Provocation

We’ve had a series of fatal and near-fatal one-punch assaults in Queensland recently, several captured on CCTV. An even worse case, except that by pure luck the victim managed to put out his hands and avoid a severe head impact was shown recently. One attacker holds the victim to let a second punch him, after which the first (much bigger) attacker delivers a “king hit” and walks off.

What shocked me about this was the alleged attacker’s lawyer, who claimed that he might have a defence of “provocation”. This medieval defence was scaled back after it was used, successfully, by a man who beat his girlfriend to death with a steering wheel lock in 2005 as a result of jealousy, but it apparently remains available to street thugs whose attacks don’t cause grievous bodily harm.

When combined with recent “one-punch” laws, the result is an absurdity. A thug who throws a punch in response to an insult* can’t predict what will happen next. If the victim falls the wrong way and dies, it’s a mandatory 15-year minimum. But if the victim is lucky, so is the thug – he can get off scot-free, or nearly so, with a defence of provocation.

Regrettably, but predictably, the Queensland Law Society has sought to maintain this barbaric defence at every stage. The Law Society’s determination to keep every possible defence open, no matter how anachronistic, undermines more reasonable concerns they have raised with respect to issues such as mandatory minimum sentences.

* Actual or claimed

47 thoughts on “Provocation

  1. Ikonoclast :
    If one wishes to remove provocation as a defence from the books entirely then one, from a position of enlightened self-interest, must be; confident there is a very low probability one could ever be provoked into violence; or confident there is a very low probability of being confronted with a situation of sufficient provocation; or willing to take the full moral and criminal punishment consequences

    That seems like a perfectly fine definition of “adult” to me. Part of growing up is realising that you can’t just hit people that annoy you.

    I’ve spent many years protecting various things, and a part of that is both dealing with provocation, often deliberate and legally protected provocation, while being willing to go to jail for almost any infraction. Protesters, like other annoying minorities, often don’t get the benefit of discretion from Police, and often get deliberate provocation.

    Provocation is of a piece with “stand your ground” and other laws that are designed to escalate situations. I think that’s bad, and we should have a legal system that encourages de-escalation and punishes people who won’t back down. Violence should be discouraged.

    I suspect I’m out the other side from many, because I specifically think that Police should face the same default investigation by an unrelated party when they use force as civilians do. Possibly only kicking in when they injure someone, but it should exist.

  2. I think that’s bad, and we should have a legal system that encourages de-escalation and punishes people who won’t back down.

    Sure.

    But you need to remember: when we have a situation where someone gets punched, we cannot tell by that act of punching alone which of the people involved was the one who “wouldn’t back down”.

    Anyone here bullied as a child, or looked at the literature? Or you can see broadly the same results in studies on on-line trolling: “just ignore it, walk away” doesn’t work, and if there’s no authority figure there to force de-escalation on the other party…

  3. Seems to me that once a case reaches a jury court, there are only two places where mitigating circumstances (surrounding the alleged unlawful act) may be considered: either as part of a defence argument which the jury hears and considers, or after a guilty verdict and as part of the sentencing process in which the judge considers mitigating circumstances in deciding leniency. In the former, the jury has the power of discretion; in the latter, it is the judge who has power of discretion—except where mandatory sentencing laws are perforce.

    Verbal provocation in a one-off situation, such as when two strangers end up in a verbal altercation, shouldn’t be a defence or a partial defence against an unlawful act like punching the verballer.

    When the provocation is in the context of a chronically abusive relationship, more care is needed in deciding whether it is admissible as a defence for killing/assaulting the abuser. If not provocation, then something like it should be available for a jury to consider. It seems that across the nation, we have some disparity in the law on this matter.

    The difficulty is that there is something of a “pincer movement” against options for a defence in a jury court on the one hand, and the judge’s discretion in considering mitigating circumstances when deciding upon the sentence to hand down, on the other hand. Mandatory sentencing laws tie the judge’s hands, while removal of valid arguments for defence ties the jury’s hands. The meat in the sandwich is the defendant, and the context in which their case is heard.

    Simple verbal provocation in a one-off incident really shouldn’t be grounds for any unlawful action, including assault that results in serious injury or death of the provoker.

    On reading the law, it left me wondering how much discretion a jury has in deciding whether physical contact constitutes a “strike” or not, for the purposes of the law. If someone were to slap another person’s face, and if that person lost balance and fell, striking their head and dying as a result of that injury, would a light slap be considered as somehow distinct from a full force slap? Or is it the contact made that constitutes the strike?

    Makes me glad I’m not a lawyer 🙂

  4. @Donald Oats

    As I said in the OP, sticking by the indefensible provocation defence weakens the Law Society’s position when they oppose mandatory minimums.

    To the general public, they just appear pro-criminal. I think a more accurate statement of the case is professional amour propre. Despite appalling injustices like the 2005 case cited above happening on their watch, the Law Society is determined that non-lawyers shouldn’t have any say in the way things are done.

  5. @Donald Oats

    Every case is unique. The discrete peculiarities, multiple oddities and general “truth is stranger than fiction” aspects of criminal law cases mean that the law as written is just a very course sieve. It certainly cannot be written to meet every situation. The nuances, permutations and combinations of criminal situations are effectively infinite. A lot more sieving and discrimination happens at all further levels of the law and court process. Finally the collective experience and wisdom of the jurors is much relied upon. It’s still an imperfect process but the best we have. This may be one situation (current criminal law and court process) where “Popperian tinkering” is the best option. We just have to remember that altering one variable in the entire “equation of law” can alter or impinge on a lot of other variables.

  6. There is, in the Queensland code, a complete defence for provoked assault. JQ is right about this and I was wrong. But this defence (quite different from the use of provocation to reduce murder to manslaughter) applies to the provoked assault only ‘if the force used is not disproportionate to the
    provocation and is not intended, and is not such as is likely, to
    cause death or grievous bodily harm’ (s269; and similarly the ‘stopping insult’ rule s270). And, as already noted by others, no lawful act can amount to provocation in Queensland for this purpose (s268(3)).
    The case suggesting the proposed changes was a ‘murder reduced to manslaughter’ case. The suggested changes were directed to excluding some additional things from provocation, for Queensland purposes, and presumably would apply both to the ‘murder to manslaughter’ and ‘defence to assault’ uses of provocation there. But the Queensland code would retain both uses of provocation as redefined.

  7. @John Quiggin

    “Despite appalling injustices like the 2005 case cited above…”

    Is this a case of confirmation bias? Has anyone searched for cases where the provocation defence might have prevented injustice towards the accused? If provocation is removed, could we also remove defences for battered women for example?

    “Analysis by the University of Tasmania’s Rebecca Bradfield looked at 65 cases between 1980 and 2000 in which a woman killed her male spouse after domestic violence. Only 6 cases or 9% resulted in a murder conviction.

    At the other extreme, acquittals are nearly as rare: in Bradfield’s analysis, only 10 cases (15%) resulted in an acquittal. Most were on the basis of self-defence and usually the act conforms with the traditional common law model of an active struggle…

    The most common result in these cases is a manslaughter conviction, generally on the basis of either provocation or an absence of intent (34% and 35% respectively in Bradfield’s analysis).”

    It appears a defence of provocation saved 1/3 of 65 women in these cases from a murder conviction via a downgrade to a manslaughter conviction. Maybe not ideal but it seems an improvement.

    Where does the case for provocation removal sit after considering the above?

  8. @bjb

    ” the scum bags involved should be subject to mandatory prison term. ”

    Mebbe, mate, mebbe. But in Victoria the net cost of keeping somebody imprisoned was $269.56 PER DAY in 2013-2014 FY. So, if we give somebody a 10 year sentence and he (it will almost always be ‘he’) serves every single day of it before becoming eligible for parole, then that would cost my state a total of $984433.12 – and that’s not including any ‘out of incarceration’ expenses (eg Medicare).

    I dunno about you mate, but that seems just a little costly to me – unless, of course, some way could be found for the prisoner to earn at least an additional $98,434 per annum which would be paid into the incarceration account so that the ‘net’ amount can be seriously reduced. But probably we don’t have enough car license plates to paint for every single prisoner to earn that much every year.

  9. So where is the plausible argument that provocation has any possible relevance, even in Queensland, to ‘one punch’ attacks?
    Generally they are wholly without any prior interaction between victim and thumper. Without interaction there can be no provocation.
    Were there is interaction, the Queensland definition of provocation is already pretty limited and necessarily requires something that would break down self control. No example so far has suggested any such something.
    And the Queensland provocation defence to assault only applies ‘if the force used is not disproportionate to the provocation and is not intended, and is not such as is likely, to
    cause death or grievous bodily harm’ (s269). It’s hard to imagine a ‘one punch’ that is not at least likely to cause death or grievous bodily harm, bearing in mind how many ‘one punch’ attacks have caused death or have caused grievous bodily harm. It’s hard to imagine any ‘one punch’ assault that is not disproportionate to a provocation, too.
    There are plenty of issues with provocation in law. But it’s hard to find any relevance to ‘one punch’ attacks in Queensland. The post says a lawyer claimed an attacker ‘might’ have a provocation defence: in theory, sure; but in reality…?

  10. @ChrisH
    “So where is the plausible argument that provocation has any possible relevance, even in Queensland, to ‘one punch’ attacks?”

    It’s plausible enough that it’s been advanced by the defence lawyer in just such a case (except that the first assailant delivered many punches). Maybe the lawyer is just talking nonsense – I assumed she had some basis for believing that the defence might be relevant.

  11. Without something from the lawyer (more than that there ‘might’ be a provocation defence) there’s no obvious way provocation could be relevant. And on the face of the Queensland code requirements there’s pretty good reason to think it extremely unlikely that it could be relevant.

    With a legal requirement that force be not disproportionate, and not such as to be likely to cause death or grievous bodily harm, for Queensland’s idiosyncratic assault defence, the particular case you described would seem to be one where the conditions for the provocation defence to apply could never be met.

    But the assault defence, not general in common law criminal principles outside the murder/manslaughter context, is nevertheless pretty odd and hard to justify whatever the assault. It just doesn’t seem to be a ‘one punch’ issue even potentially.

  12. The Law Society is being extremely conservative with regards to eroding considerations of what constitutes a legitimate defensive act by a citizen. Thinking of the more recent attempts by the Qld legislature to criminalize dissenting behavior I think they are quite justified. Dealing with what passes for “democratic government” in Qld definitely requires a vigilant attitude to whatever hare-brained “solutions” the George Street circus might try to foist on us. Have you _already_ forgotten Newman?

  13. @John Quiggin

    I must admit I find it hard to reconcile your outrage against the outcome of the Damian Sebo/Taryn Hunt murder case with your stated opinion (at #9 in the thread) that it is acceptable for provocation to be treated as a mitigating factor in sentencing.

    Had the jury not had the option of convicting Sebo of manslaughter rather than murder, and Sebo had instead been convicted of murder and subsequently pleaded provocation as a mitigating factor, it is entirely possible (even likely) that the outcome (in terms of the sentence) would have been the same.

    If provocation cannot be acceptably used as a basis for substituting a murder conviction with a manslaughter one (the practical effect of which is a reduced sentence), then why should it be acceptable as a mitigating factor (which has the same effect)? It seems to me that if the first proposition is unacceptable, then so is the second.

  14. @Tim Macknay

    On your logic, I find it hard to see how anything could be a mitigating factor, since anything relevant to sentencing ought to count as a defence against the original charge. Can you explain further?

  15. What if the existing criminal offences of murder and manslaughter were replaced by a single offence (under whatever title) that covered all cases of criminal homicide? This would automatically eliminate any concept of a partial defence (provocation or any other). Is there any advantage in having two distinct offences of murder and manslaughter?

  16. The law on punches resulting in death has already been changed with the creation of a new offence “unlawful striking causing death”, which is punished more severely than manslaughter, but (in general) less so than murder. I’ve already mentioned my opposition to the mandatory sentencing aspect of this law, but the effect is to make provocation useless as either a defence or a mitigating factor in one-punch cases. A step in the opposite direction, back in the 20th century, was to replace manslaughter charges for negligent drivers, on which juries were unwilling to convict, with the new offence of culpable driving causing death. So, the general tendency has been to differentiate these offences more, rather than less.

    To repeat the point of the OP, the issue at hand is not homicide but the availability of provocation as a defence in assault cases, notably those involving street violence, where the outcome does not involve death or grievous bodily harm. The likelihood of the extreme hard cases (eg a woman confronted with the murderer of her child) described in some hypothetical comments leading to charges of assault in such a case seems to me to be minimal, and capable of being dealt with by the good sense of magistrates. By contrast, as long as provocation is available as a defence in general, it will certainly lead to the acquittal of thugs like those described in the OP.

  17. @John Quiggin

    On your logic, I find it hard to see how anything could be a mitigating factor, since anything relevant to sentencing ought to count as a defence against the original charge. Can you explain further?

    Sorry. I evidently didn’t explain myself clearly enough.

    To clarify, my comment was confined to provocation as it applies to homicide cases (which is still on the Queensland statute books, but has been restricted slightly in cases of homicide between persons in a domestic relationship) . In acting to reduce a murder charge to manslaughter, provocation functions as a de facto mitigating factor, by substituting a lesser charge (with attendant reduced sentence on conviction), whereas a de jure mitigating factor would result in a reduced sentence on the original charge.

    It seemed to me inconsistent to say that one approach was acceptable and the other was not, since both approaches would lead, in substance to the same outcome.

    In saying that, I was making the assumption that minimal significance should be accorded to the differences in the nomenclature of the offence (i.e. murder vs manslaughter) and that it was the severity of the sentence that mattered. Clearly, that proposition is debatable. However, in my view, if the objection to the provocation concept is to the underlying principle that some hurtful act or statement regarding an intimate relationship is sufficient to reduce the seriousness of the act of killing one’s significant other (and personally, I do object to that principle), then in my view objection applies equally in such cases, whether provocation is invoked as a ‘partial defence’ or as a mitigating factor.

    I don’t think the logic works in reverse, or is applicable to other mitigating factors, because provocation (in the homicide context) is one of a small number of concepts that give rise to a ‘partial defence’ that, in effect amount to mitigating factors wearing the procedural clothing of defences. The others are diminished responsibility (arising from mental impairment or retardation), and killing for preservation in an abusive domestic relationship.
    I imagine that you would agree that the other ‘partial defences’ differ from provocation int that they do not have the characteristic of being based on an archaic (indeed, as you put it, mediaeval) notion of ‘honour’.

    Regarding your statement that ‘anything relevant to sentencing ought to count as a defence against the original charge’, in theory it would be possible to treat all the factors generally regarded as mitigating factors as ‘partial defences’, although it would be ludicrously cumbersome, given that most mitigating factors (such as youth of the offender, good antecedents and character, remorse, cooperation with authorities, etc) apply to all criminal offences, so virtually every provision in the Criminal Code would need to be amended to accommodate them. In contrast, provocation only applies to murder and assault, and the other ‘partial defences’ only apply to murder. However, the reason I do not consider this argument to be applicable to other mitigating factors, is that it concerns the underlying principle that makes provocation, in particular, a consideration in homicide cases.

    I am in agreement with the view that, in cases of common assault, provocation makes more sense as a mitigating factor than as a defence.

    I hope that clarifies the point I was trying to make …although the number of words I have just typed makes me suspect it probably doesn’t :|.

  18. Saying that the general tendency has been to move in the direction of greater differentiation (of charges/offences) is not the same thing as saying that it’s a good direction to move in. On the other hand, if differentiation is a good idea, wouldn’t it be better to replace the heterogeneous category of ‘manslaughter’ entirely with a series of separate offences, each with a clearer and more specific definition?

    Returning to the subject of assault rather than homicide, under the Queensland Criminal Code provocation is not available as a defence to a charge of assault if the force used was disproportionate to the provocation.

    Here is some text provided to Queensland judges (and anybody else who wants to see it) as a general guide to the sort of thing they might say about provocation (in an assault case) when summing up for the jury:
    http://preview.tinyurl.com/gq3bzzp

  19. ” if the force used was disproportionate to the provocation.”

    This is pretty straightforward, I’d say. Any force with a significant risk of causing injury is disproportionate to any verbal provocation. So, there’s no need for a defence of provocation in relation to assault occasioning actual bodily harm.

  20. This is pretty straightforward, I’d say. Any force with a significant risk of causing injury is disproportionate to any verbal provocation.

    Sure, most of the time. But we write laws for all situations, not just most of them, and “verbal provocation” can include acts that qualify as assault. I don’t think your black-line rule will give good results in that situation, unless you want to extend self-defence pretty significantly.

    [Whether something is “disproportionate” is pretty obviously a context-determined problem, not one susceptible to absolute answers: a “question of fact” in the legal jargon. In our jurisprudential system, “questions of fact” are resolved by the jury.]

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