Sucker Punches and Provocation

In the light of recent ‘One Punch Can Kill’ media campaigns the Victorian Government has announced their intention to introduce mandatory minimum sentencing of 10 years for ‘king-hit’ killers, following the example set in New South Wales after public outrage when Kieran Loveridge received a 4 year sentence for punching Thomas Kelly at King’s Cross in Sydney, resulting in Kelly’s death.

In Queensland there have been a number of similar cases recently, prompting the Government to propose an amendment to the current Safe Night Out Legislation incorporating circumstances in which the deceased suffered a fatal strike to the head. Previously, the offender was able to claim they acted in response to provocation by the deceased in order to reduce their sentence from murder to manslaughter.

This defence can be traced back to the 17th century. At that time the law distinguished between premeditated murder (‘malice aforethought’), for which the penalty was death, and killings carried out in the heat of the moment (‘in hot blood’), where the defendant was provoked by the victim and passions ran high. This was classed as manslaughter and the punishment was imprisonment.

Based on Queensland Law Reform Commission Recommendations in 2008, a Bill to wind back the partial defence of provocation reducing murder charges to manslaughter if the act occurred in the heat of passion, the so-called ‘crime passionelle’, was passed in March 2011. Offenders can no longer claim to be provoked by verbal insults or adverse comments in an attempt to reduce a murder charge to manslaughter, except in extreme and exceptional circumstances. In other jurisdictions, provocation has been abolished, but in Queensland it has been retained because of mandatory life sentencing in the case of murder.

The amended section 304 of the Queensland Criminal Code 1899 limits the use of provocation as a defence to circumstances where all 12 jury members agree that the act on the face of the provocation was fair, reasonable and something an ordinary person would do. The onus of proof, usually on the
prosecution in criminal cases as the defendant is presumed innocent until proven guilty, is now on the defendant.

The defence has, in the past, also been called upon in cases of domestic violence resulting in death and so-called “gay advance” cases, however these have also been practically ruled out under the changes to sections 304 of the Criminal Code. At the same time changes were made to section 23 which removed the term ‘accident’ with regards to an act that is unintentional, or of which the consequences are not reasonably foreseeable by an ordinary person.

However, under the new proposed Safe Night Out Legislation Amendment Bill 2014 there will be no accident or provocation defence. The Bill proposes the
insertion of new section 302A into the Criminal Code regarding unlawful striking causing death and imposes a maximum sentence of life imprisonment. It also introduces a standard non-parole period scheme, of 80% of the imposed sentence or 15 years, whichever is the lesser. The Bill has attracted some criticism, notably from the Queensland Law Society and the Bar Association of Queensland, so it remains to be seen whether the legislation will be implemented in this form.