Scribd
Upload
11 views3 pages

Elements of Provocation in Criminal Law

This document discusses the legal defense of provocation in crimes of murder. It outlines the three requirements to claim provocation: 1) the victim's conduct must amount to a serious criminal offense, 2) the defendant's loss of self-control resulted from the victim's conduct, and 3) the victim's conduct could have caused an ordinary person to lose self-control. It also discusses cases related to words versus physical conduct qualifying as provocation, the scrutiny of the victim's behavior, sexual advances as potential provocation, and how the common law and recent reforms have addressed issues of gender in the defense.

Uploaded by

G
Copyright
© All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as DOCX, PDF, TXT or read online on Scribd
11 views3 pages

Elements of Provocation in Criminal Law

This document discusses the legal defense of provocation in crimes of murder. It outlines the three requirements to claim provocation: 1) the victim's conduct must amount to a serious criminal offense, 2) the defendant's loss of self-control resulted from the victim's conduct, and 3) the victim's conduct could have caused an ordinary person to lose self-control. It also discusses cases related to words versus physical conduct qualifying as provocation, the scrutiny of the victim's behavior, sexual advances as potential provocation, and how the common law and recent reforms have addressed issues of gender in the defense.

Uploaded by

G
Copyright
© All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as DOCX, PDF, TXT or read online on Scribd

EXTREME PROVOCATION (s 23 Crimes Act)

Conduct to qualify as provoking has been raised to conduct that amounts to serious
indictable offence.

Legislation structure
0. Provoking conduct of victim,
0. D’s loss of self-control resulting from provoking conduct, AND
0. Whether provocation could have caused ordinary person to lose self-control.

Within sight or hearing of accused


Davis case

Can words qualify as provoking conduct?


Few instances where conduct that involves words will qualify as serious indictable offence.
Perhaps blackmail

Victim on trial
Too much scrutiny on behaviour of victim?

Sexual advances
Green case

Victim incited provocation

Common law structure

LIMB 1 (sub) - act causing death must be the result of loss of self-control. (Did D lose self-
control?)

LIMB 2 (ob) - was the provocation so bad that an ordinary person could have lost self-
control. (Could an ordinary person have lost self-control?)
Subjective test
Chhay case - victim’s provoking conduct may build over time, culminating in fatal loss of self-
control

Pollock case

Objective test
Stingel case

Anderson case

Sivers case

Gender and domestic violence


Ironic that gender has been erased from scope of definition of provocation

Intoxication
Can be taken into account of subjective test, but not objective test

History
Recognition of human frailty and tendency to overreact.

People walked around armed and adhered to code of honour, which required them to
retaliate to anything that threatened their honour.

1600 case - man found another man having sex with his wife and killed him on the spot.

1982 reforms —
Addressed how formulation of provocation was gendered and unfair (e.g. requirement that
force be used immediately after provoking conduct).

R case.

Hill case.
Judicial Commission study
Circumstances which lead to homicides:
⁃ Violent physical confrontations
⁃ Intimate relationship provocation
⁃ Alleged homosexual advance
⁃ Family violence
⁃ Non family sexual assault
⁃ Words alone

You might also like