Provocation - available to charge of murder s 302(1) 1. trigger (provocative conduct) o "sudden provocation" by victim which caused accused to kill · The provocative conduct must be seen in context and not in isolation - it is the cumulative effect that is important: "including the background and history leading up to the vent that caused the accused to lose self-control" (Chhay v The Queen (1994)) o Words? · 'violently provocative' words of/in 'exception circumstances' suffice (Moffa v The Queen (1977)) " Only in 'circumstances of an exception character': s 304(2) o Wrongfulness of provocative conduct · Provocative conduct should be 'wrongful' but does not have to be 'unlawful': R v R (1981), s245 Criminal Code (WA) · Wrongfulness is determined by the standard of ordinary persons o Provocation 'by' victim (R v Davies) · Suffices if provocation is offered by someone closely connected to the victim (e.g. member of a group) : R v R 'misdirected retaliation': it suffices if the accused wrongly believes the victim offered the provocation (killed the wrong person): R v Kenny [1983] o Provocation must not be self-induced · Exceptions have been made if the victim's response to self-induced provocation was completely unforeseeable: R v Voukelatos [1990] o Direct · Generally, must be directed at the accused · Exceptions: accused is acting in defence of accused R v Harrington o Presence of the accused · Must take place within the sight or hearing (the presence) of the accused: R v Fricker (1986) · 'Hearsay provocation' does not suffice: R v Arden 2. subjective element o reaction of the accused: the "heat of passion" in which accused loses control " generally loss of self-control will be caused by feeling of anger, apprehension, fear, hatred, panic, revenge, resentment: van de Hoek v The Queen " all personal characteristics of the accused, any relationships with victim, any attribute that contributes to the loss of self-control is relevant: Stingel v The Queen o loss of self-control because of provocation and not premeditated " s 304: "in the heat of passion" and before there is time for the person to cool · Masciantonio v The Queen: "[P]rovocaiton must actually cause the accused to lose self-control and the accused must act whilst deprived of self-control before he had the opportunity to regain his composure" o Loss of self-control was "sudden" cf s 304 " The accused acts on an impulse and there was no time to cool down, to regain an emotional equilibrium [contested]
· Intention to kill that was premeditated or caused by other factors than provocation (e.g. intoxication) does not suffice 3. objective element o HC: an ordinary person, provoked with the same gravity, could or might have lost control and formed an intention to kill " defence is not available "to persons who lose self-control because of unusual temperament or excitability or because of self-induced states such as intoxication a) Determining the gravity of the provocation (in reference to personal attributes) · Characteristics of the accused,