Current Issues in Criminal Justice

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Criminal law reform and the progressives—the

case of provocation

Andrew Dyer

To cite this article: Andrew Dyer (2023) Criminal law reform and the progressives—the
case of provocation, Current Issues in Criminal Justice, 35:1, 180-195, DOI:
10.1080/10345329.2022.2097369

To link to this article: https://doi.org/10.1080/10345329.2022.2097369

Published online: 22 Jul 2022.

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CURRENT ISSUES IN CRIMINAL JUSTICE
2023, VOL. 35, NO. 1, 180–195
https://doi.org/10.1080/10345329.2022.2097369

RESEARCH ARTICLE

Criminal law reform and the progressives—the case of

provocation
Andrew Dyera,b
a
University of Sydney Law School; bSydney Institute of Criminology, Sydney, Australia

ABSTRACT KEYWORDS
In this article, I consider the Australian criminal law reform abolition of provocation;
campaign to abolish the partial defence of provocation. I argue Australia and England;
that, while abolitionists were motivated by an admirable concern criminal law reform; partial
for equality, their proposal—which has now been adopted in defence of provocation;
penal progressivism.
many Australian jurisdictions—inadequately balanced the
competing autonomy claims of victims on one hand and the
accused on the other. Like the mid-twentieth-century English
higher judiciary, abolitionists’ hostility to the partial defence was
too unqualified—and they placed too little emphasis on the
interests of accused persons. That said, they were right to argue
that liberal provocation law, by being too solicitous of the welfare
of certain accused, had had deeply illiberal effects. If the criminal
law is to be truly progressive, it must do what it can to achieve
fairness for disfavoured minorities—including those accused of
serious offending.

Introduction
In Holmes v Director of Public Prosecutions [1946], the appellant had killed his wife after a
quarrel that, according to him, had culminated in her telling him, ‘[w]ell, if it will ease
your mind, I have been untrue to you’ (p. 589). The House of Lords unanimously held
that the trial judge had been right not to leave the partial defence of provocation with
the jury. ‘[A] confession of adultery without more’, Viscount Simon said, ‘is never
sufficient to reduce … murder to manslaughter’ (p. 600). Indeed, his Lordship continued,
‘extreme and exceptional’ cases aside, all other defendants who had been provoked to kill
by ‘words alone’ must also go to the gallows1 (p. 600). ‘[A]s society advances’, Viscount
Simon concluded, ‘it ought to call for a higher measure of self-control in all cases’
(p. 601).
Certain modern commentators, who I do not think would resent being described as
‘left-wing’ or ‘progressive’, have applauded this final utterance. According to Graeme
Coss (1998a, p. 5), this was an ‘important statement’, evidencing a ‘refreshing awareness’
of the ‘social implications’ of the principles that Viscount Simon was propounding. And,

CONTACT Andrew Dyer andrew.dyer@sydney.edu.au Law School (Camperdown), The University of Sydney,
Sydney
1
In 1946, the sentence for murder in England was, as Viscount Simon noted, ‘fixed and automatic’—death (Holmes v
Director of Public Prosecutions [1946], p. 601). It was only in 1965 that the death penalty was abolished—or, more pre-
cisely, suspended, never (yet) to be reinstated: Murder (Abolition of Death Penalty) Act 1965 (UK) s 1(1).
© 2022 Sydney Institute of Criminology
 CURRENT ISSUES IN CRIMINAL JUSTICE 181

in like vein, Kent Blore (2018, p. 165) has commended his Lordship’s ‘progressivist logic’.
Yet, around the time of the Holmes decision, there were those who doubted very much
how ‘progressive’ Viscount Simon and his judicial colleagues were. For example, after
setting out the above comments about the ‘advance of society’, the authors of the
Report of the British Royal Commission on Capital Punishment (1953, [135]) immedi-
ately qualified them. ‘But the advance of society’, it noted, ‘has also led to an increased
concern for the individual prisoner and to a desire, so far as possible, to take account
of the characteristics and mental reactions of the individual in applying the law’ ([135]).
In this article, I shall consider two competing ideas about when criminal law rules are,
and are not, progressive. The first of these underpins the arguments of commentators
such as Coss and Blore—and is supported by many other academics too (see, eg,
Burgin & Crowe, 2020, pp. 355–356; Crowe & Lee, 2020, pp. 4–5, 24–31; Cossins,
2019, p. 477; Fitz-Gibbon, 2015; Howe, 2002; Larcombe et al., 2016, pp. 623–624,
especially pp. 133–134, 139). Such commentators tend to equate progress with the
achievement of equality for traditionally disfavoured groups. Reverting for a moment
to Holmes, for such commentators their Lordships’ ruling in that case was progressive
because it prevented defendants—usually men—from having their criminal liability
downgraded on the basis that someone—usually, the defendant’s wife, fiancé or girl-
friend—had merely taunted or insulted them (see, eg, Coss, 2005, p. 133). As these com-
mentators argue, surely if the law were to treat perfectly lawful conduct, such as that
attributed to Mrs Holmes, as possibly being sufficient to induce a murderous response
from her husband, it would show contempt for ‘women’s autonomy’ and send a ‘particu-
lar message about the inequality of women’ (Morgan, 1997, p. 273). The second of these
conceptions of progress underpins the Royal Commission’s concerns about the ‘individ-
ual prisoner’ and the need for state authorities, when punishing him or her, precisely to
measure the level of culpability that s/he has exhibited. This is a liberal conception of pro-
gress, which emphasises the right of the accused to be shielded from state power (see, eg,
Garland, 2013, pp. 506–507)—and which can come into conflict with the claims of the
‘equality progressives’ (as I shall call them). As Victoria Nourse (1997, p. 339) has indi-
cated, when trans-Atlantic law reformers made the provocation defence2 more widely
available to defendants than it had been under decisions such as Holmes, they did not
do so in the name of reaction. Rather, theirs was a ‘liberal reform movement’.
My argument here will be that, if the criminal law is to be truly progressive, it must
achieve a careful balance between the claims of these competing groups. Both the equality
and ‘liberal progressives’ (as I shall call the latter) have furnished us with important
insights into when the criminal law really does promote autonomy and fairness. But,
by placing insufficient emphasis on certain values, both have supported criminal law
rules that (would) lead to unfair outcomes.

2
My use of the term ‘defence’ here and elsewhere in this article lacks technical precision because, in many jurisdictions
anyway (cf Criminal Code Act 1899 (Qld) s 304(9)), provocation is not a ‘true defence’ (ie, a matter for the accused to
prove): Peniamina (2021), p. 88 [2]. In NSW, for example, once there is evidence of (extreme) provocation, the Crown
must disprove this matter beyond reasonable doubt: Crimes Act 1900 (NSW) s 23(7). Australian courts have repeatedly
made it clear that, where the ultimate onus lies on the Crown to disprove a ground of exculpation, it is inaccurate to
describe that matter as a defence. See, eg, R v Youssef (1990), pp. 2–4; CTM v The Queen (2008), p. 446 [6]; R v Dziduch
(1990), pp. 380–381. In the last of these authorities, Hunt J noted that ‘it is very unwise ever to refer to the issue of self-
defence as a “defence”, unless it is only to point out that it is not really a defence at all’ (p. 380).
182 A. DYER

In making this argument, I shall discuss the Australian criminal law reform campaign
to abolish the provocation defence (see, eg, Coss, 2004, pp. 135, 137; Fitz-Gibbon, 2012;
Howe, 1994, 1999). This campaign was motivated by an admirable concern for equality,
as well as by a recognition that the liberal progressives’ rules have too often had deeply
illiberal effects. But, like many of their liberal opponents, campaigners did not adequately
balance the competing autonomy claims of the victim on one hand and the accused on
the other. This led them to support an absolute solution that, because of its tendency to
produce harsh results, cannot properly be regarded as progressive.

Provocation and the mid-twentieth-century English judiciary

We can only fully understand the campaign to abolish provocation if we first understand
the gender-biased decisions that gave rise to that campaign. In turn, to gain a proper
understanding of these gender-biased decisions, it helps to know what they were reacting
to. What they were reacting to was reaction—as reflected in the rulings of English judges
of the middle part of the twentieth century. Prominent among these men were figures
such as that ardent supporter of the death penalty, Lord Goddard CJ (Webber, 1972,
pp. 9, 28–30), the ‘haughty’ Lord Simonds (Bingham, 2000, p. 28) and the author of
The Enforcement of Morals (2009), Lord Devlin.3
At common law, a person who kills another person with the requisite mens rea for
murder—relevantly, an intention to kill or inflict grievous bodily harm—will have his
or her liability reduced to manslaughter if the jury is satisfied that it is reasonably possible
that s/he was acting under provocation at the relevant time. But when will a person be
acting under provocation? Justice Gibbs provided a clear answer to this question in
the Australian case of Moffa v The Queen (1977). Provocation, his Honour noted, will
only succeed if the jury is satisfied that it is reasonably possible that: (i) the deceased’s
provocative conduct in fact caused the accused to lose self-control; and (ii) an ordin-
ary/reasonable person ‘so provoked [could] have lost … self-control and acted as the
accused did’ (pp. 612–613).
In a series of ‘restrictive’ (Coss, 1991, p. 588) decisions in the middle decades of the
twentieth century, English appellate judges had sought ‘steadily’ to limit the scope of
the provocation defence and to ‘subject … it to increasingly strict and narrow tests’
(British Royal Commission on Capital Punishment 1953, [134]). There were many
such decisions, but at this stage, I need notice only three to make my point.
The first decision, Holmes, is one that I have already mentioned. In that case, as we
have seen, the House of Lords held that a trial judge should only rarely leave provocation
with a jury in a case where the alleged provocation consisted of ‘mere words’. This aspect
of the decision was supported by the then Lord Chief Justice, Lord Goddard, on the basis
that it corrected ‘the tendency of juries to return unjustified verdicts of manslaughter’
(British Royal Commission on Capital Punishment 1953, [150]). We shall return to
this point. Before we do, however, it is necessary to add that Holmes was restrictive in
one further way. In that case, Viscount Simon prefaced the statement of principle just
noted with the contention that, where an accused person was provoked in such a way
3
Admittedly, as suggested below, it might be a bit unfair to describe Lord Devlin as a ‘reactionary’ as opposed to a
‘conservative’.
 CURRENT ISSUES IN CRIMINAL JUSTICE 183

as to form ‘an actual intention to kill (such as Holmes admitted in the present case), or to
inflict grievous bodily harm, the doctrine that provocation may reduce murder to man-
slaughter seldom applies’ (Holmes [1946], p. 598). If taken at face value, as it subsequently
sometimes was (Perera [1953], p. 2054), this statement would have almost ‘eliminate[d]
provocation as a line of defence’ (Lee Chun-Chuen [1963], p. 227). For, only once the
Crown has proved that the accused had the requisite intent for murder is it possible
for a jury to consider whether, because of provocation, the accused’s liability should
be downgraded to manslaughter.
The second and third decisions concerned the elements of provocation.
We have seen that, at common law, provocation will not succeed unless the jury thinks
it possible that an ‘ordinary/reasonable person’, provoked as the accused was, could have
lost self-control and done what the accused did. In Mancini v Director of Public Prosecu-
tions [1942], Viscount Simon made it clear that the words ‘done what the accused did’
meant not merely that the jury had to be satisfied that the ‘reasonable person’ might
have lost self-control to the extent of forming murderous intent. Rather, his Lordship
held, ‘the mode of resentment must bear a reasonable relationship to the provocation
if the offence is to be reduced to manslaughter’ (p. 9). In other words, the jury had to
be satisfied that it was possible that the accused’s precise response—his or her actual
conduct while provoked—was proportionate to the deceased’s provocative conduct
(Lee Chun-Chuen [1963] pp. 231–232). The difficulty with this is that, when a person
has lost his or her self-control to the point of ‘going berserk’ (Phillips v The Queen
[1969], p. 137), it is arguably unfair to require him or her to ‘behave reasonably’ (Ash-
worth, 1976, p. 303; cf Horder, 1992, pp. 145–155).
The third decision, the House of Lords’ much criticised (see, eg, Ashworth, 1976,
pp. 300–302; Horder, 1999, p. 150) judgment in Bedder v Director of Public Prosecutions
[1954], concerned the operation of the ‘reasonable person’ test. Delivering their Lord-
ships’ reasons, Lord Simonds LC dismissed the appellant’s argument that, when assessing
whether it was possible that the reasonable person could have lost self-control and acted
as the accused did, the jury had to invest the reasonable person with relevant ‘physical
peculiarities’ (p. 1122), or other characteristics, of the accused. ‘For that proposition’,
his Lordship held, ‘I know of no authority: nor can I see any reason for it’ (pp. 1122–
1123). But later courts have not shared Lord Simonds’ perceptions. In Director of
Public Prosecutions v Camplin [1978]—a case in which the House of Lords denied the
continuing authority of not only Bedder but also Mancini and Holmes (pp. 718, 728)—
Lord Simon of Glaisdale pointed out that ‘[t]he effect of an insult will often depend
entirely on a characteristic of the person to whom the insult is directed’ (p. 726). In
other words, if A attacks B and, when doing so, hurls racial abuse at her, we can only
sensibly assess whether an ordinary person in B’s position might have lost self-control
and responded murderously if we first assess how gravely she was provoked. And, to
do that, we must take account of the racial characteristics of B that A’s abuse targeted.
In short, the mid-twentieth-century English judges stated a number of principles that,
if they had been applied more strictly than many juries did apply them (see British Royal

4
In Perera, the Court of Criminal Appeal of Ceylon had understood English law to allow provocation to succeed only where
the accused lacked murderous intent. On appeal, the House of Lords did correct this ‘misunderstanding’ (Perera [1953],
pp. 205–206). Nevertheless, Holmes evidences the English judges’ hostility to the provocation defence—an hostility
that is evident, too, in many of the other decisions considered in this part.
184 A. DYER

Commission on Capital Punishment 1953, [145]), would have caused the provocation
defence almost to fall into disuse. That is, if provocation only rarely applied in cases of
‘words alone’ or where the accused had formed murderous intent, and if the accused’s
murderous conduct had to be proportionate to the provocation, and if the ‘ordinary
person’ were an entirely hypothetical entity, it would only be in the most extreme circum-
stances that the partial defence would succeed. Little wonder, then, that modern com-
mentators who favour the abolition of provocation have been so enthusiastic about
Viscount Simonds’ pronouncements in Holmes (see, eg, Coss, 2006b, p. 68). But, to an
extent, this enthusiasm is misplaced. Indeed, when we see what motivated the English
judges to try to limit provocation to vanishing point, we are put on notice that such
an approach might not be warranted.
When they restricted provocation as they did, the English judges were not actuated by
a desire to improve the position of marginalised groups. Admittedly, in R v McCarthy
[1954], Lord Goddard CJ upheld the appellant’s murder conviction in circumstances
where another man had allegedly provoked him by touching him sexually, before inviting
him to ‘commit sodomy with him’ (p. 106). But, as Coss (1996, p. 305) has noted, this
decision did not result from a concern for gay rights. And, at least twice, Lord
Goddard made it clear that he was no feminist. While supporting Holmes, his Lordship
thought that provocation might properly arise where a husband ‘suddenly strikes and
kills’ a ‘persistently nagging wife’ (British Royal Commission on Capital Punishment
1953, [149]).5 And, in R v Duffy [1949], his Lordship gave his most fulsome praise to a
provocation direction of Devlin J (as he then was) in a case where the appellant had
killed her husband after having allegedly been subject to brutal ill-treatment by him
(p. 132). ‘[U]nforgettable in its measured cruelty’ (Leader-Elliott, 1993, p. 436), the direc-
tion was clearly designed to make it as difficult as possible for the accused’s provocation
defence to succeed. Indeed, Jeremy Horder (1992, p. 70) has argued that Devlin J unwar-
rantably tightened the law of provocation in her case. Until then, Horder argues, an
accused who killed in ‘outrage’ and ‘urgently’, not just one who killed because of a
loss of self-control and ‘immediately’, could hope to rely on provocation (p. 70). For
Lord Goddard, however, Devlin J’s direction ‘might well stand as a classic direction
given to the jury in a case in which the sympathy of everyone would be with the
accused person and against the dead man and it was essential that the judge should
see that the jury had an opportunity of vindicating the law, whatever the consequences
might be’ (R v Duffy [1949], p. 133).
What were the ‘consequences’ to which Lord Goddard adverted? The death penalty of
course; and this brings us to what did motivate the English judges to keep provocation so
narrow. It was not a concern for equality. It was not feminism. It was authoritarianism
that motivated their Lordships. Above, I singled out for special mention three judges—
Lords Goddard, Simonds and Devlin—who, as we have now seen, played major roles in
developing the provocation jurisprudence of the 1940s and 1950s. To differing extents—
and in common with most members of the English higher judiciary at that time6—each

5
In other words, according to his Lordship, this might be one of those ‘extreme and exceptional’ cases where the decea-
sed’s words were of so ‘violently provocative [a] character’ (Holmes [1946], p. 600) as to entitle a jury to find in the
accused’s favour on the provocation issue.
6
And of others: see, eg, Gearty (1994), pp. 32–38.
 CURRENT ISSUES IN CRIMINAL JUSTICE 185

of these men believed that the law exists for ‘the protection of society’ and should not be
excessively concerned with the ‘protection of individuals’ (Devlin, 2009, p. 22).
Lord Goddard thought that society had become too solicitous of the welfare of crim-
inals and insufficiently concerned with the welfare of victims (Webber, p. 29). He was a
‘powerful and dedicated propagandist’ for the retention of corporal and capital punish-
ment (p. 1) and thought that the latter should be imposed on persons as young as 18
(p. 29). Indeed, Lord Goddard is possibly most famous for imposing this penalty on a
19-year-old man, Derek William Bentley,7 after a trial that the England and Wales
Court of Appeal later found to have been seriously defective. ‘In our judgment’, the
Court held, Lord Goddard’s ‘summing-up in this case was such as to deny the appellant
that fair trial which is the birthright of every British citizen’ (Derek William Bentley
(Deceased) [2001], p. 334 [68]). Among other errors, his Lordship had encouraged the
jury to accept police officers’ testimony simply because it was police officers’ testimony
(p. 327 [53]); and, before the jury, he had denounced in strong terms the ‘defendants
and … their defences’ (p. 333 [63]).
Lord Simonds was a defender of the declaratory theory of law—the idea, that is, that
the judges make no law, but merely give effect to parliamentary commands (Bingham,
2000, p. 25). In tension with this view, however, was his judgment in Shaw v Director
of Public Prosecutions [1962]. It is true that, in Shaw, Lord Simonds confirmed that he
was ‘no advocate of the right of the judges to create new criminal offences’ (p. 267).
But no sooner were the words out of his mouth than he declared that there nevertheless
remained ‘in the courts of law a residual power … to supersede the common law, to
superintend those offences which are prejudicial to the public welfare’ (pp. 267–268).
After creating (see, eg, Hall Williams, 1961, pp. 628–629) the common-law offence of
conspiracy to corrupt public morals, and after finding that it was for the jury to deter-
mine in any individual case whether the alleged conduct amounted to such a conspiracy,
Lord Simonds justified such an approach by arguing (p. 268):8
Let it be supposed that at some future, perhaps, early, date homosexual practices between
adult consenting males are no longer a crime. Would it not be an offence if even without
obscenity, such practices were publicly advocated and encouraged by pamphlet and adver-
tisement? Or must we wait until Parliament finds time to deal with such conduct?

Such remarks tend to support the view that, when, in Bedder and Holmes,9 Lord Simonds
limited the provocation defence as he did, it was a particular attitude to state power that
caused him so to act. Lord Simonds’ remarks also bring to mind Lord Devlin’s famous
repudiation of liberalism.
Despite this repudiation, Lord Devlin was in fact more liberal than many of his judicial
contemporaries (McCutcheon, 2002, p. 36).10 Before ‘study destroyed’ his ‘simple faith’

7
Despite the jury’s recommendation of mercy, the Home Secretary did not commute the sentence and Bentley was exe-
cuted on 28 January 1953: Derek William Bentley [2001], p. 309 [1]. Lord Goddard had sent the Home Secretary a note
informing him that, in his Lordship’s opinion, there were no mitigating circumstances in Bentley’s case. This, despite
Bentley’s tender years, his low IQ score and the fact that he did not actually perform the fatal act. See Inner Temple
Library (2017).
8
The same reasoning can be found in the speech of Lord Tucker (Shaw [1962], p. 285), who, like Lord Simonds, was one of
the judges who decided Bedder.
9
Lord Simonds was a member of the Court in Holmes.
10
Note his Lordship’s perhaps less than complete endorsement of Holmes [1946] (Devlin, 1966, pp. 86–87) and Shaw
[1962]: Devlin (2009), pp. 97–100.
186 A. DYER

(Devlin, 2009, p. vii), his Lordship professed himself to have ‘completely approved’ of the
Millian notion that there is ‘a realm of private morality which [is] … not the law’s
business’ (p. vi). Indeed, even after study’s destructive influence had been felt, Lord
Devlin acknowledged that society must tolerate ‘the maximum amount of individual
freedom that is consistent’ with its integrity (p. 17) and that the state could not permis-
sibly criminalise a practice simply because ‘a majority dislike’ it—there instead had to be
a ‘real feeling of reprobation’ (p. 17). Further, he was himself in favour of decriminalising
‘homosexual practices in private between consenting adults’ (p. v). That said, Lord
Devlin’s reasons for the latter will persuade few today: homosexual men, he thought,
were ‘addicts’ whom punishment could neither cure nor deter (p. v). And he held that
society would be entitled to criminalise homosexual acts if ‘the reasonable man’/‘the
man in the jury box’ (pp. 15, 90) were to come to regard homosexuality as ‘a vice so
abominable that its mere presence is an offence’ (p. 17). In sum, whatever the merits
of his theory of criminalisation,11 Lord Devlin’s views about homosexuality, like his
approach in Duffy, evidence a less than complete concern to shield marginalised
groups from the power of the state.

The liberal over-reaction to reaction

The British Royal Commission on Capital Punishment published its report in 1953. As
suggested in the introduction to this article, it was not altogether enamoured of the
English higher judiciary’s approach to the provocation defence. A purely hypothetical
‘reasonable person’ test, it thought, was ‘too harsh’ and did not take sufficient account
of ‘factors personal to the prisoner’ (British Royal Commission on Capital Punishment
1953, [145]). And the Royal Commission was also critical of the ‘mere words’ principle
from Holmes. When it came to the provocation defence, the Commission stated, ‘the
nature (as distinct from the degree) of the provocation should be immaterial and it
should be open to [the jury] … to return a verdict of manslaughter’ ([151]). Juries, it con-
cluded, ‘can be trusted to arrive at … just and reasonable decision[s]’ ([151]).
As also suggested in the introduction to this article, the Royal Commission was evi-
dently motivated by a liberal concern for the rights of the accused (see British Royal
Commission on Capital Punishment 1953, [135]). But it over-reached in one crucial
respect. However illiberal was the sentiment that caused their Lordships to lay down
the ‘mere words’ principle, that principle—unlike the Bedder and (in my view)
Mancini rules—was in fact normatively desirable.12 As much was shown once the Com-
mission’s preferred approach was actually put into effect.
Four years after the publication of the Royal Commission’s Report, the Homicide Act
1957 (5 & 6 Eliz. 2 c 11) came into force. As Lord Diplock observed in Camplin [1978], s 3
of that Act was ‘intended to mitigate in some degree the harshness of the common law of
provocation’ (p. 716). It did this by making it clear that, when there was any evidence of
11
Although liberals have trenchantly criticised Lord Devlin’s views about when the state may permissibly criminalise
activity (see, eg, Ronald Dworkin, 1977, chapter 10; Feinberg, 1990, pp. 133–155; Hart, 1962), his views have also
attracted much support—especially in recent decades, including from certain liberals: see, eg, Gerald Dworkin
(1999); McCutcheon (2002); Cane (2006); Allan (2017).
12
Note that, in R v Buttigieg (1993), p. 37, the Queensland Court of Appeal attempted to revive the Holmes rule in that
jurisdiction—though with limited success: Queensland Law Reform Commission (2008), p. 477 [21.65]–[21.66].
 CURRENT ISSUES IN CRIMINAL JUSTICE 187

provocation in murder proceedings, the trial judge was obliged to leave that defence with
the jury—even if the deceased’s alleged conduct comprised ‘words unaccompanied by
violence’ (p. 716). And, as indicated above, in Camplin, the House of Lords unanimously
added that, contrary to the Bedder approach, s 3’s ‘reasonable man’ test was one that took
account of the personal features of the accused where this was necessary if jurors were
accurately to measure the gravity of the deceased’s provocative conduct. Similar develop-
ments occurred in North America (Nourse, 1997, pp. 1339–1341); and, in Australia, the
common law followed suit. In Moffa (1977), Mason J held that there was ‘no absolute rule
against words founding a case of provocation’ and that any such rule ‘would draw an
arbitrary distinction between words and conduct which is insupportable in logic’
(p. 620). In Dutton (1979), which was a case of ‘words alone’, the Full Court of the
Supreme Court of South Australia found that it was open to a reasonable jury to find
in the appellant’s favour on provocation13—and that the trial judge had erroneously
failed to tell the jury that ‘the ordinary man must be taken to possess those characteristics
of the accused’ that gave the deceased’s alleged words their ‘sting’ (pp. 358, 377).14
It takes only a brief perusal of the evidence in Dutton (1979) to see the problem with
this. In that case, the appellant had killed his wife, from whom he was separated, after a
verbal exchange during which she allegedly ‘taunted him with his inability to satisfy her
sexually, and refused to return to him’ (p. 374). In those circumstances—in circum-
stances, that is, where a possessive man claimed to have killed a woman because of
conduct that, however hurtful, was perfectly lawful, could a jury really reasonably find
it possible that an ordinary person could have done the same? Or would such a
finding involve ‘normative incoherence’ (Nourse, 1997, p. 1395)—how could the law
regard conduct as both so innocuous as to be lawful and so provocative as partially to
excuse a highly unlawful response? (Nourse, 1997, pp. 1337–1338, 1380)—and the con-
nivance at misogyny (see, eg, Coss, 2006b, especially pp. 53–6)? Contrary to the British
Royal Commission’s views, it was not as though juries could always be trusted to convict
the accused of murder in such cases. The Victorian case of R v Ramage (2004) and the
Queensland case of R v Sebo; Ex Parte Attorney-General (Qld) (2007) are just two of
many cases where juries reduced the accused’s liability to manslaughter due to his alleg-
edly having been provoked by an intimate partner’s taunts.
Nourse (1997) has argued that feminists ‘tend to believe that liberals neither understand
nor appreciate women’s “experience”’ (p. 384). Certainly, feminists considered liberal pro-
vocation law to have responded unsatisfactorily to the circumstances in which women tend
to be killed by—as well as those in which they themselves kill (see, eg, Tarrant, 1990)—male
partners. They were right to do so. They were right to contend that, by overvaluing the
autonomy interest of certain accused persons, and by undervaluing that of other actors,
the liberals had fashioned rules that were not at all liberal in their effect. On one hand,
as just indicated, male defendants were being acquitted of murder in circumstances

13
Note the Victorian Court of Criminal Appeal’s like decision in R v Gardner (1989)—a case rightly described by Coss
(1996), p. 307 as ‘one of the most disturbing and problematic decisions in our law reports’.
14
In NSW, the Crimes (Homicide) Amendment Act 1982 (NSW) effected similar changes to the law of provocation. As a
result of this Act, s 23 of the Crimes Act 1900 (NSW), which continues to define the partial defence, stated that: (i)
‘grossly insulting words or gestures’ could constitute sufficient provocation (s 23(2)(a); cf Holmes [1946]); and that
(ii) there was no need for the conduct causing death to have been proportionate to the deceased’s provocative
conduct (s 23(3)(a); cf Mancini [1942]). The Act also created an ordinary person test that operated as the Camplin
[1978] one did: s 23(2)(b); Green v The Queen (1997), pp. 340, 355–356, 368–369, 381–382, 409–412; cf Bedder [1954].
188 A. DYER

where the deceased woman had been lawfully ‘exercis[ing] … her personal autonomy’
(NSW, Parliamentary Debates 2014, p. 28502). On the other, female defendants who
had allegedly been provoked by inestimably more objectionable ‘exercises of autonomy’
by violent male partners were finding it difficult to rely on a defence that had been formu-
lated without them in mind. The latter point is exemplified by the law’s approach to imme-
diacy of response. It is true that, unlike under Duffy (1949), it was no longer necessary for
the accused’s loss of self-control to have followed immediately upon the deceased’s provo-
cative conduct (see, eg, R v Chhay 1994). Nevertheless, the more immediate the response
was, the easier it often was for the accused to persuade a jury that s/he had possibly lost her
or his self-control (R v Chhay 1994, p. 13). Of course, it is well-established that women who
kill violent men often do not do so immediately after the conduct to which they were
responding (Tarrant, 1990, p. 593).

The equality progressives’ over-reaction to the liberal progressives’ over-

reaction to reaction
The response of many—though certainly not all (see, eg, Tolmie, 2005)—feminist commen-
tators was to advocate the abolition of provocation. Men who killed women who had merely
left and verbally insulted them, it was said, should be convicted of murder (see, eg, Coss,
2005, p. 134). And so too should other people—usually men—who had inflicted deadly vio-
lence outside the domestic context—usually against other men (see, eg, Coss, 2004, p. 135;
Howe, 1997, p. 365). As for battered persons who killed their abusers: abolitionists claimed
that, because such persons generally kill to protect themselves or others, and not because
they have lost their self-control, the appropriate plea for them was self-defence (Coss,
1998b, pp. 120–121; Howe, 2002, p. 43)—or, failing that, excessive self-defence (Coss,
2004, p. 138). Reforms should be made to the law of self-defence, it was said, to maximise
such defendants’ chances of succeeding on this basis (Coss, 2006a, p. 148).
By 2008 arguments of this sort had persuaded two Australian Law Reform Commissions
to recommend the abolition of provocation (Victorian Law Reform Commission, 2004,
chapter 2; Law Reform Commission of Western Australia 2007, 202–222); and a third
had only refrained from recommending the same because of the mandatory life penalty
for murder in that jurisdiction (Queensland Law Reform Commission, 2008, p. 474
[21.49]). Three state governments had abolished provocation (Criminal Code Amendment
(Abolition of Defence of Provocation) Act 2003 (Tas) s 4; Crimes Act 1958 (Vic) s 3B; Crim-
inal Law Amendment (Homicide) Act 2008 (WA) s 12); and a fourth had tightened the
partial defence significantly (see Criminal Code Act 1899 (Qld), s 304). In these circum-
stances, it was perhaps somewhat surprising that when, in 2014, the NSW government
came to consider the matter, it decided to modify the partial defence rather than to
abolish it. Surprising or not, that government was right to take such a course.
Unlike the mid-twentieth-century English judges, feminists who challenged the pro-
vocation defence were motivated by a desire to improve the position of traditionally mar-
ginalised groups.15 But, in two ways, their approach was similar to that of their English
15
Such commentators were concerned not only to defend the interests of women, but also of gay men. In certain
decisions, of which Green (1997) was said to be the leading example (cf Dyer, 2022), these commentators argued
that the Courts had wrongly accepted that a jury could reasonably find it possible that a ‘non-violent homosexual
 CURRENT ISSUES IN CRIMINAL JUSTICE 189

predecessors. First, we have seen above that Lord Goddard’s support for Holmes was
based on a concern that juries were apt too readily to mitigate the liability of a murder
defendant who claimed to have been provoked. As four justices of the High Court of Aus-
tralia noted in Lindsay v The Queen (2015), after referring to Holmes, a ‘similar distrust
for the jury’ informed ‘some of the more recent criticism of the partial defence of provo-
cation as lending itself to verdicts that reflect gender or heterosexist bias’ (p. 282 [22]).
Secondly, feminist commentators, like the English judges, were excessively dismissive
of the rights of the accused. No doubt, ‘criminal lawyers and spokesmen for criminal
bar associations’—the liberal progressives—had placed undue faith in juries and undue
emphasis on ‘the rights of their provoked clients’ (Howe, 2002, p. 54). But the absolute
solution of abolition could only have been justified if, as Howe (1997, p. 365) thought, all
those who inflict murderous violence on another person due to provocation ‘deserve …
to be convicted of murder’. In fact, as Thomas Crofts and Loughnan (2013, pp. 32–33)
have argued, there are a substantial number of provoked killers who display insufficient
culpability to warrant being convicted of this uniquely stigmatic offence16 (see too, eg,
Norrie, 2001, pp. 343–344).
The first and most obvious such killer is the battered person who kills her or his abuser
(Crofts & Tyson, 2013, p. 872). While such a person will usually ‘in substance’ have been
acting in (excessive) self-defence (Tolmie, 1991, p. 64), there is ‘[n]o doubt’ (Tarrant,
1990, p. 591) that sometimes provocation is the right defence for her or him. On one
view of the facts in Van Den Hoek v The Queen (1986), for instance, the accused killed
her husband, not to defend herself against him, but because of a loss of self-control
that had been triggered by his violent conduct (pp. 159–161).
That said, it is not only defendants such as these whose culpability is significantly
reduced by virtue of provocation. Take, for example, R v Butler [2012], where the
accused, a sex worker who had been sexually abused as a child by her stepfather, lost
self-control and killed a client who had allegedly shown her explicit images of a child
engaging in sexual activity and then had allegedly made (fantastic) remarks about
having sexually abused her and her sister when they were children. Or R v Cust [2021]
and R v Mitchell [2008], where the accused claimed to have woken up to find the deceased
raping (Mitchell) or attempting to rape (Cust) him. Or R v Camplin [1978], where the
appellant said that he had killed the deceased after the deceased had raped him and
then laughed ‘over his sexual triumph’ (p. 257). Or R v Curzon (2000), where the appel-
lant claimed that she killed the deceased after he had repeatedly, and despite her verbal
resistance, importuned her with requests to have sexual intercourse with him. Or R v
Davis [2021], where, on one view of the facts ([49]), the accused had lost self-control
and killed the deceased after ‘an horrific home invasion’ ([52]). Or Pollock v The
Queen (2010) and Johnson v The Queen (1976), where the appellants had killed allegedly
tyrannical fathers who had again allegedly behaved in a violent and threatening manner
towards them just before the killing. Or R v Gilham (1994), where the Crown could not

advance’ could cause an ordinary person to lose self-control so far as to form an intent to kill or inflict grievous bodily
harm. See, eg, Howe (1998).
16
Some have contended that the provocation defence is ‘anachronistic in the law of murder since the abolition of capital
punishment’: R v Kumar (2002), p. 231 [176]. In other words, according to this argument the reduced culpability of some
provoked killers can properly be reflected at sentencing: see, eg, Fitz-Gibbon (2017). This argument takes insufficient
account of the fact that the label ‘murderer’ should not be applied to these less culpable actors: see, eg, Tolmie (2005),
pp. 28–30; Crofts and Loughnan (2013), pp. 27–29; Crofts and Tyson (2013), pp. 873–874.
190 A. DYER

disprove the accused’s claim that he lost self-control and killed his brother, Christopher,
after finding Christopher setting fire to the bodies of their parents, whom he had just
murdered.17
The South Australian Law Reform Institute (2018, p. 56 [9.1.5]) has stated that it is
difficult to reformulate the provocation defence so as to provide mitigation to defendants
such as these, while also preventing unmeritorious accused persons from successfully
raising provocation. It has concluded that, as with defensive homicide in Victoria, it is
better that provocation be abolished than that it be ‘misuse[d]’ by underserving defen-
dants (p. 56 [9.1.5]). But this is to look at the matter the wrong way around. While
defences should be defined in such a way as to minimise the possibility of ‘misuse’, in
a liberal democracy they should not be taken from deserving accused simply because
of fears that, otherwise, some undeserving defendants will gain mitigation (Dressler,
2002, p. 962). Indeed, many commentators have criticised the abolition of defensive
homicide essentially on the basis that, by so acting, the Victorian government
removed an important protection for certain clearly less culpable accused to prevent
any other accused from gaining an unwarranted benefit (see, eg, Crofts & Tyson,
2013, pp. 887–888; King et al., 2016; Wake, 2015, pp. 162–165).
If we return to the feminist argument against provocation, such commentators’ dis-
trust of juries (see, eg, Coss, 2006b, p. 56) was clearly soundly based. But, by proposing
abolition, rather than modification, these commentators, like the liberal progressives
before them, pursued a noble value in too unqualified a manner. The liberals had
attached too much weight to the autonomy interest of the accused, and had been insuffi-
ciently concerned with the autonomy of those whom the accused had victimised. The
equality progressives, on the other hand, had been excessively concerned with the
rights of the victim and had paid insufficient attention to the importance of constraining
‘state punishment in the name of limited government and the rights of individuals’
(Garland, 2013, p. 507).
Of course, reasonable minds might differ over precisely how the partial defence should
be modified. But it seems clear that it can be reformed in such a way as to prevent judges
from leaving provocation with the jury in cases such as Dutton (1979), while allowing
juries to consider provocation in cases such as Butler [2012]. For my own part, though
it is not beyond criticism (see, eg, Crofts & Loughnan, 2014, pp. 118–124; Douglas &
Reed, 2021, p. 316; cf Nourse, 1997), the current NSW model achieves an appropriate
balance between the interests of victims and those of the accused. It does this by provid-
ing that an accused will not be able to rely on the partial defence—which has been
renamed ‘extreme provocation’—unless, when s/he performed the fatal conduct, s/he

17
As one of the anonymous referees has suggested, in the absence of provocation some of the accused persons men-
tioned in these last two paragraphs might have succeeded on the basis of excessive self-defence (assuming that
that partial defence were available in the relevant jurisdiction). Indeed, in R v Davis (2021), although her Honour
regarded the ‘evidence at trial’ as fitting ‘more easily with a case of extreme provocation than one of excessive self-
defence’ ([49]), she sentenced him on the latter basis ([50]). But there was no evidence of excessive self-defence in
cases such as R v Cust [2021] or R v Butler [2012], for instance; and, even where it is open to the jury to acquit an
accused of murder on this basis, it might nevertheless take a view of the facts that is inconsistent with that partial
defence but consistent with provocation. For example, in Van Den Hoek v The Queen (1986), there was evidence
from an independent witness that he had seen the appellant attacking the deceased with a brick and a knife as he
crouched near the road (p. 159), and that she was ‘under extreme anxiety or upset’ (p. 160). It seems that, if a jury
were to accept that evidence, it could quite rationally dismiss excessive self-defence while accepting provocation.
Cf, however, Tarrant (1990), pp. 595–596.
 CURRENT ISSUES IN CRIMINAL JUSTICE 191

might have been responding to ‘conduct of the deceased’ that was a ‘serious indictable
offence’ (Crimes Act 1900 (NSW), s 23(2)(b)). Under such an approach, provocation is
taken away from violent men who respond to lawful conduct from their wives and girl-
friends. But it is not taken away from those, like Butler, Camplin, Cust et al, whose fatal
conduct, though deeply wrong, was also a partly understandable response to the decea-
sed’s flagrant unlawfulness.18 And, in my view, partly because of the breadth of the actus
reus of the ‘serious indictable offence’ of stalking or intimidating a person with the inten-
tion to cause him or her to fear physical or mental harm, the defence will seldom be
taken away from a battered person who claims to have lost her or his self-control and
killed her or his abuser (see Crimes (Domestic and Personal Violence Act 2007 (NSW)
ss 7, 8 and 13(1)).19

Conclusion
In 1991, Graeme Coss (1991, p. 570) argued that ‘the great modern [provocation] cases—
Mancini, Holmes and Bedder’ produced ‘harshness’ and stifled progress. But he soon
came to reconsider this view. ‘In time’, Coss (2004, p. 135) explained, ‘I saw the
defence as an abomination, protecting violent males and hindering battered women’.
The liberal reaction to Mancini, Holmes and Bedder was not progressive at all, in other
words.
In this article, I have argued that there is something to be said for both of these views.
Liberal progressives were right to oppose the ‘unnecessarily restrictive’ (Coss, 1991,
p. 570) provocation decisions of the mid-twentieth century. These decisions were the
work of men with authoritarian instincts, who placed undue emphasis on the interests
of victims and not enough emphasis on the rights of the accused. But the liberal reforma-
tion went too far. To allow that a woman had ‘provoked her own demise’ (see Howe,
1998, p. 466) by doing only that which she was lawfully entitled to do, was, as Jenny
Morgan (1997, p. 273) suggested, to attach excessive weight to one group’s autonomy
interest and insufficient weight to another’s. That said, when the equality progressives
proposed the abolition of the provocation defence, they made the same mistake as did
the English judges before them (though for different reasons). They pursued victims’
interests too doggedly and, like their liberal opponents, favoured a policy that would
produce harshness and unfairness (though for accused persons not victims).
In short, the criminal law is progressive when it is truly liberal. It is not truly liberal
when it displays a casual disregard for the autonomy of victims. But neither is it truly
liberal when it fails sufficiently to protect accused persons from the power of the state.
Those liberal commentators who campaign for the rights of the accused should
always, but sometimes do not,20 remember that they are fighting against, not for, reaction
18
When the deceased in Butler [2012] allegedly showed her an image of a person who appeared to be a child engaging in
sexual activity, he allegedly committed the ‘serious indictable offence’ (see Crimes Act 1900 (NSW) s 4) of disseminating
child abuse material: see Crimes Act 1900 (NSW) s 91H(2)—and note the definition of ‘disseminate’ in s 91H(1). Cf Fitz-
Gibbon (2017), 786.
19
Note, too, that the NSW government will soon be creating a ‘serious indictable’ coercive control offence: Taylor et al.
(2021).
20
A recent example of this is the NSW Bar Association’s opposition to a provision that would require a jury, in a non-con-
sensual sexual offence case, to have regard to what the accused said or did to ascertain whether the complainant was
consenting, when determining whether he or she had the requisite mens rea. See NSW Law Reform Commission 2020,
p. 146 [7.157]. In a case where the complainant has not resisted the accused, it seems only fair for a judge to suggest to
192 A. DYER

(see Howe, 1999, p. 127). But the same is true of commentators who campaign for the
rights of disfavoured minorities. They should always remember, though sometimes do
not,21 that—contrary to what a conservative law lord has recently said (R (Chester) v Sec-
retary of State for Justice [2014], p. 327 [112])—prisoners are one such disfavoured
minority.

Disclosure statement
No potential conflict of interest was reported by the author(s).

References
Parliamentary Debates
NSW, Parliamentary Debates, Legislative Assembly, 8 May 2014, 28502 (Mr Brad Hazzard,
Attorney General).

Statutes
Crimes Act 1900 (NSW).
Crimes Act 1958 (Vic).
Crimes (Domestic and Personal Violence) Act 2007 (NSW).
Crimes (Homicide) Amendment Act 1982 (NSW).
Criminal Code Act 1899 (Qld).
Criminal Code Amendment (Abolition of Defence of Provocation) Act 2003 (Tas).
Criminal Law Amendment (Homicide) Act 2008 (WA).
Homicide Act 1957 (5 & 6 Eliz. 2 c 11).
Murder (Abolition of Death Penalty) Act 1965 (UK).

Cases
Attorney-General for Ceylon v Perera [1953] AC 200.
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Mancini v Director of Public Prosecutions [1942] AC 1.
Moffa v The Queen (1977) 138 CLR 601.
Peniamina v The Queen (2021) 95 ALJR 85.
Phillips v The Queen [1969] 2 AC 130.

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count against him or her when the jury resolved the mens rea question.
21
A recent example is an academic proposal that rape and like offences be made crimes of absolute liability. See, eg,
Crowe and Lee (2020), pp. 4, 24–27. It is true that, as Cossins (2019, p. 477) has suggested, if the law grants an acquittal
to a person who might reasonably, but mistakenly, have believed that his or her sexual partner was consenting, it gives
less than total protection to the sexual autonomy of complainants. But the accused’s autonomy interest is also
engaged: Ashworth (2010), pp. 5–7. If a person is convicted of a very serious offence, despite being blameless in
respect of the harm that s/he has caused, we are punishing the morally innocent—and no state that claims to be
liberal can properly do that.
 CURRENT ISSUES IN CRIMINAL JUSTICE 193

Pollock v The Queen (2010) 242 CLR 233.

R v Buttigieg (1993) 69 A Crim R 21.
R v Camplin [1978] 1 QB 254.
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R v Cust [2021] NSWSC 1515.
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R v Gilham (1994, Unreported, Supreme Court of NSW, 7 April 1995 (Abadee J)).
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R v McCarthy [1954] 2 QB 105.
R v Mitchell [2008] NSWSC 320.
R v Ramage [2004] VSC 508.
R v Sebo; Ex Parte Attorney-General (Qld) (2007) 179 A Crim R 24.
R v Youssef (1990) 50 A Crim R 1.
R (Chester) v Secretary of State for Justice [2014] 1 AC 271.
Shaw v Director of Public Prosecutions [1962] AC 220.
Van Den Hoek v The Queen (1986) 161 CLR 158.

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British Royal Commission on Capital Punishment 1949–1953 Cmnd 8932. (1953). Report.
Law Reform Commission of Western Australia. (2007). Review of the Law of Homicide. Final
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Queensland Law Reform Commission. (2008). A Review of the Excuse of Accident and the Defence
of Provocation. Report No 64.
South Australian Law Reform Institute. (2018). The Provoking Operation of Provocation: Stage 2.
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Victorian Law Reform Commission. (2004). Defences to homicide. Final Report.

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