Political Rhetoric or Principled Reform of Loss of Control? Anglo-Australian Perspectives on the Exclusionary Conduct Model

The New South Wales Legislative Council Select Committee published its report on the partial defence of provocation in April 2013. The Committee's recommendations are closely modelled on the framework and rationale of the loss of control defence under ss 54–56 of the Coroners and Justice Act 2009, with significant exceptions designed to circumvent the difficulties associated with the novel terminology. Interestingly, the Committee advocates the adoption of an exclusionary conduct model, despite the problems associated with s. 55(6)(c), which specifies that sexual infidelity is to be disregarded for the purposes of the concessionary mitigation. The Committee asserts that a carefully worded exclusionary conduct model would serve to restrict the partial defence whilst avoiding the issues which have manifested themselves at appellate court level in England and Wales. Irrespective of the wording, specific prohibitions which focus on the conduct of the victim are unrealistic in that they fail to account for the multitudinous and interconnected nature of loss of control/provocation claims. Nevertheless, exclusionary conduct models which concentrate on the conduct of the victim ought to be distinguished from clauses which focus on the defendant's actions. If the defendant undertakes to cause the victim to respond in a manner for the purpose of providing an excuse to use violence it is clear that the defence ought not to apply. Similarly, where a defendant becomes voluntarily intoxicated, it may be appropriate to exclude that intoxication from consideration when making the objective assessment as to whether an ordinary/reasonable person would have reacted as the defendant did in the circumstances. In this context, explicit legislative exclusions do have the potential to prevent unnecessary appellate litigation, but only in limited circumstances.