When should provocation be accepted as legitimate self-defence in a murder trial?

ON July 3, 2001, Scott Tindall sat in a chair in an Adamstown flat for 10 or 15 minutes, smoked a cigarette, decided “I just couldn’t take any more” and raised a hammer above his older brother Donald’s head, striking his skull up to 11 times.
It was five months after Donald was acquitted of murdering their father Alex in an Adamstown house fire in 2000, a murder trial in which Scott – the youngest of Alex Tindall’s nine children – was a key witness against Donald.
It had been five months of hell, Supreme Court Justice Peter Hidden concluded when sentencing Scott Tindall in this “truly exceptional case”.
“[Scott] had been hounded by [Donald] for no known reason other than that he had given evidence for the prosecution at a trial arising out of a violent death of their own father,” Justice Hidden found.”The circumstances elicit considerable sympathy for [Scott] and provide him with a powerful claim for leniency.”
Scott Tindall, 35, told the court he was provoked into killing his brother.
Donald, the sixth of the Tindall siblings, had threatened to kill Scott many times, had threatened Scott’s partner and her young child, and had “terrorised” other family members.
On July 2, 2001, Donald Tindall arrived unexpectedly at Scott’s partner’s flat demanding money. He had been drinking, made threats, and repeatedly called Scott a “f – – – ing idiot” and a “f – – – ing dog” despite the presence of a child and Scott’s appeals for the abuse to end.
Scott was “petrified”.

As he told a police officer who had charged Donald for his father Alex’s murder only a year earlier: “You know what he was like. I just couldn’t take any more.”
Justice Hidden concluded that “the provocation under which [Scott] was acting at the time of the killing was grave indeed”.
He sentenced Scott to a minimum 2½ years jail.
This week Scott’s brother Paul who, along with another brother Allan, were the first people contacted by Scott after the killing, said he didn’t think Scott should have served any jail time, given the circumstances leading to Donald’s death.
“Scott didn’t deserve to go through what he went through,” said Paul Tindall, of Nelson Bay. “I don’t reckon he should have got anything, but that’s the system.”
While Scott, released from jail in 2004 and still living in the Hunter, was “going well”, the events of those tragic two years had devastated and split the family.
“There are some family members who won’t accept what Scott did. He’s suffered. I’ve suffered. My family’s suffered. Everyone’s suffered.”
Paul Tindall was aware the NSW Parliament had launched an inquiry into the partial defence of provocation after widespread criticism following cases in which men successfully argued they were provoked into killing their estranged wives, or their wives’ new partners or lovers.
But he believes the provocation defence produced the right outcome in his brother’s case.
“There was no doubt. It was either Scott done what he done, or we were going to find him dead.”ON June 14 the NSW Legislative Council voted to hold the Defences and partial defences to homicide inquiry after public outcry over a manslaughter verdict in a Sydney case.
In early June a jury accepted Chamanjot Singh’s claim that he was provoked into slitting his wife Manpreet Kaur’s throat with a box cutter and stabbing her in what a judge described as a “ferocious attack”.
The stabbing occurred after Kaur told Singh she loved another man.
Singh was sentenced to six years jail.
There was further outrage early this month when a jury found Joachim Won not guilty of murder on the grounds of provocation, but guilty of manslaughter, after stabbing his friend Hyung Mo Lee to death after finding Lee in bed with Won’s wife.
Greens Upper House MP and lawyer David Shoebridge supported an inquiry into the defences of self defence and provocation, telling Parliament that both “have been used by people who were clearly guilty”.
He was concerned about its use where women had been killed after years of abuse by violent partners, and by men using the “gay panic” defence after non-violent approaches from homosexual men.

The inquiry committee chairman, Fred Nile, said it would look at “the use of provocation to reduce a charge of murder to the lesser charge of manslaughter, and in particular, its use in matters where there is a history of domestic violence”.
It will accept submissions until August 10.
A briefing paper on the Legislative Council’s website notes that the defence of provocation in murder cases rose in the 1600s and 1700s, when social norms dictated that “breaches of honour” justified an angry retaliatory response.
In those times it was considered “necessary for a man to ‘cancel out’ the affront by retaliating in some way”, and failure to do so “would be considered cowardly”, a 2004 Victorian Law Reform Commission into defences to murder noted.
By 1883 NSW broadened the use of provocation to forms of conduct beyond a physical assault or committing adultery with a man’s wife, to include “grossly insulting language or gestures”.
In 1982 the provocation defence in NSW was expanded after reports found women who killed their partners after prolonged domestic violence were disadvantaged because the defence required an element of “suddenness” in responding to provocation.
In 2003 Tasmania abolished provocation as a defence, followed by Victoria in 2005 and Western Australia in 2008.
Remaining states and territories retain some form of provocation defence.
Victoria revoked provocation after community outrage following two cases. In October 1996 a jury found Heather Osland guilty of murdering her husband after rejecting that she was acting in self defence and had been provoked by years of domestic violence. She was sentenced to 14 years jail. A jury found her son David, who struck the fatal blow, not guilty of murder and he was released.
In 2004 a jury found James Ramage not guilty of murder, but guilty of manslaughter, after accepting he killed his wife Julie when she said she would leave him. He was sentenced to eight years jail.

The cases led to sustained criticism that the defence of provocation was gender-biased and used by men to escape murder convictions.
The Victorian Law Reform Commission in 2004 recommended the removal of provocation, saying that “in the 21st century, the Victorian community has a right to expect people will control their behaviour, even when angry or emotionally upset – particularly when the consequences are as serious as homicide”.
Although the Victorian government abolished provocation as a defence in 2005, and replaced it with the charge of defensive homicide, it announced in June that it would be amending the law after research last year found the new law “has operated in ways seemingly different to those envisioned by the government”.
While defensive homicide had been established primarily for people who kill in response to prolonged family violence, researchers found it had overwhelmingly been used by male offenders involved in “one-off, violent confrontations between two males of approximately equal strength”.
A Catholic priest is petitioning the Queensland government to abolish provocation as a defence after two men were found not guilty of murder, but guilty of manslaughter, for punching and kicking a gay man to death in the grounds of a Catholic church.
The two men said they had been provoked into killing the gay man because he made an unwanted sexual advance.

Manny Conditsis is a senior trial advocate and accredited criminal law specialist who is not surprised when some court outcomes are controversial, or when governments like Victoria find changing laws can produce unintended consequences.
“When you go tweaking laws, you’re going to have all sorts of other problems,” he said.
The significance of provocation was that manslaughter convictions can produce a wide range of sentencing outcomes, from no jail time to 25 years jail, when compared with murder convictions which carry significant jail sentences.
But Conditsis, who successfully defended former Australian boxing champion Dean Waters after he was charged with murdering Allen Hall in 1988, believes the community needs to consider another question before it decides whether to abolish the provocation defence.
Waters argued diminished responsibility after years of control by his boxing trainer father Cec Waters.
“In today’s society, can we accept that a person can be so provoked, firstly, to lose control, and secondly, to take some sort of extreme physical action to cause someone’s

“In today’s society, can we accept that a person can be so provoked, firstly, to lose control, and secondly, to take some sort of extreme physical action to cause someone’s death?” Senior trial advocate Manny Conditsis

death?” Conditsis said. “As a society, isn’t that what we’re asking ourselves, or do we say there are no circumstances?”
Conditsis said the case of Scott Tindall showed that provocation could produce an outcome that the community would largely accept. He agreed that controversies often followed the application of laws in areas where the community had mixed responses to issues. Provocation’s use in domestic violence and homosexual cases produced mixed jury outcomes because of widely differing community views in both areas.

In May 2006 the NSW Court of Criminal Appeal considered an appeal by Noelene Anderson, whose case that she had been provoked into killing her husband Bob Grosse at Rocky Point on the Central Coast was rejected by a Newcastle Supreme Court jury which found her guilty of murder.
Their relationship was described as turbulent. Grosse was convicted of assaulting Anderson, and during one of their physical altercations Anderson bit Grosse’s ear.
A jury accepted the Crown case that Anderson murdered Grosse by strangling him with a piece of cord or twine after picking him up from work when he complained of being unwell. Anderson buried him underneath their house and placed a concrete slab over his makeshift grave.
The jury was told Grosse was murdered several days before Anderson met up with a South Australian man she had planned to live with.
The Court of Criminal Appeal noted a first murder trial failed because the jury was given incorrect directions on provocation. It rejected Anderson’s appeal against a second murder conviction, noting there was significant evidence Anderson was not provoked by Grosse on the day he died.
The jury did not accept her evidence because she concealed Grosse’s body for several years and told the police she did not know where he was, the court found.
Although there was evidence of assault and violence in the relationship, and sexual behaviour Anderson found “unpleasant or distasteful”, the jury was satisfied Grosse had died in the manner put forward by the Crown and Anderson was not provoked into killing him, the appeal court found.

WHEN Scott Tindall was asked if he had intended to kill his brother Donald on July 3, 2001, he answered: “I’m not going to tell you a lie.”
“I got up and hit Donny on the head with the hammer. I think I hit him, I think I hit him three or four times on the head with the, with the hammer,” he told police.
“At that point I knew what I’d done. Just for, I just, I just couldn’t take any more. The man had just put, put meself, my fiancée and the rest of my family through, to hell and back, and there was, there was nothing else.”
Paul Tindall won’t be making a submission to the parliamentary inquiry.
After two deaths and his brother’s jailing, and with his family split apart, the wounds are too raw, and his view is too subjective.
“There were a lot of things building up to it [Donald’s death], and that much I know,” he said.

What the Law says about Provocation

SECTION 23 of the NSW Crimes Act provides for the partial defence of provocation to murder which, if established, can reduce murder to manslaughter.
Provocation is established where a killing is the result of a loss of self control by a person that was induced by “any conduct of the deceased toward or affecting” the killer.
The deceased’s conduct must be enough that an “ordinary person” would also have lost self control and have formed intent to kill or inflict grievous bodily harm.
Between 1990 and 2004 in NSW there were 28 successful provocation cases involving “violent physical confrontations”, 11 after homosexual advances, 11 after “intimate relationship” confrontations, 13 involving domestic violence, 8 involving family violence, 3 after non-family sexual assault and one successful provocation case after a person was provoked by words alone.

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