According to Australian law, provocation may be used as a defense mechanism whereby it may reduce murder case to manslaughter case. This only occurs if the victim provoked the accused. To determine whether the accused was provoked, subjective and objective tests are conducted. The first stage (the subjective test) is determined in Stingel where the prosecutor has to prove beyond reasonable doubt that the accused actually lose self-control. The attorney gives the accused circumstance and the particular disposition of the accused. In the second stage, an objective test is performed where the prosecutor has to prove that the circumstances identified in stage one, may lead to loss of self-control to an extent of committing murder. The accused must be an ordinary person meaning that he/she is not a reasonable person.
This law of provocation requires that provocation must have occurred if the behavior of the deceased occurred within the hearing or sight of the accused. The provocation can be in terms of words or as a result of blackmail. One way in which subjective test is used in the determination of provocation is the time taken for the occurrence of the act. If the act of killing another person as a result of provocation was sudden and immediate, then the court may deem that the accused lost his/her self control (Lanham, Bartal, Evans & Wood, 2006). From this perspective of sudden and immediate reaction that can lead to death, it is clear that there is some discrimination. This law may end up favoring men more as compared to women hence cause injustice to the feminine.
The objective test of ordinary person proof this further that if the standard person does not have the features of the ordinary man, then the court ruling on such instances would result in injustices and discrimination. For Instance, on the aboriginality aspect, the high court judge and juries failed to address the issue of the effects that would result from the police activities of capturing, handcuffing and detaining a group of aboriginal women. For the objective test, the behaviors of the deceased must have induced the accused into that state of killing. Within the first stage of the objective test, the gravity or the degree of provocation is assessed. The personal characteristics of the accused are used to conduct this first stage of the objective test. The feature that may be taken into account includes: age, race, sex, personal relationships, history, physical features and personal attributes (Lanham, Bartal, Evans & Wood, 2006). More so, mental weakness may be taken into account.
On the second phase of the objective test, the manner in which the accused ordinary person responds in relation to the degree of the provocation is assessed by the jury. Other personal features such as age are not put into consideration because anyone goes through the aging process as it is an ordinary process. The accused must demonstrate such features that show that they are ordinary people.
As discussed in the Masciantonio, the determination of gravity of provocation the personality characteristics, attributes, and ethnicity can provide useful information that can help the jury to determine the degree of provocation. Ethnicity is also inclusive in the determination of the gravity of provocation (Coper & Williams, 1997). Subjective factors for instance ethnicity are not used in the determination of whether the provocation was sufficient enough to cause death.
McHugh, J dissenting observed that the difference between the significance of personal characteristics in the determination if the effects of a persons conduct and not the issue relating to the self-control do not depict human behavior. The distinction does not even give an elucidation of the cultural differences. He proposed the abolishment of the ordinary test as he suggested that this problem cannot be remedied by incorporation of the characteristics of the general person of the same age, culture, race and background of the accused person (Coper & Williams, 1997). Taking such actions will not compromise the ordinary person.
If the general features of the ordinary person are not included, McHugh argues that the law of provocation would lead to discrimination, inequality, and injustice. The injustices would result from the fact that the standard reflects the values of the dominant class neglecting the cultural minority class.
Since the 1970s and 1980s, the law of provocation has experienced a tough debate as it was presumed to be biased against women (Coper & Williams, 1997). Due to their exclusion in the ordinary test, this issue even exacerbated the situation of reforming the law of provocation. The motion of the inclusion of women was however rejected on the ground that the jury must have been directed to the measure of self-control by the expected test of the ordinary person of the sex and age of the accused. Women were, therefore, exclude das some of the people in the defense team heavily criticized the act of stripping a woman of her feminist just because she qualifies as a reasonable woman.
A critical analysis of McHugh, therefore, reveals that the concept of age being the only factor differentiating between the standards of ordinary people is restrictive. McHugh Js dissenting judgment in the Masciantonio suggested that the ethnic and cultural backgrounds of the accused can be elucidated by determination of whether the ordinary person would lost their self-control as a result of the deceased provocation (Lanham, Bartal, Evans & Wood, 2006). His argument was that if his ethnicity and culture partially influenced Masciantonio's anger at his son-in-law, would it mean that all the people from his ethnic group and culture would be allowed by jury to do the same act as Masciantonio with claims provocation? Allowing such actions would mean that the jury would lack consistency in jury verdicts because of the different individual opinions on how potential myriad personal features ought to be weighed up against each other.
Intoxication state of the accused of the accused is also another factor that was considered important in the determination of the degree of provocation. However, the intoxication may not be relevant to the ordinary peoples power of self-control. In such cases, intoxication state of the accused could be as a result of addiction (Moran, 2003). If there occur instances where the accused state of intoxication is involuntary, then such a state is relevant in the objective self-control test. Based on the argument, the intoxication becomes a significant aspect of defense.
The mental state of the accused is also important in the determination of their provocative. This aspect helps in assessing the gravity of the provocation for instance where the provoker taunt the defendant with their mental disability (Moran, 2003). Nevertheless, the mental state cannot be taken into account on the ordinary persons power to have self-control. Internal disorders are therefore the only acceptable state of mind that can cause prejudice, pugnacity, and obsession. This should be taken into consideration because it can affect the accused perception of the happenings within their environment. This will make it clear for the jury because if the accused has an insane delusion, then the occurrence of provocative incidence becomes only one mistake rather than lack of control.
The issue of gender also contributed significantly to the controversies of this debate. According to Lord Diplock, the gender of the accused ought to be taken into account. Gender is thought to have a direct link with self-control (Moran, 2003). Based on this concept, the issue of biases, injustices and discriminations arises as women are tested to higher standards as compared to men. The high court of Australia, however, insisted there are still high possibilities that the gender of the accused is put into account when judging the gravity of provocation.
A critical review of McHugh stand and the factors that are used to assess the law of provocation, the initial test can be seen to be local (Findlay, 2007). This is important because the defendant will find it difficult to kill the provoking person with claims that the murder was justified. The same case is what one would have expected were it for the ordinary person. In other case, if the accused does not lose self-control, but instead planned on how to murder another person, then the jury will find it hard because the accused will try as much to make the defendant unstable.
With regard to the second test, it is just far much more ineffective and problematic as compared to the first test. The test itself acknowledges that human beings sometimes lose control especially when they are provoked leading to committing of serious crimes such as committing murder or homicide. It accepts that when people are provoked beyond certain levels they lose their controls, and they can act without their sense being in their normal states.
As the arguments have indicated, everyone is different. The tests, therefore, ought to be made more subjective because some personality capabilities are relative. For instance, losing self- control is something relative. The same case applies to the levels at which various people can tolerate. It becomes difficult to determine the truth using the second test when a person says that they have little self-control. It can, therefore, become an uphill task for the jury to determine the truth if a persona loses their self-control if they say so. The law also should come in and set minimum standards that every person should adhere to. This will mean that the law will not provide greater lenient level due to their weaknesses in losing their control easily
Coper, M., & Williams, G. (1997). Justice Lionel Murphy: Influential or merely prescient? Sydney, NSW: Federation Press.
Findlay, M. (2007). Criminal law: Problems in context. Melbourne [u.a.: Oxford Univ. Press.
Lanham, D., Bartal, B. F., Evans, R. C., & Wood, D. (2006). Criminal laws in Australia. Annandale, N.S.W: The Federation Press.
Moran, M. (2003). Rethinking the Reasonable person: An egalitarian reconstruction of the objective standard. Oxford [u.a.: Oxford Univ. Press.
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