Does the Use of the Provocation Defence Provide Justice for Victims, Offenders and Society

Victim – Manpreet Kaur (husband Chamanjot Singh). Murdered by her husband with her throat but eight times. Her husband claimed that she told him she loved another man and that she would have him deported back to India. He said that this was enough provocation for him to lose self control and that he has no knowledge of the events that followed him picking up a box cutter.

The difficulty in assessing his guilt or innocence in this case was that there was no witnesses to the crime or the events preceding the crime and therefore it becomes an issue of whether the jury accepts the account of a single person (as the victim can no longer defend themselves). A successful provocation defence means that the offender’s culpability is significantly reduced as the charge is reduced from murder to manslaughter. In the case of Chamanjot Singh he received a sentence of 6 years imprisonment.

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The minimum sentence for someone convicted of murder is 25 years. As was mentioned on the Insight program Provoked aired on SBS television by the victim’s sister Chamanjot would be free to leave gaol in 3 years (having already served 3) and go back to his family and friends, she would never see her sister again. It is therefore questionable as to whether Chamanjot’s successful use of the provocation defence has provided justice for Manpreet and her extended family.

Offenders – The use of the provocation defence enables offenders (who feel that they were provoked to the point that an ordinary person would have lost control) to have their level of culpability reduced from murder to manslaughter. Without this partial defence battered women would have no alternative but to argue their innocence on the basis of self defence. Failure to win a case on the grounds of self defence would mean that the victim would receive the minimum sentence for murder ie. 25 years.

The other problem with the use of self defence as a defence is that the response must be in proportion to the threat faced. Murdering someone may not be seen as been a proportionate response. However, recognition of the ongoing nature of domestic violence may result in the offender receiving a light sentence or even a good behaviour bond for their crime. The removal of the provocation defence may in fact disadvantage women who see no other alternative than to defend themselves against abusive partners.

However, it could be argued that offenders may abuse this defence as a means of having their sentence reduced. A problem with the use of this defence by offenders is that their victim is not present to dispute their version of events. Unless there are witnesses to the events that take place it is difficult to refute the statements of the offender that they were provoked. The defence may also (in the absence of the victim) denigrate the character of the victim in their attempts to paint him/her as someone who is highly likely to cause a loss of control by an ordinary person.

In criminal cases the burden of proof lies with the prosecution and in the absence of a witness to the crime it is difficult to prove that the offender was not provoked such that an ordinary person would lose control and in turn form the intent to kill or cause really serious bodily harm. Society – There have been instances where the provocation defence has been used and offenders have received light sentences such as good behaviour bonds (GBB) with very little public outcry. One example used in the Insight program on provocation was the situation where a street kid who assaulted and killed an older man who he was living with.

The older man had previously sexually abused the street kid and when he approached him 3 weeks later whilst naked (after bathing) the younger man lost control and bashed the older man to death. The 16 year old boy was given a 3 year GBB with no community outcry. Also cited in the program are cases where abused women have been able to successfully argue provocation and receive GBB. These cases suggest that society is of the view that there are circumstances where an ordinary person may be provoked and in turn form the intent to kill or cause really serious bodily harm.

However, cases such as the Manpreet Kaur case where there has been considerable public outcry over what is deemed to be a very light sentence suggest that society considers such sentences to be unjust and the law of provocation worthy of scrutiny. As a result of this case a parliamentary inquiry has been launched into whether to maintain, amend or abolish the law of provocation. This parliamentary inquiry is ongoing at this time (November 30th, 2012) Other viewpoints expressed within the program were that in a civilised society we should not condone uch loss of self control.

The Tasmanian DPP states that perhaps a better way to go is to allow judges the discretion to analyse a case on its merits and sentence accordingly, but that those people should be tried for murder. A NSW Senior Public Defender, Mark Ierace SC states that perhaps we should be involving juries more in the determination of whether an ordinary person would be likely to lose self control in the circumstances to be judged and thereby canvass the opinions of a cross section of the community as to whether the defence of provocation is appropriate.