lc290 Partial Defences to Murder report - Law Commission

this topic below. 46 Except in such cases, we are satisfied that where D kills V in
response to provocation by a third party the objective test would preclude this
defence. No person of ordinary tolerance and self-restraint would deliberately
respond to provocation from one person by using violence to another.
Does the defendant need to be the sole or immediate sufferer from the
provocation?
3.73 We do not intend that the defence of provocation should be restricted to cases
where the defendant is the sole or most immediate sufferer from the provocation.
It would be an absurdly narrow approach to suggest, for example, that it could
not apply to a parent whose child was raped but only to the child. The Western
Australian Criminal Code 47 limits provocation to a wrongful act or insult done to
the defendant or “to another person who is under his immediate care, or to whom
he stands in a conjugal, parental, filial or fraternal relation, or in the relation of
master and servant.” We see problems in trying to define a precise list, and most
jurisdictions have not done so. We think that a jury would be able to recognise
that where there is a close personal connection between the defendant and the
person directly wronged, the defendant may well have a feeling of suffering jointly
from the wrongdoing so as to fall within the principle of the formula which we
have proposed.
3.74 We have considered whether provocation should be confined to cases of serious
and unlawful actual or threatened violence to the person; or criminal conduct; or
provocation by conduct only, as distinct from words. In common with many
respondents, we see real difficulties with inflexible provisions of that kind for
reasons which we develop in the following paragraphs. We begin with the general
observation that it is very difficult to foresee and catalogue in specific terms every
form of conduct which might deservedly be thought to qualify for the defence, but
that the governing principles ought to be capable of articulation.
The impact on domestic violence
3.75 Our terms of reference ask us to have particular regard to the impact of the
partial defences in the context of domestic violence, and we have done so. The
responses which we have received for the most part have not been polarised on
male – female lines. There is not, for example, a single ‘feminist’ position. We
have had very helpful responses from a number of women’s groups, and these
expressed a range of views. One theme which emerged strongly is that a person
may feel imprisoned in an abusive and humiliating relationship without being the
victim necessarily of serious physical violence. One group proposed abolishing
the defence of provocation and replacing it with a partial defence of selfpreservation
on the grounds of domestic violence, but they recommended the
definition of domestic violence used in the New Zealand Domestic Violence Act
1995, which defines it as physical, sexual or psychological abuse, including but
not limited to intimidation and harassment. This group was not alone in
recommending that any reforms should include a comprehensive legal definition
46 Paras 3.153 – 3.160.
47 Section 245.
48