc]... may be relevant to an objective assessment of the gravity of a particular wrongful act or insult" (emphasis added): (1990) 171 CLR 312, 326. The use of the term "objective" in this passage is ambigious and confusing. There are indications that the test is purely subjective from other passages earlier in Stingel:

"Even more important, the content and extent of the provocative conduct must be assessed from the viewpoint of the particular accused. Were it otherwise, it would be quite impossible to identify the gravity of the particular provocation": 326.

The relevance of ethnicity to provocation is a controversial issue. The early law took no account of cultural background of the accused in assessing the gravity of insult. Ethnicity is now considered a relevant consideration for the jury when reviewing the gravity of the provocation offered to the defendant: Croft [1981] 1 NSWLR 126. Some of the earlier cases held that ethnicity is a relevant consideration for the jury when considering the nature and extent of the defendant's reaction: Dincer [1983] VR 460, BFW 680. But now see the opposite view expressed by the High Court in Stingel. For further discussion see S Yeo, "Ethnicity and the Objective test in Provocation² (1987) 16 MULR 67. Note that the Northern Territory Code has been interpreted in a more liberal way to accomodate aboriginality: the ordinary person under the provocation defence in the Code could be attributed with the ethnic background of the accused. In one recent case, that was defined as an ordinary Aboriginal male person living today in the environment and culture of a remote Aboriginal settlement: Jabarula v Poore (1989) 68 NTR 26.

Provocation and Battered Women

The common law doctrine of provocation proved to be difficult to apply to women who killed abusive partners. The law traditionally required two things; suddeness of the action; and that the mode of resentment bears some proper and reasonable relationship to the provocation. Under a strict application of the common law, provocation would be difficult to establish since the woman time to reflect on the conduct and thus an opportunity to cool down. There was some relaxation of these requirement in Parker [1963] ALR 524, High Court, Privy Council, BFW 693; BWW 224. The victim had over a period of weeks lured away the defendant's wife. The victim had jeered at the defendant's weakness and spoke of his lustful intent. There was an interval of 20 minutes between the victim departing with the defendant's wife and the defendant chasing after them. He ran them down in his car injuring both of them. As the victim lay on the roadside the defendant struck him with a knuckleduster and stabbed him in the neck with a knife. Had the issue of provocation been improperly withdrawn from the jury by the trial judge? The High Court and Privy Council held that nothing in s. 23 of the Crimes Act obliged the trial judge to withdraw the issue form the jury. Dixon CJ held that there was sufficient evidence for a jury to find that "the succession of events and the conduct of [the deceased] brought a very strong provocation to an emotional nature, a provocation still in actual operation when Parker came upon [the deceased] and his wife.". The High Court held that a reasonable jury, properly directed on the evidence, may have accepted that an operative provocation existed at the time of killing, notwithstanding there was an interval between the deceased's departure, the initial assault with the car, and the subsequent fatal stabbing. This position has been given statutory effect in NSW by s. 23(3)(c). The time between the provocation and the killing is merely one factor to be considered in determining whether the defendant's reaction were those of an ordinary person, i.e., would the elapse of time be sufficient for an ordinary person have recovered his self-control.

In Johnson (1976) 11 ALR 23 the High Court also abrogated the requirement of reasonable retaliation. See also Murphy J in Moffa (1978) 138 CLR 601; BWW at 247. Proportionality had no separate existence as a rule of law of its own; the nature and extent of the defendant's retaliation will be a factor in determining whether the defendant's actions were those of an ordinary person. This has been given statutory effect in NSW by s.23(3)(a).

In the South Australian case R, BFW 685, the accused attacked her partner with an axe while he was sleeping. On the night in question she discovered that he had committed incest, and rape of their own daughters. Late that night he attempted to reconcile with her, which she rejected. While he slept , she killed him with an axe. The lack of suddeness was not a bar to provocation. However the Court held that the words and conduct of the deceased immediately preceding the killing had to be understood in a broader context. The Supreme Court also held that old common law requirement of unlawfulness on the part of the deceased can no longer be regarded as an element of the defence. Older cases had held that the act of provocation must involve an unlawful act; in most cases this would be satisfied since the deceased's conduct was invariably an assault upon the defendant. The Court of Appeal ordered a new trial. The Crown refused to accept a guilty plea of manslaughter on the basis of provocation. Although there was no other defence raised, the jury return a not guilty verdict.

A similar approach was taken in Hill (1981) 3 A Crim R 397, BFW 688, where the wife killed her abusive husband with his rifle. On the night of the killing he threatened to bash her and throw her through a window. The Crown used peremptory challenges to exclude women from the jury, and although directed on the issue of provocation, the jury convicted. At this time in NSW, murder carried a mandatory life sentence. The NSW CCA adopted a similarly contextual approach to the suddeness requirement (sudden act requirement in the old provocation provision); and the loss of self control must be viewed against a background of domestic violence over many years. The Court substituted a verdict of manslaughter and sentence of 4 and a half years. This decision, and several others, led to a strong public campaign for a change in the law. The NSW Government constituted a special task force to examine the operation of the provocation defence, and it recommended several changes: see Report of NSW Task Force on Domestic Violence (1981). Much of the new law is influenced by Murphyıs judgment in Moffa (1978) 138 CLR 601. The principal changes were: removal of the requirement of suddeness; removal of the requirement that the retaliation must be proportionate to the provocative act; the section restored the legal burden to Crown to prove the killing was unprovoked; it also recommended greater flexibility for sentencing in murder cases by abrogating of the mandatory life sentence. The reforms did not however go as far a Murphyıs radical suggestion to eliminate the ordinary person test completely.

Incorporating Battered Womens' Stories

The question arises how the present law takes account of battered womenıs experiences. Many of the overtly discriminatory rules of governing self defence and provocation have been removed. Prior to the decision in Zecevic, BFW 698, the law of self defence required proportionality between threat and response, and the defendant was under a legal duty to retreat. These rules reflected the male paradigm of self defence. In the words of the Supreme Court of Canada in Lavallee (1988) CCC (3d) 113, the law is based on a "barroom brawl between two men of equal size and strength". It does not deal with violence between intimates within the family. Nor does it recognise that women may experience and react to fear differently than men. Although post Zecevic these rules (proportionality, imminence, the legal duty to retreat) have been relegated to the evidential arena, the present law governing self defence remains inherently problematic. This is because the law qualifies the women's belief in the necessity of her actions with a requirement of ³reasonableness². Remember the test is not whether a reasonable woman in her position would have acted in self defence with this level of force. The question is whether her belief is based on reasonable grounds. Similar concerns can be raised with respect to the ordinary person, which measures the accused conduct by reference to the the ordinary reaction, and the person of ordinary firmness. Reasonableness and ordinariness standards are under attack by feminist legal theorists. Although clothed in the language of neutrality and objectivity, the underlying standard is a male one. Similar concerns arise with the sexless ordinary person under the law of provocation: that the standard which in fact applies is a male one. See Sheehy E.A., Stubbs J., and Tolmie J., "Defending Battered Women on Trial: The Battered Women Syndrome and its Limitations" (1992) 16 Criminal Law Journal 369. The challenge for feminist lawyers has been to demonstrate that the male response to aggression is not necessarily the only reasonable response or ordinary reaction. The task therefore is to demonstrate to the jury that the fear and reactions of battered women may indeed be reasonable or ordinary in the circumstances.

The significance of ordinariness standards to the success of provocation is apparent in Chhay (1992) 72 A Crim R 1. The defendant was a Cambodian migrant women who killed her husband after many years of violence and abuse. On the day of the killing, he got drunk and threatened her with a knife. The trial judge put the defence of provocation very narrowly: to be successful that attack by the husband on the defendant must be immiediately before her killing. In this case, there was an interval of some time between his threat and her response.

The Court held that the suddeness of the response was no longer a bar to provocation, and to that extent the trial judge had misdirected the jury. However that delay is relevant evidence bearing on the question whether the killing was committed in a state of loss of self control, refer to S at 9. The requirement of suddeness, although abolished as a legal requirement, may be still relevant evidentially. This statement about human nature is not based on scientific or psychological research; may be challenged as it reflect only one type of responses to provocation, arguably a male response. The Court however does acknowledge that our knowledge about people losing self-control is changing. The Court highlighted the use of expert evidence to help.

One avenue in which the reactions of ordinary persons can embrace the experiences of battered women is through the use of expert evidence, particularly relying on the battered womens syndrome evidence. Some of you may be wondering why can't women's experiences be raised without resort to medical expertise. Madam Justice Bertha Wilson in Lavallee, op cit, provided this answer:

The average member of the public (or of the jury) can be forgiven for asking: Why should a woman put up with this kind of treatment? Why should she continue to live with such a man? How could she love a partner who beats her to the point of requiring hospitalisation? We would expect the woman to pack her bags and go? Where is her self respect? Why does she not cut loose and make a new life for herself? Such is the reaction of the average person confronted with the so called battered woman syndrome. We need to understand and help is available from trained professionals"

Clearly this evidence can help us understand that a particular belief is a reasonable one, having faced and experienced long term abuse. In Australia, the first case to recognise the role of this type of expert evidence in a case of self defence to a charge of murder was Kontinnen (1992) BWW at 673 (See Self-Defence). The defendant, Erica Kontinnen, shot and killed her defacto whilst he slept. Self defence and provocation were both put to the jury. The defendant lived with the deceased and another woman and her child. She claimed that deceased had abused her over many years, and that on the night of the shooting threated to kill her, the other woman and the child. She had been hospitalised 10 times in two years as a result of his beatings. The Supreme Court admitted expert evidence of the syndrome which provided a psychological profile of such women and their condition which is described as "learned helpness". This evidence was admitted without objection by the Crown or trial judge. The trial judge treated this evidence as being relevant to two issues: first, it was relevant to whether the defendant subjectively believed that it was necessary to use this force against the deceased, secondly, it was is relevant to the objective standard of reasonableness of the defendant belief. The jury acquitted the defendant.

How is battered women syndrome relevant to provocation. Certainly it would be relevant to the threshold question concerning the gravity of the wrongful act. It would also be relevant to whether the defendant actually lost self control. But under the Stingel approach, arguably the battered women syndrome has no bearing on the powers of self control expected of an ordinary person: see S Yeo, "Battered Woman Syndrome in Australia" (1993) New Law Journal 13.

I have similar concerns about the risk of over-emphasising the importance of these symptoms in both defences - provocation and self-defence- but for a different reason. There is an increased reliance and prevalence of syndrome evidence in criminal trials to explain criminal behaviour, in particular female behaviour. The expertise is not confined to battered woman's syndrome: see Ian Freckleton, "When Plight makes Right: the Forensic Abuse Syndrome" (1994) 18(1) Criminal Law Journal 29. He reviews some of the best known syndromes like rape trauma syndrome (which is used by the Prosecution to prove that rape occured), premenstrual syndrome, parental abuse syndrome, and Vietnam veteran's syndrome. As Freckleton explains in medicine syndrome is used to denote a collection of symptoms that occur together, where the cause of the symptom is not known. So there is some confusion between the medical use of the term syndrome (which means that the cause of the symptoms is not identifiable) and the legal and evidential use of syndrome (which assumes that a cause can be identified).

The term battered women's syndrome emerged in the pionering research and literature in the 1980s of Dr Lenore Walker. She used the term as a convenient label to describe the symptoms of women who were diagnosed with "post traumatic stress" disorder following repeated abuse by partners. The behaviour, like learned helpness, is the result of them experiencing post traumatic stress. So the only thing the such symptoms prove is that the defendant suffered a major trauma, it does not identify the type of trauma. However, there are clear advantages for the defence in using the term "syndrome" to describe the behaviour of battered women. The term "syndrome" cloaks the social and psychological explanation of the defendant's conduct in a veneer of medical respectability which the jury is more likely to accept.

There are several dangers in this medicalisation of women's experiences and behaviour. First, women who do not exhibit these symptoms will not be able to convince the jury that their reactions were reasonable or ordinary. The legal rules of self defence and provocation have been simplified considerably and many of the overtly discriminatory aspect of these defences have been abolished. Although women need not conform to typcial male responses to provocation (the barroom brawl model) or self defence, the increasing reliance on expert evidence and battered women syndrome suggests that women must now conform to a medical model (as defined by psychiatry) for their experience to be credible and reliable. Secondly, in crude terms, the use of syndrome evidence is suggestive that the woman is not bad, just mad. This may suggest that the more appropriate defences of insanity or diminished responsibiliy. Insanity is defined as a disease of the mind so that the person no longer knows the nature or quality of the act, or the difference between right and wrong. The defence results in a qualified acquittal, which is indefinite detention in a mental institution. A very unattractive option.

In conclusion, the introduction of syndrome evidence is to some extent a necessary development, having an important role in disabusing juries and judges of myths and stereotypes concerning battered women. Freckleton says that the syndrome represents a medical fiction constructed to deal with the law's insistence upon objective notions of ordinariness and reasonableness. This may be an over-statement. Medical evidence may play a role in some, though not all, cases. However, as Freckleton proposes, the courts must be prepared to admit evidence about the broader social conditions experienced by battered women. The courts must allow evidence from a wide range of sources, including social workers and refuge workers, to provide alternative explanations of the defendant behaviour. Such evidence will provide a more satisfactory framework which can assist the jury decision whether the defendant believed the act of self defence was necessary and whether that belief is a reasonable one in the circumstances.