The+Doctrines+of+Self-Defence+and+Provocation

Provocation
Provocation operates as a partial defence, and where successfully invoked it will reduce a conviction for murder to a lesser crime of voluntary manslaughter. The underlying rationale for the doctrine of provocation is that of human frailty, and the tendency of human beings to react unexpectedly to situations in which they are provoked.

The defence of provocation is only viable where the prosecution has already discharged its evidential burden of proving each of the elements for the crime of murder. When raised, the defendant bears the evidential burden of proving each of the elements of the defence.

**The Conduct Element**
The court can have regard to all of the circumstances of the case, and have tended in recent times to construe the 'coduct element' widely.

In R v Parker, the accused ran down the victim after driving with the intention to do so. The court held that the cumulative effect of the victim's conduct (i.e. taunting and riding away with the accused's wife) was provocative and that the provocative conduct continued up until the act of killing.

According to Moffa v R, words alone are sufficient to ground the defence, so long as they are of a violently provocative or exceptional nature


 * Other cases:**
 * R v Gardner
 * R v Fisher
 * R v Arden
 * The Queen v R
 * Roache v R

The Subjective Element
The subjective element of provocation requires:
 * 1) That the defendant has in fact lost his or her self-control as a result of the provocative conduct; and
 * 2) that as a consequence of that loss, and while still being in a state of loss, the defendant killed the person involved in provoking the defendant.

The defendant must lose self-control for provocation to be available. However, it should be noted that the provocative nature can induce the defendant to lose control out of anger of fear according to Van Den Hoek v R.

The court will take into account the time that lapses between the provoking event and the actions of the accused. The larger the amount of time that passes, the less credible the defendant's argument will become.

The Objective Element
The objective test, which was elucidated in R v Masciantonio and R v Stingel, consists of two limbs that may be expressed in terms of whether the provocation was such that a hypothetical ordinary person in teh same circumstanes of the accused:
 * 1) might have been provoked; and
 * 2) might have lost self-control to such an extent as to act as the defendant did in resorting to the use of deadly force

In applying the first limb of the test, the hypothetical person is invested with all of the defendant's attributes, save for the exceptions of being in a self-induced state of intoxication or having an unusually excitable personality. These exceptions were provided by DPP v Camplin.

The second limb requires that a hypothetical ordinary person in the same circumstances might have lost self-control to such an extent to kill. The only personal attribute that is credited to the hypothetical ordinary person is the defendant's age.

Self-Defence
It is recognised at common law that a person may lawfully use force in order to prevent an imminent and unjustified use of the same against his or her person.

As with provocation the evidential burden of raising the defence rests with the defendant, and then it falls on the prosecution to negate one of the elements beyond reasonable doubt.

Zecevic's case outlines the requirements for self defence to be made out, and involves both a subjective and objective element:
 * 1) the defendant must have held the honest belief that it was necessary to use force and in the amount of force that actually used; and
 * 2) there must be reasonable grounds for the defendant's belief in regard to both the need to use force and the aount of force used.

There is no requirement that the defendant actually be under attack, just that it a belief exists that the force was necessary.

According to Howe v R and R v Viro, the court contemplated the situation where the defendant provoked the initial conduct and then claims a right to defend himself against a retaliation. In this situation, the court directed the jury to consider whether the original aggression had ceased so as to enable the defendant to form a reasonable belief that additional force was necessary to defend him or herself.