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...blow' that led to a state of dissociation. This article analyses a number of recent Australian cases dealing with provocation and automatism in order to address the question of whether a relationship breakdown should be considered a sufficient factor to exculpate an accused, either partially or totally, from criminal responsibility, it will examine the Victorian Law Reform Commission's recent recommendations that the defence of provocation should be abolished and the current law pertaining to automatism be retained. It is argued that the ambit of claims of provocation or automatism should be restricted such that the breakdown of a relationship should not be sufficient to enable an accused to be completely acquitted or partially excused from criminal responsibility.]
CONTENTS I Introduction II The Defence of Provocation--The Current State of Play A The Cases of Robert Parsons, Michael Leonboyer and Munesh Kumar B The Cases of Midas Conway and Mazin Yasso C The Case of James Ramage III Options for Reforming the Defence of Provocation A Abolition B Restricting the Boundaries of Provocation as a Defence IV Automatism--The Current State of Play A The Case of Dharmander Singh
B The Case of Vasily Karageorges V Options for the Reform of Automatism
A Retaining the Status Quo B A Limited Definition of Automatism C A Broad Defence of Mental Impairment VI Conclusion I INTRODUCTION
In a study of 143 homicides that occurred in Victoria between 1 July 1997 and 30 June 2001, the Victorian Law Reform Commission ('VERC') found that of those killings that were prosecuted, the largest category (31.5 per cent) were homicides occurring in the context of 'sexual intimacy'. (1) Also emerging from the study were distinct patterns between the gender of victim and killer: female victims are more likely to be killed by an intimate male partner, whereas male victims are more likely to be killed by a friend or stranger. (2)
In a study conducted by Kenneth Polk, 79 per cent of the men who killed in the context of sexual intimacy did so out of jealousy or for control reasons. (3) In comparison, when women killed their male intimate partner, it was most likely in response to violence. (4) This finding has consistently been reported in other studies. (5)
The VLRC found that in those killings that proceeded to trial, provocation was one of the most commonly-argued defences and it was generally raised by men who killed in the context of sexual intimacy. (6) The usual scenario portrayed in such cases depicts the accused losing self-control after his estranged partner taunts him about his lack of sexual prowess and compares him unfavourably with another man, (7) or tries to convince the accused that the relationship is over. (8)
In comparison to provocation, automatism in the sense of involuntary conduct arising from a 'psychological blow' is rarely raised in homicide trials. When it is raised, it is usually by men who have killed their estranged partners, (9) their estranged partners' friend (10) or a woman who has rejected their advances. (11)
Tasmania abolished the defence of provocation in 2003 (12) and the VLRC has recommended its abolition, (13) but in most jurisdictions it remains a 'partial defence' that serves to reduce murder to manslaughter. Automatism is not a defence in itself, but evidence of involuntary conduct can be used to cast doubt on the requirement that the prosecution prove that the physical act which caused the death was 'willed' or voluntary. An acquittal results if the prosecution fails to prove that the accused's actions were willed or voluntary. (14)
Provocation and 'psychological blow' automatism in intimate homicides both share a presumption that an accused can 'snap' in the face of some form of threat to self-esteem. Where the defence of provocation operates, the accused intends to kill and wills the act or acts causing death, but is excused for having lost self-control in response to the victim's words and/or conduct. (15) In the case of automatism as a response to an external psychological blow, the accused is said to 'dissociate' to such an extent that he or she completely lacks the ability to control the ensuing conduct. The power of self-control is therefore viewed as an essential element of both provocation and automatism. (16)
In this article, I will analyse a number of recent cases dealing with provocation and automatism in order to address the question of whether a relationship breakdown should be considered a sufficient factor to exculpate an accused either partially or totally from criminal responsibility. The VLRC has recently canvassed a number of options for law reform in this area. It concluded that the defence of provocation should be abolished and the current law pertaining to automatism should be retained. (17) I will analyse some of these options and argue that while it is timely to consider restricting the ambit of claims relating to the loss of or inability to control conduct in the context of a relationship breakdown, the abolition of the defence of provocation and the retention of the status quo in relation to automatism may not be the most appropriate response.
The next section sets out the current law relating to provocation and how various judges have sought to limit its relevance in cases of intimate homicide by serving a gatekeeping role in preventing the defence going to the jury. I will then outline how appellate judges have recently granted retrials on the basis that trial judges have been making moral rather than legal judgments as to the scope of the defence. I will do this by examining the cases of Midas Conway and Mazin Yasso.
I will then turn to an examination of the trial of James Ramage and consider how the jury's acceptance of provocation in returning a verdict of manslaughter gave impetus to the Victorian government's announcement that the defence would be abolished. (18)
The ensuing sections will deal with the law of automatism and its use in the trials of Dharmander Singh and Vasily Karageorges.
II THE DEFENCE OF PROVOCATION--THE CURRENT STATE OF PLAY
The elements of the defence of provocation are set out by the common law, which is currently followed in South Australia and Victoria, and are reflected in the statutory provisions of the Australian Capital Territory, New South Wales and the Northern Territory. (19) The common law has also been held to apply to the interpretation of provocation under s 304 of the Queensland Criminal Code (20) and, by implication, to s 281 of the Western Australian Criminal Code. (21)
The leading High Court case dealing with the defence of provocation is Stingel v The Queen. (22) Although the case concerned the then current provisions of the Tasmanian Criminal Code, (23) the High Court observed that there is a large degree of conformity in the law of provocation, whether it be common law or statutory. (24) The High Court subsequently affirmed that the test in Stingel equally applied to the common law. (25)
The test for provocation consists of both subjective and objective elements. (26) There must be some evidence that the accused was in fact acting under provocation. (27) The content and extent of the provocative conduct is assessed from the viewpoint of the particular accused. (28) This is the subjective element of the defence. In addition, there is an objective requirement that the provocation be of such a nature that it could or might have moved an ordinary person to act as the accused did. (29)
The defence can thus be divided into three fundamental requirements:
* there must be provocative conduct;
* the accused must have lost self-control as a result of the provocation (the subjective test); and
* the provocation must be such that it was capable of causing an ordinary person to lose self-control and to act in the way the accused did (the objective test).
The trial judge must decide whether or not there is sufficient evidence of provocation for the defence to be considered by the jury. In Stingel, the High Court set out the test to be used as follows:
A trial judge must ... be mindful of the fact that the question is not whether he or she considers that there is a reasonable doubt
that the killing was unprovoked.... [T]hat is a question for the
jury. The question for a trial judge is whether there is material
in the evidence which is 'capable of constituting provocation'. The result is that the question for a trial judge ... [is] whether, on the version of events most favourable to the accused which is
suggested by material in the evidence, a jury acting reasonably
might fail to be satisfied beyond reasonable doubt that the killing
was unprovoked in the relevant sense. (30) Despite this direction, for a time, judges in Victoria played a gatekeeping role in preventing the defence of provocation going to the jury in circumstances where an accused had killed his estranged partner. In doing so, these judges pointed to some of the underlying policy problems in allowing a partial defence to murder in circumstances of intimate homicides. The following is an outline of some of these cases.
A The Cases of Robert Parsons, Michael Leonboyer and Munesh Kumar
On 10 December 1997, Robert Parsons killed his estranged partner, Angela Graham, as she was walking toward the Dandenong Registry of the Family Court, where proceedings were scheduled concerning her application for child maintenance. (31)
Robert stabbed Angela 48 times, causing 41 wounds to the neck and upper body. Robert claimed the victim had smiled and laughed at him, saying 'we have got you now you bastard'. The trial judge, Cummins J, withdrew the defence of provocation from the jury and the accused was convicted of murder. He was sentenced to life imprisonment with a minimum nonparole period of 25 years. (32)
On appeal, Brooking JA (with whom Phillips CJ and Hampel AJA agreed) held that the trial judge had been correct in withdrawing the defence. (33) An appeal against sentence was also dismissed. Phillips CJ said:
No reasonable jury could have failed to be satisfied beyond
reasonable doubt that the applicant's reaction to the victim's
conduct fell below--indeed, fell a long, long way below--the minimum limits of the range of powers of self-control that must be attributed to the ordinary person. To hold that provocation arose in this case would be to encourage savagery at the expense of civilised behaviour. (34) On 6 May 1997, Michael Leonboyer stabbed his 19-year-old girlfriend Sandra Morales more than 20 times, after she allegedly told him she did not love him, that she was having an affair with someone else and that the other man 'did it better than what you did'. (35) Cummins J ruled that the defence of provocation should not go to the jury. (36) His Honour found that most of the cases on provocation involved not only words, but actions. (37) His Honour acknowledged that words could wound, but found that to allow the defence of provocation to go to the jury on the facts 'would be to significantly extend the law of provocation'. (38) Michael Leonboyer was sentenced to 18 years' imprisonment with a minimum nonparole period of 14 years. (39)
On appeal, the majority (Phillips CJ and Charles JA) held that the trial judge had correctly withdrawn the defence of provocation from the jury. (40) Callaway JA, in dissent, would have allowed the appeal on a separate ground relating to automatism and did not consider the issue of provocation. (41)
On 7 February 1999, Munesh Kumar killed his estranged partner Raj Mani. (42) The two had met in 1996, when they were working as machinists at a manufacturing plant in Queensland. Raj was then aged 33...
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The Ultimate Rule of Law.(Book review), December 01, 2005
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