421. The Older Law. At common law and under the Codes, murder will be reduced to manslaughter if the act which caused death was done in the heat of passion, involving a loss of self-control which was caused by provocation sufficient to deprive an ‘ordinary person’ of self-control.[24] Provocation was developed as a defence in recognition of the psychological reactions which may be set in motion by the behaviour of the deceased.[25] The law recognises that the behaviour of the deceased can be such that it would cause a ‘reasonable’ or ‘ordinary’ person to lose self-control. But the concession to ‘human frailty’ has, at least since the nineteenth century, been tempered by the requirement that the provocation be sufficient to be capable of provoking a ‘reasonable’ or ‘ordinary’ person. For a time, at least, this test was applied in a relatively rigid way, excluding cases arising from abnormal susceptibilities or circumstances.[26] This was a fully ‘objective’ test, preventing a defendant’s peculiarities from being considered for the purpose of the application of the defence. The ordinary or reasonable man, even in Australia, was deemed to be the ordinary Englishman with no ‘peculiarities’. The ethnic, cultural, or racial background of the defendant (if different from that of the ordinary Englishman) was considered to be a peculiarity of the accused, and thus irrelevant in the jury’s consideration of provocation.[27] By similar reasoning, it was held that, other than in very exceptional circumstances, mere words could not constitute provocation? But, whatever the reaction of the ‘ordinary’ Englishman to mere words, the use of some words, for example, prohibited words in an Aboriginal community, can be extremely provocative.

422. Application of the Older Law of Provocation to Defendants from Differing Cultural Backgrounds. This law came to be applied, both in England and elsewhere, to persons from very different cultural and ethnic backgrounds. In such cases, the ‘ordinary’ or ‘reasonable’ Englishman’s mode of behaviour was often an inappropriate test by which to judge the values and beliefs of the defendant or the defendant’s immediate community. An Australian example is R v Young,[28] where the defence of provocation was held not to be available to an Aboriginal woman. The trial judge’s withdrawal of provocation from the jury was upheld by the Court of Criminal Appeal. Implicit in the judgment is the application of a purely objective test, unrelated to the defendant’s actual situation and perception of it.[29] But it is very doubtful whether this approach was necessary even under the law as it then stood. The inappropriateness of a purely objective test had been admitted by the Privy Council on appeal from the West African Court of Appeal. The Privy Council, in discussing provocation, pointed out that:

The tests have to be applied to the ordinary West African villager, and it is on just such questions as these that the knowledge and common sense of a local jury are invaluable.[30]

423. A More Flexible Approach Applied to Aborigines. This dictum provided a basis on which at least some Australian courts took account of local circumstances or perceptions in applying the defence of provocation to traditional Aborigines. For example in a series of unreported cases in the Northern Territory Supreme Court during the 1950s, Justice Kriewaldt introduced a degree of cultural sensitivity into the criminal law in this way.[31] In one case Justice Kriewaldt directed the jury as follows:

If you think that in the circumstances prevailing in that particular locality the abandonment of a young child … by the person appointed to look after it … would cause an ordinary reasonable person in that vicinity and of that description, so to lose control of his emotions as to retaliate with a spear then you would be entitled in this case to find a verdict of manslaughter.[32]

Similarly, in R v Muddarubba in 1956, he declined to apply the English rule (restated two years earlier by the House of Lords in Bedder[33]) that mere words could not constitute provocation. His Honour explained:

In my opinion, in any discussion of provocation, the general principle of law is to create a standard which would be observed by the average person in the community in which the accused person lives. It is clear from the cases decided by courts whose decisions bind me that in white communities matters regarded as sufficient provocation a century ago would not be regarded as sufficient today. This suggests that the standard is not a fixed and unchanging standard; it leaves it open, and I think properly so, to regard the Pitjintjara tribe as a separate community for the purpose of considering the reaction of the average man. I tell you that if you think the average member of the Pitjintjara tribe … would have retaliated to the words and actions of the woman by spearing her, then the act of spearing is not murder but manslaughter.[34]

This position was adopted by some other courts in Australia. For example in R v Rankin, Justice Campbell stated:

The accused was born at the Aboriginal settlement at Woorabinda in Central Queensland where he lived most of his life and it was there that the alleged crime was committed. I propose to direct the jury that the question which they must consider is whether the provocation was sufficient to deprive an ordinary Aboriginal who lives in an Aboriginal settlement of his power of self-control. A cross-section of such Aboriginals appeared before the jury and gave evidence.[35]

So the ‘objective’ test in provocation was qualified in the case of at least some Aboriginal defendants, to take into account the beliefs and reactions of an ordinary Aboriginal living in the defendant’s community or circumstances. This enabled courts and juries to find provocation in cases where the defendant was affronted by a breach of customary law: for example, by severe neglect of a child by the person looking after it,[36] by uttering a forbidden, extremely offensive term,[37] or by disclosing tribal secrets.[38] In such circumstances, the view was taken that an ordinary Aborigine in the defendant’s situation might well be provoked. If so, the defendant’s offence was reduced to the lesser offence of manslaughter, with consequent reduction in sentence.[39] This more flexible approach was generally welcomed in the literature,[40] but it was by no means clearly established in law. The decisions were all at first instance, and therefore had little weight as precedents. Secondly, there were conflicting decisions, for example in Queensland.[41] Thirdly, it was not settled to whom the ‘relaxed’ rule should apply. The cases seemed to suggest a limitation to Aborigines living in a ‘separate community’: the extent and effect of this limitation remained obscure.[42]

424. The New Law of Provocation. In Director of Public Prosecutions v Camplin,[43] the defendant, a 15 year old, had killed the victim who had forcibly buggered and then jeered at him. The trial judge directed the jury to pay no attention to his age or characteristics, following Bedder’s case.[44] The House of Lords unanimously refused to follow its own decision in Bedder’s case, holding that all the circumstances, including the defendant’s age and characteristics (other than personal characteristics of self-control) were relevant in assessing whether a ‘reasonable man’ would have been provoked. As Lord Morris said:

If the accused is of particular colour or particular ethnic origin and things are said which to him are grossly insulting it would be utterly unreal if the jury had to consider whether the words would have provoked a man of different colour or ethnic orig in — or to consider how such a man would have acted or reacted.[45]

Thus the House was prepared to refine the test of provocation by introducing a greater degree of subjectivity, allowing the jury to consider the characteristics (including culture and ethnic origin) of the defendant. This important development had been anticipated, and has since been followed, in Australia. In Moffa v R, decided the year before Camplin. Chief Justice Barwick stated that:

There is nothing suggested about the applicant, his disposition or mental balance, which could be called in human terms extraordinary. That he was emotionally disturbed by his wife’s disclosed attitude to him did not make him…other than an ordinary man’ and in particular, other than an ordinary man of his ethnic derivation. If the use of the word ‘reasonable’, in the statement of what is called the objective test in relation to provocation, would exclude from consideration such emotional reactions, I have even greater reason for preferring the description ‘ordinary’ man in the formulation of the test.[46]

This reference to ‘ethnic derivation’ seemed to affirm the propriety of considering the cultural background of a defendant such as Moffa, an Italian migrant. Nonetheless, in R v Webb, decided before Camplin’s case but after Moffa, Chief Justice Bray held himself bound to follow Bedder’s case, at the same time clearly disapproving the result.[47] In this respect Camplin’s case has freed Australian as well as English courts to adopt the standards of an ordinary person in the defendant’s situation, rather than some abstract disembodied standard of reasonableness. This is true both in common law and Code jurisdictions. Thus in R v Dutton,[48] the South Australian Full Court followed Camplin in preference to Bedder as a matter of Australian common law. Justice Cox concluded that:

The ordinary man against whom the actions of the accused are to be judged is one possessing all the characteristics and idiosyncrasies of the accused himself — age, sex, race, colour, physical defects and so on — that would have affected his conduct in the circumstances in which the accused found himself, with the exception of any extraordinary excitability or pugnacity that the accused happened to possess.[49]

A similar conclusion was reached by the Tasmanian Full Court. Justice Crawford held that the deceased’s characteristics were to be attributed to the ‘ordinary’ person’ for the purposes of provocation, relying upon Camplin.[50]

425. The New Law of Provocation and Traditional Aboriginal Defendants. It seems clear then that the law as stated by the House of Lords in Camplin v DPP[51] and in the recent Australian cases cited in the previous paragraph now also represents the law. Under this ‘situational’ test for provocation, the developments made by Justice Kriewaldt, specifically to cope with Aboriginal defendants, can be explained and upheld on a broader basis. However it is sometimes suggested that the test of provocation is, or at least ought to be, entirely subjective, that is, whether the defendant was in fact provoked by conduct so as to lose’ his self-control.[52] The same view has been urged by some commentators and law reform agencies,[53] although by no means unanimously.[54] On the other hand, although the scope and flexibility of the defence of provocation have been considerably extended,[55] the objective test, qualified as in Camplin, remains the law in Australia, both as a matter of common law[56] and in the Code States.

426. The Case for a Subjective Test. The question remains whether this situation is satisfactory in the case of traditional Aboriginal defendants, in the context of an inquiry into the recognition of Aboriginal customary laws. It might be thought that a purely subjective defence would enable the actual motives and influences, especially cultural or traditional influences, affecting the particular defendant to be taken into account, more effectively than any version of an objective test. The argument is, however, unpersuasive. It would be different if the law, through imposing an objective test based on the experiences, beliefs and reactions of a member of the ‘majority’ culture, were to regard the beliefs, culture and conditioning of traditional Aborigines as ‘abnormal’ or ‘unreasonable’ and thus irrelevant in assessing provocation. That would be a failure to recognize the influence of Aboriginal customary laws and traditions. But that is not the present law. All these factors are relevant in assessing the responses a traditionally oriented Aborigine might ordinarily make to provocation. Aboriginal customary laws, at least where adherence to them is a ‘particular’ characteristic of the offender,[57] may be indirectly ‘recognized’ now through a reduction of murder to manslaughter, if the particular response was sanctioned by — or understandable in terms of- Aboriginal customary laws, traditions or beliefs. The adoption of a purely subjective test for provocation is thus not an issue in the context of the present Reference.

427. Evidentiary Questions. Under the Camplin test the criterion for the availability of provocation is the reaction of an ordinary person in the defendant’s circumstances. In the case of a traditional Aboriginal defendant, it has been suggested that white juries:

would be likely to base their views on provocation not on any precise knowledge of Aboriginal custom and law but on folklore about how Aborigines behave.[58]

One answer would be to allow evidence to be called to show:

that the type of provocation the defendant received was perceived by him as more serious than it would be by a white person and that the way he responded to it was socially sanctioned, that is that it was in accordance with tribal law.[59]

However in Camplin at least some members of the House of Lords thought that evidence would not be admissible to prove the likely reaction of an ‘ordinary person’ in the defendant’s circumstances. This was a matter for the jury.[60] If this view were to prevail, a non-Aboriginal jury[61] might well be reduced to uninformed speculation on this question. It does not seem right to make the issue one of the defendant’s own cultural background and influence, but to deny the defendant the opportunity to demonstrate to the jury what these are. A provision, similar to section 7 of the Customs Recognition Act (PNG), could be enacted to allow evidence of customary law to be taken into account for the purpose of:

  • deciding the reasonableness or otherwise of an act, default or omission by a person;

  • deciding the reasonableness or otherwise of an excuse.[62]

Whether evidence of Aboriginal customary laws for these purposes is admissible has not yet been decided by an Australian appellate court. However such evidence is undoubtedly admissible to assist in explaining the defendant’s actual state of mind, which is a necessary component of a defence of provocation.[63] It may be too refined a view to allow the evidence for that purpose, but not for the purpose of assessing the reactions of an ordinary traditional Aborigine in the defendant’s circumstances. It seems that in at least some of the Australian cases at first instance evidence of this kind has been accepted.[64] If this represented present Australian law then no special rule would be necessary to cope with situations arising under Aboriginal customary law.[65] On the other hand, the law is by no means clear on the point, and it should be clarified in the interests of certainty.[66]

[24]For the position under the Codes see Howard, 88-9. Unlike most other defences, at common law provocation is available only to a charge of murder, and perhaps, attempted murder: P Fairall, ‘Provocation, Attempted Murder and Wounding with Intent to Murder’ (1983) 7 Crim L Rev 44. In the case of other offences it goes to mitigation of sentence only, not to liability. Generally on provocation see Howard, 77-89; Glanville Williams, 477-503. Under the Codes, provocation is available to a charge of assault (including any offence for which assault is an element): Kaporonovski v R (1973) 133 CLR 209.

[25]Or, perhaps, a third person: cf Howard, 86-7.

[26]eg Bedder v DPP [1954] 2 All ER 801.

[27]Holmes v DPP [1946] AC 588; Bedder v DPP [1954] 2 All ER 801.

[28][1957] Qd R 599 (CCA).

[29]id, 602 (Philp J, with whom Hanger J agreed), relying on Bedder’s case. O’Hagan J decided the case on evidentiary grounds: id, 604. cf also R v Callope [1965] Qd R 456 (CCA), another case of provocation being withdrawn from the jury where the defendant was Aboriginal. The Court referred only to ‘the standard of the ordinary person’: id, 463.

[30]Kwaku Mensah v R [1946] AC 83.

[31]See N Morris & C Howard, Studies in Criminal Law, Oxford, Clarendon Press, 1964, 93-4.

[32]R v Patipatu [1951] NTJ 18, 20.

[33][1954] 2 All ER 801.

[34][1956] NTJ 317, 322, cited by Morris & Howard, 96.

[35][1966] QWN 16; [1966] QJPR 128. R v Callope [1965] Qd R 456 (CCA) was cited by counsel for the Crown as authority for an entirely objective approach, but was not referred to by Campbell J.

[36]R v Patipatu [1951] NTJ 18.

[37]R v Muddarubba [1956] NTJ 317.

[38]R v Sydney Williams [1976] 14 SASR 1.

[39]A similar position was arrived at by the Supreme Court of Papua New Guinea. See the cases cited by RS O’Regan, ‘Provocation and Homicide in Papua and New Guinea’ (1971) 10 UWAL Rev 1, esp 8-12, and ‘Ordinary Men and Provocation in Papua and New Guinea’ (1972) 21 ICLQ 551. See also JF Hookey, ‘The “Clapham Omnibus” in Papua and New Guinea’, in BJ Brown (ed) Fashion of Law in New Guinea, Butterworths, Sydney, 1969, 117; K Wilson, ‘Provocation in Papua New Guinea’ (1981) 5 Crim LJ 128.

[40]Morris & Howard; B Brown, ‘The “Ordinary Man” in Provocation: Anglo-Saxon Attitudes and “Unreasonable Non-Englishmen”’ [1961] Crim L Rev 41. cf the rather more reserved view of Glanville Williams, 492. The most perceptive account is, however, that of Eggleston: E Eggleston, Fear, Favour or Affection, ANU Press, Canberra, 1976 293-6, pointing out that to assume that an Aborigine is more readily provoked to violence than a white man is facile. The difference is cultural, not racial: id, 294-5. The real point, overlooked by some commentators and perhaps by Kriewaldt J himself, is that the standard for provocation in the case of traditional Aborigines is not necessarily ‘more relaxed’ (cf R v Macdonald [1953] NTJ 186, cited by Morris & Howard, 95, where Kriewaldt J referred to ‘the lesser degree of provocation needed before an aboriginal of Australia loses his self-control’). Rather, it is different, because of the different perceptions and values held. In some circumstances conduct which might provoke an Aboriginal might not provoke a non-Aboriginal. The reverse is also true. For example, in many Aboriginal communities there is an extremely high level of tolerance towards misbehaviour by children. An ‘ordinary’ Aborigine would not be provoked by such misbehaviour, even when an ‘ordinary’ non-Aboriginal might be. This meets Eggleston’s objection but it follows that evidence of the particular belief or cultural trait must be available, and that this evidence must be relevant to the particular defendant and the provocation shown: see para 427.

[41]See n 29, 35. cf R v Panerkar (1971) 5 CCC (2d) 1 (Saskatchewan CA), where evidence of cultural differences was ignored by invoking the ‘ordinary man’.

[42]Why should a defendant cease to be influenced by ‘ordinary’ aspects of his culture or beliefs merely because he was not within his own community at the relevant time?

[43] [1978] AC 705.

[44][1954] 2 All ER 801.

[45][1978] AC 705, 721. cf id, 727 (Lord Simon).

[46](1977) 13 ALR 225, 227. The replacement of the ‘reasonable’ by the ‘ordinary’ man, referred to by Barwick CJ, had been effected by the High Court in Johnson v R (1976) 11 ALR 23, and was affirmed (by a majority) in Moffa. See also P Fairall, ‘The Objective Test in Provocation’ (1983) 7 Crim LJ 142.

[47](1977) 16 SASR 309, 313-4.

[48](1979) 21 SASR 356.

[49]id, 377. King CJ (id, 358) and Sangster J (id, 364, though dissenting on the facts) agreed.

[50]R v Bedelph (1980) 1 A Crim R 445, 456-7. Green CJ and Everett J concurred. The same test has been applied in NSW: R v Croft (1981) 3 A Crim R 307; in Victoria: R v Dincer [1983] VR 460; R v O’Neill (1981) 4 A Crim R 404; in WA: Censori v R [1983] WAR 89, and in NZ: R v Taaka [1982] 2 NZLR 198; R v Dixon (1983) 7 Crim LJ 122.

[51][1978] AC 705.

[52]eg Moffa v R (1977) 13 ALR 225, 243 (Murphy J); Johnson v R (1976) 11 ALR 23, 63 (Murphy J).

[53]eg A Samuels, ‘Excusable Loss of Self-Control in Homicide’ (1971) 34 Mod L Rev 163; GP Fletcher, Rethinking Criminal Law, Little Brown, Boston, 1978, 242-50. Both in South Australian and Victoria, abolition of the ‘objective’ test has been recommended: SA, Criminal Law and Penal Methods Reform Committee (Chairman: Justice RF Mitchell), Fourth Report. The Substantive Criminal Law, Adelaide, 1977, 27-8; Victorian Law Reform Commissioner, Report No 12, Provocation and Diminished Responsibility as Defences to Murder, Melbourne, 1982, 17, 47.

[54]cf AJ Ashworth, ‘The Doctrine of Provocation’ (1976) 35 Crim LJ 292. An amendment to the New South Wales Crimes Act in 1982 extending the scope of provocation in various ways, retained the ‘ordinary person’ test: Crimes Act 1900, s 23(2).

[55]eg in the context of domestic violence: R v R (1981) 28 SASR 321; M Wasik, ‘Cumulative Provocation and Domestic Killing’ [1982] Crim L Rev 29. The requirement of proportionality is now one of fact rather than law, and there is no rule that mere words cannot constitute provocation: Johnson v R (1976) 11 ALR 23. See also Crimes Act 1900 (NSW) s 23, noted (1982) 6 Crim LJ 168; D Weisbrot, ‘Homicide Law Reform in New South Wales’ (1982) 6 Crim LJ 248.

[56]Johnson v R (1976) 11 ALR 23, 34-5 (Barwick CJ); Moffa v R (1977) 13 ALR 225.

[57]cf R v McGregor [1962] NZLR 1069, 1081-2; Newell v R (1980) 71 Cr App R 331.

[58]Eggleston (1976) 296.

[59]id, 295.

[60][1978] AC 705, 716 (Lord Diplock), 727 (Lord Simon). The issue here was not precisely the same. A mere expression of a witness’s opinion as to how an ‘ordinary’ man should or might have reacted might well be thought to involve an attempt to decide the very issue of evaluation which is for the jury. But the case under consideration here is the effect upon a traditional Aborigine of some provocative act, in accordance with or against a background of the traditions rules and beliefs of his community. This is not only a matter affecting what an ordinary Aborigine might do, under the Camplin test, but one as to which the jury are likely to be unaware and inexperienced, and about which concrete evidence, as distinct from speculation, could be offered.

[61]It is rare for an Aborigine to serve in a jury, even (indeed perhaps especially) where the defendant is Aboriginal. The matter is discussed at para 586-594.

[62]See para 406.

[63]See para 416.

[64]cf R v Rankin [1966] QWN 16 where Campbell J pointed out that ‘a cross-section of Aboriginals [sc living on an Aboriginal settlement] appeared before the jury and gave evidence’.

[65]For general questions of the proof of Aboriginal customary laws see ch 24-6.

[66]See para 445.