Thursday, August 30, 2012

Provoking a Response

This week an Upper House committee has been consider changing the law on provocation.

The review was no doubt motivated, at least in part, by the decision of the jury in the case of Singh.
Full story from the Hun
Charmanjot Singh was found not guilty of murder due to provocation. He cut his wife's throat with a box cutter after, he said, she told him she loved another man.

This story, not unreasonably, sparked outrage in the community, and highlighted some of the problems with the law of provocation today.

Let's take an example to explore the issue a bit.

Let's say you're in a pub, and you punch someone in the face. Perhaps you're charges with Assault Occasioning Actual Body Harm (turns out you have a decent punch on you, and you split the guy's lip).

When your matter comes up for sentence, the court will consider all the relevant circumstances - your age, background, criminal record (or lack thereof), whether you plead guilty, any remorse you have shown, and so on.

Let's say, however, that the court is satisfied that you punched this guy because he just said that he would like to rape your sister.

In that case, you could on sentence ask the court to consider provocation as a mitigating factor. Provocation is listed as a mitigating feature the court has to take into account in deciding what the appropriate sentence is for any matter:
You can find the full list here
It doesn't mean you won't be punished, but it does mean that the court will take that factor into account.

When it comes to murder (and only murder) the law is a little different. The briefing paper for the inquiry defines the test as follows:
If the crown cannot disprove provocation, then you can only be found guilty of manslaughter, and will receive a drastically shorter sentence.

Whilst the committee is also examining whether the law on provocation should be amended or tweaked in some way, the main discussion is whether it should be retained at all.

I'm not going to review all of those or try to provide a detailed argument, because the size of that task exceeds my available time.  What I will do is quickly summarise the reasons that I believe the defence should be abolished entirely.

This would mean that provocation would simply be treated as a mitigating feature of a murder, much like it would be for any other violent offence.

It IS murder. These people intended to kill the victim, and did so. They may have been angry, and they may have been sorely provoked, and that should be considered, but to suggest that the offence is not murder is disingenuous.

Other States have done it. And, more importantly, the sky does not appear to have fallen in. Have a look at pages 6 to 8 of the briefing paper if you're interested in the details.

Sentences would increase. It is difficult to dispute that, if the law was changed as suggested, the sentences for these criminals would be longer. I think the community would approve of that, and, for once, I think the community would be right. To take the example of Singh, he should be punished as a murderer, because that is what he is.

It is impossible to accurately estimate what his sentence might have been had he been convicted of murder but been able to plead provocation, but it would have been several times as long.

It's too easy to prove. To again use Singh as an example, we have only his word that his wife said anything to provoke him. As the briefing paper said:
How could the prosecution in Singh's case possibly prove beyond a reasonable doubt that he had not been provoked by his wife? As is so often the case, the only person who could deny the provocation is the victim.

Some people have suggested reversing the onus, or at least forcing the defendant to prove provocation on balance, and if the defence is to be retained then that would appear to be an excellent suggestion.

Ordinary Person. This is a slightly obscure objection, but I have a difficulty with the "ordinary person" test. Are there any circumstances that could motivate the "ordinary person" to form an intent to murder? The test takes into account age and maturity, but I still struggle with the suggestion that there are anything other than the most incredible circumstances that could cause an ordinary person to intend to murder.

Of course, juries over the years have found that an ordinary person might have formed the intention to murder, so I'm not sure what we are to do with that. Are juries just too confused by the (very complicated) "ordinary person" test and simply allowing leniency to an accused person they felt sorry for?

The Special Treatment of Murder. As I have explained above, no other offence has a partial defence of provocation, not even very serious violence offences carrying 25 years gaol as a maximum penalty. This does not appear to be causing any great difficulty, so it is reasonable to assume the same if the law on provocation in a murder is changed.

More subtlety on sentence. If the problem of how to deal with provocation is given to a judge on sentence, then the judge can make as much allowance as he or she deems appropriate.

At present, a finding by a jury that a person was provoked immediately reduces the offence to murder and drastically decreases the sentence.

Now, naturally a manslaughter where the provocation was slight will get a heavier sentence, and a murderer who just "misses out" on provocation will get a lighter sentence, but there is nonetheless a huge jump.

If provocation becomes simply another mitigating factor, a judge will be able reduce a sentence exactly as much as is deemed appropriate when the offender's conduct is weighed against the level of provocation.

There is far more to say than that, but it's a start. Hopefully there will be a detailed response published, and I will endeavour to review it as and when it appears.

Disclaimer: I was part of a committee that provided a response to the Provocation Inquiry, These views are, obviously, my own.

1 comment:

  1. Two points:

    (a) If there's a problem with the 'ordinary person' (sometimes phrased as 'reasonable person' or just 'ordinary'/'reasonable' in different legislation) then you've got a lot more that needs reforming than the provocation defence.

    Or, for that matter criminal law.

    Or, for that matter, criminal law, torts, contracts, consumer protection law and almost every area of law one can think of.

    The 'ordinary person'/'reasonable person' criterion is quite possibly the single most commonly applied criterion in the law, going well beyond the sphere of criminal legislation. I'm not saying that it isn't problematic - every lawyer and law student has at some point studied numerous critiques of it and the difficulties it raises - but it's a long way from being an idiosyncratic feature of the provocation defence.

    (b) In jurisdictions that contain it, the provocation defence has been the primary defence appealed to by battered spouses who have killed their husbands after decades of being on the receiving end of horrendous violence (self-defence not being available in these cases, as even though the women were readily 'in danger', they weren't in danger at they carried out the killing - one example being where the husband told the defendant that he was going to sleep, but he intended to kill her when he woke up, leading to her killing him in his sleep - self-defence wasn't available because she could have fled and contacted police while he was asleep).

    It would seem that such cases are precisely the kind of case that would merit a provocation defence. Most notably, by shifting the conviction from murder to manslaughter, there is little change in the maximum available penalty, but greatly reduces the 'floor' (whether in terms of legislative minimum penalties for murder, or case-law sentencing guidelines), which enabled the Judges in these cases to give non-custodial sentences and spent convictions in light of evidence of hundreds of assaults suffered by the defendants at the hands of their partner over the years.

    It is difficult to see any other legal doctrine that could substitute for the provocation defence in such cases. Simply making provocation a consideration at sentencing does not grant the same protection as changing the charge to manslaughter, as you note in your article. If the problem is simply one of 'well she still intended to kill the husband, that makes her a murderer by definition', then one's definition of murder - at least in the context of commonwealth countries that inherited the English legal traditions - is inaccurate, as the provocation doctrine and the distinction thereby drawn between murder and manslaughter existed well before the codification of the modern criminal law.