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83 PROVOCATION WAS DEVISED BY THE COMMON LAW as a partial defence
to a capital crime. It has been retained to reduce from murder to manslaughter the verdict upon a killer who is not justified in his or her action, but who is arguably less blameworthy because he or she acted under provocation. The modern form of the defence seeks a compromise between competing policies: that every citizen should be required to maintain a reasonable level of self-control (entailing an objective test), and the need to make allowance for those whose characteristics make them more susceptible to provocation than others (entailing a subjective test).
84 The subjective element of the common law defence requires actual loss of self-control due to the provocation. As the defence developed, case law established that the defendant must have acted in the heat of passion in response to sudden provocation.[102] The objective element requires that the provocation must have been sufficient to cause the reasonable man to have lost self-control. The response to the provocation also had to be proportionate.[103] The objective element in provocation came to be interpreted in an increasingly strict manner, a trend culminating in Bedder v Director of Public Prosecutions.[104] In Bedder, the House of Lords held that the peculiar characteristics of the accused could not be taken into account when assessing the response of the reasonable man to the provocation.
85 A statutory defence of provocation was first enacted in New Zealand in section 165 of the Criminal Code Act 1893 (subsequently re-enacted as section 184 of the Crimes Act 1908). This codified the common law and specifically required that the defendant act “in the heat of passion caused by sudden provocation”. However, dissatisfaction with the decision in Bedder led the New Zealand legislature to enact a substantially more liberal form of the defence in section 169 of the Crimes Act 1961.[105]
86 Section 169 of the Crimes Act 1961 provides:
(1) Culpable homicide that would otherwise be murder may be reduced to manslaughter if the person who caused the death did so under provocation.
(2) Anything done or said may be provocation if-
(a) In the circumstances of the case it was sufficient to deprive a person having the power of self-control of an ordinary person, but otherwise having the characteristics of the offender, of the power of self-control; and
(b) It did in fact deprive the offender of the power of self-control and thereby induced him to commit the act of homicide.
(3) Whether there is any evidence of provocation is a question of law.
(4) Whether, if there is evidence of provocation, the provocation was sufficient as aforesaid, and whether it did in fact deprive the offender of the power of self-control and thereby induced him to commit the act of homicide, are questions
of fact.
(5) No-one shall be held to give provocation to another by lawfully exercising any power conferred by law, or by doing anything which the offender incited him to do in order to provide the offender with an excuse for killing or doing bodily harm to any person.
(6) This section shall apply in any case where the provocation was given by the person killed, and also in any case where the offender, under provocation given by one person, by accident or mistake killed another person.
(7) The fact that by virtue of this section one party to a homicide has not been or is not liable to be convicted of murder shall not affect the question whether the homicide amounted to murder in the case of any other party to it.
87 Section 169 only required that the defendant act “under provocation”, not “in the heat of passion caused by sudden provocation”: the previous legislative test. Section 169 also reformed the objective test by incorporating into it a subjective element: the provocation must have been sufficient to have caused a person having the power of self-control of an ordinary person but otherwise having the characteristics of the offender, to lose control. This became known as the “hybrid person test”.
88 The hybrid person test was intended to temper the harshness of the purely objective test applied by the common law, while still retaining a standard of self-control. However, a mixed subjective/objective test has proved difficult to apply. In R v McGregor, the first appellate judgment to interpret the section, the Court of Appeal said that the offender must be presumed to possess in general the power of self-control of the ordinary man, save insofar as his power of self control is weakened because of some particular characteristic possessed by him.[106] This interpretation meant that the Court had to place limitations on the type of characteristics that may be relevant if the test was not to become completely subjective.
89 The Court said that a characteristic must be something definite and of sufficient significance to make the offender a different person from the ordinary run of mankind, and also have a sufficient degree of permanence.[107] Physical qualities, mental qualities and more indeterminate attributes
such as colour, race and creed could all be characteristics.[108] With regard
to mental characteristics, it was not sufficient to be merely mentally deficient or weak-minded.[109] The provocation must be related to or directed at the characteristic, so that the words or conduct are particularly provocative to the individual because of the characteristic.[110]
90 This interpretation caused difficulties and in subsequent cases[111] was not always followed. Finally, in R v McCarthy,[112] the Court of Appeal abandoned the position it had taken in McGregor. The question to be asked in a case of provocation was “whether a person with the ordinary power of self control would in the circumstances have retained self control, notwithstanding such characteristics”.[113] The suggestion that the provocation must be directed at the characteristic was disapproved. In R v Campbell the Court of Appeal said, by way of clarification, that a characteristic can be taken into account in considering an offender’s sensitivity or susceptibility to the provocation, but not in assessing the power of self-control of the hypothetical ordinary person.[114]
91 However, it is not clear that the Court of Appeal has found an answer to the difficulties of the hybrid person test. With regard to mental characteristics, it may often be difficult to separate the effect of the characteristic on the gravity of the provocation from its effect on the power of self-control. Orchard points out that there are decisions, including McCarthy itself, that are difficult to reconcile with the Court of Appeals’ statement that mental abnormality is relevant only to an evaluation of the provocative effect of the conduct.[115]
Actual loss of self-control
92 Section 169 only required that the defendant act “under provocation”, not “in the heat of passion caused by sudden provocation”. Nevertheless, the requirement of actual loss of self-control means that much of the old law is still relevant. A sudden and temporary loss of self-control remains essential to exclude premeditated acts.[116] This effectively confines the defence to acts done in the heat of passion.
93 Thus, immediacy of response, although not a rule of law, remains relevant to the determination of whether there was actual loss of self-control.[117] Although courts have accepted that a defendant might react to provocation with a “slow burn”,[118] that a comparatively minor incident after cumulative provocation may be the “final straw” which causes loss of self-control,[119] and that earlier provocation may be revived some days later,[120] the longer the delay between provocation and retaliation, the easier it will be to negate the defence.
94 Anger is the emotion most commonly associated with sudden loss of self-control. However, women who kill their violent partners tend to do so because of fear and despair, rather than anger.[121] Although fear and despair may also affect self-control, they are less likely to lead to a sudden explosive reaction immediately following the provocation. Many battered defendants who kill their abusers behave in an outwardly calm and deliberate manner.[122] More importantly, research123 and case law[124] indicate that victims of domestic violence often do not react to the abuse with immediate retaliation. If there is a disparity in physical strength, it is often unsafe to meet force with force.
“Battered Woman Syndrome” as a characteristic
95 The courts in several jurisdictions have sought to respond to the plight of battered defendants by treating “BWS” as a characteristic.[125] The New Zealand Court of Appeal has held that “the heightened awareness of or sensitivity to threats or threatening behaviour that is a feature of the syndrome may be a relevant characteristic in the light of which the accused’s response is to be judged”.[126] That is, a battered woman may perceive an incident as being more serious than would a person who had not been subjected to domestic violence. Consequently, when determining whether the provocation was sufficient to deprive an ordinary person of the power of self-control, the fact-finder must take account of the battered woman’s sensitivity to threats.
96 The English Court of Appeal has held that BWS may constitute a significant characteristic relevant to the issue of whether the hypothetical reasonable woman possessing the appellant’s characteristics would have reacted to the provocative conduct in the way the appellant did.[127] The High Court of Australia has stated that a battered woman’s heightened awareness of danger and the history of an abusive relationship may be relevant to the gravity of the provocation.[128]
97 Despite these developments, provocation remains a difficult defence for battered women because they are seldom in a position to respond to provocation with spontaneous violence, which is the strongest evidence of sudden loss of self-control.
98 The defence of provocation has been used to reduce the culpability of men who have killed their wives because they reported a severe beating to the police after promising under threat not to do so,[129] or were found in a compromising situation with another man,[130] or had taunted the husband with sexual or other inadequacies.[131] The current law on provocation can be said to protect the perpetrator of domestic violence more effectively than the victim. As Horder noted:[132]
One must now ask whether the doctrine of provocation, under the cover of an alleged compassion for human infirmity, simply reinforces the conditions in which men are perceived and perceive themselves as natural aggressors, and in particular women’s natural aggressors. Unfortunately, the answer to that question is yes.
99 The general difficulties with the defence have lead to several calls for its abolition, both in New Zealand and overseas.[133] In 1976 the Criminal Law Reform Committee recommended abolishing the mandatory life sentence for murder and, with it, the provocation defence.[134] Provocation was to be a matter for the judge to take into account when sentencing.
100 The Committee made this recommendation because:
• Provocation is not a defence to any other crime, such as wounding or assault, but is taken into account when sentencing. Thus, provocation as a defence to a charge of murder is an anomaly and, with the abolition of the death penalty, the original reason for its existence is largely gone.
• Provocation is limited by its historical roots and cannot, without considerable straining, include many instances of homicide where public opinion today would call for a merciful sentence.[135]
• The standard of the person with the self-control of an ordinary person but the characteristics of the offender is a difficult concept for juries (and judges) to understand and apply.
• If the mandatory life sentence for murder were abolished the need for a defence of provocation would no longer exist.
101 The Criminal Law Reform Committee’s recommendations were embodied in the Crimes Bill 1989. The Crimes Consultative Committee, which reported on the Bill, supported the proposal that the mandatory life sentence for murder be replaced with a sentencing discretion, and (with one dissension) that the defence of provocation be abolished, with matters of provocation going solely to mitigate sentence.[136]
102 The Crimes Consultative Committee agreed with the Criminal Law Reform Committee’s assessment of the defence of provocation as “difficult” and “technical”. It considered that it was difficult to justify the special place of provocation in murder trials if the mandatory life sentence for murder was removed. Those who kill under provocation nonetheless have an intention to kill. There was no particular reason why provoked killers should be convicted of a lesser offence than other groups of killers to whom mitigating factors may apply, but who nonetheless may be convicted of murder. The Crimes Consultative Committee also thought it possible that the removal of provocation as a jury issue may increase the number of guilty pleas where responsibility for a killing is not disputed. The change would also remove the possibility of “sympathy” verdicts where the proper verdict would be murder.
Question 6: Should the defence of provocation be abolished:
(a) if the mandatory life sentence for murder is replaced with a sentencing discretion?
(b) if the mandatory life sentence is retained?
103 Since the final draft for this paper was written, the Court of Appeal has once again addressed the application of the hybrid person test in section 169. In R v Rongonui,[137] the defendant and the victim were neighbours in a block of flats. On the morning of 24 June 1998 Rongonui stabbed the victim to death in a frenzied attack in which more than 150 wounds were inflicted, many to the face. The defence was based on lack of intent for murder and alternatively on the partial defence of provocation. On provocation, the trial judge gave the jury the Campbell direction (see paragraph 90 above). Rongonui was convicted of murder. Although the Court of Appeal were unanimous in allowing the appeal and ordering a new trial, it split three to two on the question whether the jury direction on provocation based on Campbell was wrong.
104 The majority[138] held that the Campbell direction was correct, that is, that section 169(2)(a) required the characteristics of the offender to be taken into account in assessing the gravity of the provocation, but did not allow the power of self-control of the hypothetical ordinary person to be affected by those characteristics. The majority view was based on a literal interpretation of the words of the section: the “but otherwise” qualification in section 169 was intractable and controlling. The majority also held that there had to be “a connection between the circumstances of the provocation and the characteristic”, departing from McCarthy.[139]
105 The minority preferred a purposive interpretation of the section, holding that the direction on provocation should follow McGregor, but without the gloss that the provocation must be directed at the characteristic. The minority’s interpretation of the section as stated by the Chief Justice was that:[140]
By s 169(2)(a), all offenders are held to the standard of self-control of the ordinary person. They cannot call in aid the bad-temper or self-indulgence all ordinary people can be tempted by and can overcome. “But otherwise”, if they have a characteristic which affects their self-control because in them the control mechanism of the ordinary person is diminished by the characteristic, then in my view the meaning of the clause permits that characteristic to be taken into account in assessing whether the provocation was “sufficient” to cause loss of control.
106 This interpretation was based on two main factors. First, it was unfair to impose a standard that the accused could not possibly attain in the circumstances of the provocation given, due to his or her particular characteristics. Second, it is often not possible to separate the effect of a mental characteristic on the severity of the provocation, from its effect on the power of self-control. Jury directions based on such a distinction merely confuse and mystify. Indeed, the majority judges acknowledged that a literal interpretation of section 169(2)(a) led to a very complex and difficult test, and thought the law in need of reform.
107 The interpretation proposed by the Chief Justice in Rongonui would simplify the “ordinary person” test by essentially dispensing with it where the defendant has a characteristic that affects his or her power of self-control. The case did not raise, and therefore did not address, the other criticisms of the defence made by the Criminal Law Reform Committee and the Crimes Consultative Committee, discussed in paragraphs 99–102. Nor did it address what this paper has identified as the major impediment for battered defendants in accessing the defence: the requirement of actual loss of self-control of which the strongest evidence is immediate retaliation.
108 The judgments of the Court of Appeal in Rongonui do not change our analysis of the issues.
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