The abolition of the defence of provocation in Western Australia

INTRODUCTION

The recent abolition of the partial defence killing under provocation can be considered as a substantive, rather than simply a cosmetic, change to the Western Australian Criminal Code (“the Code”). Provocation, which has assault as its central element, was originally defined1 as any wrongful act or insult done to or in the presence of an ordinary person, or to those which he has a familial relation to, which deprives him of the power of self control and induces him to assault the person by which the insult was done or offered. Section 2812 set out that the partial defence of killing under provocation, that death resulting from a provoked act which world normally result in a murder charge, results in manslaughter only.3 The Criminal Law Amendment (Homicide) Act of 2008 sets out those sections of the Code and associated legislation which has been repealed and replaced. Section 281 has removed killing under provocation and replaced it with 'Unlawful assault causing death'. This states that death resulting from an unlawful assault4, whether expected or reasonably foreseeable or not, means that the offender is criminally responsible and liable to 10 years imprisonment. This change to the legislation can be argued as substantive because the intent element has been changed, that provocation can no longer be taken as a defence with the exception of mitigating circumstances in sentencing,5 and that it would now result in a charge of murder rather than manslaughter. In order to fully explain this argument, one must look further into the history of provocation as a defence, and the reasons why it has been repealed as a partial defence under the Code.

ISSUES WITH THE PARTIAL DEFENCE OF PROVOCATION
Intention

The defence of killing under provocation is the equivalent of changing an intentional killing to an unintentional one. As previously stated, provocation is considered an intentional killing; the mental element for murder does not require proof of premeditation, even proof of split second intention is enough. Provocation is irrelevant as a defence unless it has been proved beyond reasonable doubt by the prosecution that there existed the required intention for murder6. Thus, due to the required intention, provocation is classified as a partial defence to killing, (rather than a whole defence).Originally, provocation was viewed as a justification based defence, focusing on the extent (and effect) of the wrong, although it has evolved over time, into an excuse based defence, where the accused conduct and mental state is the focus.

The partial defence of provocation was a controversial for a number of reasons; the central one being that manslaughter was a less serious offence with less serious consequences, despite that intention must be proved in order to use provocation. A perhaps more significant argument against the use of the provocation defence is the 'ordinary person' test. This requires that the provocation was significantly serious that an ordinary person could have lost self control and killed.7 The issue with this is that certain types of provocation might be trivial and insignificant to one person and yet 'quite extreme provocation' from another's viewpoint.8. In Masciantonio9, the High Court stated that, “The provocation must be put into context, and it is only by having regard to the attributes or characteristics of the accused that this can be done”. The complexity of assessing the provocation in context by the jury has been an issue of contention. Overall, the requirement of intention for murder in the provocation defence, as well as the complexity of the ordinary person test support the repeal of the previous legislation.

The repeal of the previous legislation is substantive due to the change in the requirement of intention. Previously, intention was a required element for death from assault (because essentially, although not premeditated, a provoked killing was still an intentional killing, albeit even if it is a sudden intention). Under the new section 281, the offender is criminally responsible, 'even if the person does not intend or foresee the death'. Originally, the accused, if successful with the defence, was still criminally responsible for manslaughter, but under the new legislation, they are responsible for murder, albeit without intention.

Consequences of the new legislation
The abolition of the partial defence of killing under provocation can be considered a substantive change in the law due to the number of consequences it results in. Firstly, the offender is convicted of murder, and any mitigating factors (such as provocation) can only be taken into account in sentencing. It has been argued that this may result in murder convictions that no one would want. Alternatively, there still exists in the Code provisions for an oft-used argument against the abolition of the provocation defence: that of battered women. Examples of said provisions include that of section 248, Self defence against unprovoked assault, and section 249, Self defence against provoked assault.10 A further argument against the defence of provocation is that it, at least partially, condones violent responses. In a modern context, it has been seen that violent responses are not culturally acceptable, thus expanding upon the theory that the defence has evolved from a justification to an excuse.

Current legislation – Advantages and Disadvantages
The reform of Section 281 of the Western Australian Criminal Code offers a number of advantages and disadvantages. As previously stated, the abolition of the partial defence of provocation may result in inappropriate murder convictions11. Alternatively, it is argued that provocation can and will be taken into account in sentencing. For example, the sentencing process in Western Australia has been considered to be relatively flexible, particularly considering the number of changes to the Code12.

CONCLUSION
The abolition of the partial defence of killing under provocation is a substantive change to the criminal law of Western Australia. The primary and perhaps most significant reform of section 281 is the element of intention required; originally, intention for murder was required beyond reasonable doubt, (with the result of criminal responsibility for manslaughter), but currently the accused is criminally responsible whether the death was intended or not. The removal of provocation means that rather than the mitigating circumstances being considered in prospect of conviction, they are considered in prospect of sentencing. There are two main arguments surrounding provocation; that it should be retained for the 'battered woman' defence, and that it should be abolished due to the inconsistency of its rationale and the partial condoning of violent responses. Effectively, the self defence clauses of the Criminal Code, as well as those of duress, would accurately cover most situations in domestic violence cases. The incorporation of the new Section 281 may result in considerably different interpretations of assault cases; it has been argued that the results may be too harsh. Alternatively, it could also be said that the current flexibility in sentencing laws means that provocation will be considered sufficiently in sentencing. Overall, the abolition of the partial defence of provocation will change the perspective on assault cases and allow for a less rigid approach to sentencing.

References / Footnotes.
1Criminal Code Act Compilation Act 1913 (WA), as of Reprint 13: 18 January 2008
2Criminal Code (WA) as above.
3Section 270, “Kill” meaning of: Any person who cause the death of another, directly or indirectly, by any means whatever, is deemed to have killed that other person.
4All assaults are unlawful unless authorized or justified or excused by law, as set out in section 223 of the Criminal Code (WA).
5 'Review of the Law of Homicide: Final Report' (2007) Law Reform Commission of Western Australia, No. 97.
6Law Reform Commission of Western Australia (LRCWA) Report 97 (2007), pg 202.
7VLRC, 'Defences to Homicide: Issues Paper' (2002) [6.3], as cited in LRCWA No. 97 (2007).
8 Dimond (Unreported, New South Wales Court of Criminal Appeal, 27 May 1996)
9Masciantonio (1995) 183 CLR 58.
10 Tarrant S, Women Who Kill Their Spouse in the Context of Domestic Violence: An opinion for the Law Reform Commission of Western Australia (August 2006) 38, as cited in LRCWA No. 97 (2007).
11Let it be noted that considering the Homicide reforms are relatively recent, it has yet to be seen as to whether such cases will result.
12Roy Gibson, “Judge finds challenge in New Murder Laws” The West Australian Newspaper, 02 August 2008.