Development of Defense of Provocation

Question: Critically evaluate the development of common law principles
applicable to the defence of provocation in criminal law from the decision in
Mancini v DPP [1942] AC 1 to Mascantonio v R (1995) 183 CLR 58. Assess the
degree to which the common law has proved inflexible in responding changing
societal needs and expectations. Are there other legal means of achieving
substantive justice?

At the time of the case of Mancini the concept of provocation as a
defence to murder was already a well established one dating back centuries. It
originated from the days when men bore arms and engaged in quarrels of violence
that often resulted in a homicide being committed. For provocation to be an
ample defence to murder it needed to be something which incited immediate anger,
or "passion" and which overcame a person's self control to such an extent so as
to overpower or swamp his reason. What this something can be has been the
subject of many views through the centuries, and these views have strongly
depended upon the type of person whom the law has regarded as deserving
extenuated consideration when provoked to kill. In the words of Viscount Simon
"the law has to reconcile respect for the sanctity of human life with
recognition of the effect of provocation on human frailty. " In this regard the
difficult concept of the "reasonable man" or the "ordinary man" has developed
and with it the legal doctrine that provocation must be such as would not only
cause the person accused to behave as he did but as would cause an ordinary man
to so lose control of himself as to act in the same sort of way. It is therefore
interesting to examine how the doctrine of common law in relation to provocation
has responded to changing societal needs and values. It also provides a useful
case study in which the development of common law doctrine can be observed. It
is useful to conduct a case-by-case analysis of the rule of provocation as a
defence to murder in order to more effectively observe the legal evolution that
has taken place.
In the case of Mancini v DPP [1942] AC 1 the appellant had been
convicted for murder after stabbing a man to death in a club. The appellant's
counsel contended that the trial judge should have directed that the jury was
open to find provocation to reduce the appellant's conviction to manslaughter.
Lord Simonds provided direction upon what kind of provocation would reduce
murder to manslaughter. He said that the provocation must temporarily deprive
the provoked individual of self-control and in deciding this regard must be had
to the following circumstances: the nature of the act which causes death, the
time which elapsed between the provocation and the act which caused death, the
offender's conduct during that interval and all other circumstances which
indicate his state of mind. It is here that the well known characteristics of
"an unusually excitable or pugnacious" person are excluded from amounting to
provocation. Lord Simonds also said that "the mode of resentment must bear a
reasonable relationship to the provocation if the offence is to be reduced to
The case which was to follow Mancini was Holmes v DPP [1946] AC 588. In
this case a man killed his wife after a confession of unfaithfulness on her
behalf. He was convicted of murder and appealed that the defence of provocation
should have been left open to the jury. In his judgment of the case Viscount
Simon stated that the crux of the case was whether "mere words can ever be
regarded as so provocative to a reasonable man as to reduce to manslaughter
felonious homicide committed upon the speaker in consequence of such verbal
provocation." "Mere words" however were attributed with having more than one
meaning. There were words which were provocative by insulting or abusive
language, and words that conveyed information of a fact, or an alleged fact. In
regards to verbal abuse Viscount Simon made his opinion clear; "the law expects
a reasonable man to endure abuse without resorting to fatal violence," and in
regards to the admission of adultery he also expressed his opinion as "a sudden
confession of adultery without more can never constitute provocation of a sort
which might reduce murder to manslaughter." Though these statements were indeed
firm, Viscount Simon himself recognised the need for flexibility in the common
law in climates of social change, saying "the application of common law
principles in matters such as this must to some extent be controlled by the
evolution of society." Indeed, the need for change would in fact alter these
common law principles in the years to come.
The flexibility of the