Essay On Culpability And Culture

Culture, Crime and Culpability: perspectives on the defence of provocation
Kumaralingam Amirthalingam(

Introduction

Cultural considerations assume particular significance when an accused is from a minority culture, as it is the moral values of the majority that are relied on to determine the accused’s criminal culpability. Occasionally, the accused is in a position of disadvantage as there may be a disjunct between the cultural values he or she is operating under and the cultural values relied on by the court in judging the accused. There is a question of fairness that is raised: is it justifiable to punish a member of a minority culture under laws or norms reflecting those of the majority culture? This question was tested in a series of cases in American courts where defendants from immigrant communities in the United States introduced cultural evidence to argue against criminal liability on the ground that the conduct of the accused was not wrong, indeed in some cases that it was even mandated, according to the cultural norms of the accused’s community.[1]

The judicial and academic responses have covered a wide range of options, from the creation of a separate ‘cultural defence’ through the modification of existing
defences to accommodate different cultural values, to the use of cultural evidence as mitigating factors in sentencing, to the rejection of cultural arguments. The debate is often emotional as there are political consequences; mainstream or majority cultural groups fear that the established legal order is threatened while minority cultural groups object to having their norms and value systems marginalised. There is the added complication that culture is seen as pertinent only to immigrants and ‘coloured’ racial minorities, connoting an inferior standard that has to be accommodated by the grace of the majority:

[B]ehaviour that we might find troubling is more often causally attributed to a group-defined culture when the actor is perceived to ‘have’ culture. Because we tend to perceive white Americans as ‘people without culture’. When white people engage in certain practices we do not associate their behaviour with a racialized conception of culture, but rather construct other non-cultural explanations. … Under this schema, white people are individual actors; people of color are members of groups.[2]

This raises the question of whether a cultural defence should be available to the mainstream or majority culture in a society.[3] On 11 December 2005, thousands of white Australians were mobilised by text messages to gather on Cronulla Beach, Sydney and attack members of the Lebanese community. The mob violence was triggered by an assault by some youth of Lebanese origin on two white Australian lifeguards at the beach. There have been suggestions that one of the reasons for this violent reaction by young, white Australians against the Lebanese community was the ‘Australian beach culture’. Young, white Australians felt that their traditional cultural space (the beach) was being threatened; as one media correspondent put it, the attack on the lifeguards who patrolled the beach was ‘to threaten the very fabric of modern Australia and its strongly held traditions.’[4] One of the Australian youths involved in the violence referred to the beach and said, ‘This is what we're fighting for,’… ‘Like our fathers, our grandfathers, fought for these beaches and now it's our turn.’[5]

There is a real danger of overplaying the culture card in criminal law.[6] It may be more productive to simply reform and enhance the scope of existing defences by adopting a more culturally inclusive approach to criminal law. This chapter divides itself into two parts; the first provides some general theoretical background and context, the second studies a specific area, namely the defence of provocation. It is suggested that much can be gained by focusing on the distinction between justification and excuse to develop a politically acceptable and theoretically defensible approach to the accommodation of cultural arguments within the existing framework for criminal defences. The focus of analysis is the law of provocation, which relies on an objective assessment of culpability based on the reactions of an ‘ordinary’ or ‘reasonable’ person.[7] The problem is that the persona of this ordinary person is generally drawn from the dominant culture and potentially discriminates against minorities. Case studies from Australia and India will be used to illustrate some of the arguments and challenges.

Part I

criminal law and moral blameworthiness

Criminal law discourse is deeply rooted in the tension between retributivism and utilitarianism.[8] Reacting against the utilitarian theory of crime and punishment, which had dominated criminal law discourse for over a century, criminal law scholars and philosophers in the later part of the twentieth century argued strongly for moral justification of punishment in order to protect the autonomy of individuals against the power of states. George Fletcher, one of the leading figures in this movement, argued that the utilitarian goal of prioritising social interest had ‘overshadowed the more basic inquiry whether the punishment of the accused [was] morally justified.’[9] This is a concern that is now all the more acute in this age of fear, following the September 11 terrorist attacks. Common sense is sometimes ignored and the danger of punishing innocent individuals is high.[10]

Fletcher’s call to balance state power against personal liberty, made over a quarter of a century ago, is all the more important today in an era where states, even traditionally liberal ones, driven by fear of terrorism and threats to established order, are enacting increasingly repressive laws and dismantling many civil liberty safeguards.[11] Members of minority groups bear the worst of these changes, as they are often targeted under racial profiling policies.[12] Fletcher advocated an approach that embedded political and moral philosophy in the doctrinal analysis of criminal law.

Criminal law is a species of political and moral philosophy. Its central question is justifying the use of the state’s coercive power against free and autonomous persons. The link with moral philosophy derives from one’s answer to the problem of justifying the use of state power. If the rationale or a limiting condition of criminal punishment is personal desert, then legal theory invariably interweaves with philosophical claims about wrongdoing, culpability, justifying circumstances and excuses.[13]

Many scholars share this preference for a moral justification for punishment based on the retributive theory;[14] academics supporting a cultural defence are particularly staunch supporters.[15] Utilitarianism and retributivism both have much to offer criminal law jurisprudence, but in different spheres. It is suggested that utilitarianism should be concerned with theories of criminalization, while retributivism should be concerned with theories of punishment. Utilitarianism, with its instrumentalist outlook, provides sound reasons and justification for criminalization of certain conduct or activities. It justifies restricting the freedom of the individual to engage in certain conduct because of its potential harm to others or to public order.

Where punishment is imposed for violation of a restriction, then such punishment can only be justified if it is deserved, ie if the individual is morally blameworthy. A distinction should be drawn between justifying the institution of punishment, which is relevant to the process of criminalization and the justification of punishment in individual cases, which raises more poignant questions of individual rights and liberties.[16] Utilitarianism remains relevant to the former; retributivism focuses on the latter. The utilitarian argument that punishment of individuals is justified because it has a deterrent value may be challenged on both philosophical and empirical grounds. If one subscribes to the Kantian philosophy of human dignity as a categorical imperative,[17] the instrumentalist approach of utilitarianism becomes unacceptable. Empirically, it has been argued that punishment may be less of a deterrent than the belief of people that crime is wrong;[18] hence, even under an instrumentalist approach, the utilitarian justification of punishment flounders. Further, if a person is punished when he or she is not morally blameworthy, respect for law is weakened and individuals are less likely to abide by laws that they believe to be unjust.[19]

Modern retributivism is based on the just deserts theory of punishment, of which there are two aspects. The first looks at moral blame, ie whether punishment is warranted at all. The second looks at the degree of harm and thence the degree of punishment that is required. This second aspect – the lex taliones principle – has overshadowed the first and has undermined the retributive theory.[20] It is important that the two aspects be kept separate as each raises different questions.[21] The question: “Is punishment justified?” is quite separate from the question: “How much punishment is justified?” The first question is relevant to the imposition of punishment, the second, to the quantum of punishment.[22] The imposition of punishment can only be justified if the individual deserves it, ie if the individual is morally blameworthy. As the positivist philosopher, Hart put it:

If a person whose action, judged ab extra, has offended against moral rules or principles, succeeds in establishing that he did this unintentionally and in spite of every precaution that it was possible for him to take, he is excused from moral responsibility, and to blame him in these circumstances would itself be considered morally objectionable. … A legal system would be open to serious moral condemnation if this were not so.[23]

culture and criminal law

The analysis of culture and criminal culpability may be divided into two categories. One concerns the legitimacy of the creation of a cultural offence by the dominant legal culture. The other focuses on the use of culture in the presentation of criminal defences by an individual from a minority culture.[24]

Cultural Offence

A useful description of a cultural offence is

an act by a member of a minority culture, which is considered an offence by the legal system of the dominant culture. That same act is nevertheless, within the cultural group of the offender, condoned, accepted as normal behaviour and approved or even endorsed and promoted in the given situation.[25]

The classic example is the wearing of the scarf by Muslim women and the banning of it in schools in certain non-Muslim countries, thus creating a cultural offence.[26] The situation is not limited to immigrants; in many cases, indigenous populations have become minorities in their own homelands. When their cultural norms clash with the dominant cultural norms of the legal system, their customary practices become crimes.[27] A third, and more complex situation, concerns former colonies where the dominant cultural values of the legal system reflect those of the erstwhile colonial masters. The local ruling elite in many cases retained these cultural values in the legal system even though these values were not shared by the majority of the population.[28]

An Australian example of a cultural offence, which found both judicial and political solutions, is seen in the context of traditional hunting and fishing rights of indigenous communities. In Walden v Hensler,[29] the accused was an Aboriginal elder who, with the permission of the land owner went hunting and killed a bush turkey for food. His son captured a turkey chick and took it home as a pet. The accused was charged under the Fauna Conservation Act 1974 (Qld) s54(1), which made it an offence to take or keep protected fauna, which included bush turkey. The accused argued that he was acting according to Aboriginal customary hunting practices. He did not know that bush turkeys were now protected fauna and that it was illegal to take or keep such fauna.[30] His defence was based on s22 of the Criminal Code 1899 (Qld), which provided for the claim of right defence with respect to any property offence. By a 3-2 majority, the High Court of Australia rejected the accused’s claim of right defence on the narrow and technical ground that the offence in question was not a ‘property offence’ and therefore did not attract the claim of right defence. Nevertheless, the High Court of Australia was unanimous in holding that the accused should be given a complete discharge.[31] Brennan J made this pertinent observation:

Nevertheless, the appellant was convicted, fined $100 and ordered to pay $260 by way of royalty, $30.50 court costs and $529 professional costs. It was ordered that, in default of payment, he be imprisoned for one month. All this for gathering food from his own country for his own family - as he and his people had been entitled to do and had done since before white settlement, and as he had never been stopped from doing and they had sometimes been encouraged to do by white authority. A comparison between the moral innocence of the appellant's conduct in gathering food for his family and the heavy financial burden of $919.50 which was imposed on him for doing so makes a mockery of justice. When that occurs, either the law or its application, or both, must be at fault. Justice cannot be mocked by a just law, justly applied. It would not have been surprising if a question had been raised by the appellant as to whether and how it came about in law that Aboriginal people had their traditional entitlement to gather food from their own country taken away, but that question was not raised.[32]

The question alluded to by Brennan J was answered five years later when the High Court of Australia decided Mabo & Ors v Queensland (No) 2,[33] where it rejected the terra nullius doctrine and held that native title had survived European settlement.[34] One consequence of this has been that traditional fishing rights have been re-legitimized. In Yanner v Eaton,[35] the accused, a member of an Aboriginal community in Queensland, had killed two crocodiles according to traditional custom. He was charged under the same Act used against Walden – the Fauna Conservation Act 1974 (Qld) s54(1). The High Court held that, following the Mabo decision and the subsequent Native Title Act 1993, the traditional hunting and fishing rights of Aboriginal people was recognised.[36] The Fauna Conservation Act 1974 (Qld) did not extinguish that right and therefore the charges against the accused could not stand, as he had not done anything wrong; he had merely been exercising his legally recognised cultural rights.

The recognition of native title rights has been pivotal in providing greater sensitivity to aboriginal cultural rights and practices.
This is seen in the hunting and fishing cases and in the ongoing reform activity in this area with various recommendations for greater recognition of traditional or customary practices in legislation relating to management of fisheries and fauna in Australia.[37] Generally however, the Australian Law Reform Commission has considered and rejected the creation of a separate cultural (for migrants) or customary (for indigenous Australians) defence.[38] The Commission recommended that cultural factors be taken into account in sentencing to determine if any mitigation was
appropriate.[39]

Culture and Criminal Defences

A cultural defence

The creation – and elimination – of cultural offences is a matter that is politically sensitive and often requires a political solution. A cultural defence, on the other hand, can be developed judicially. However, there are several obstacles to the development of a cultural defence. It risks fragmenting the law and resulting in unequal treatment of individuals. As Coleman warns:

While the cultural defense is consistent with ‘progressive’ criminal defense philosophy which advocates that justice should be as individualized as possible, it must be balanced against the risks of dangerous balkanization of criminal law, where non-immigrant Americans are subject to one set of laws and immigrant Americans to another.[40]

Too much emphasis on a cultural defence threatens the emotional security of members of both the dominant and minority culture by accentuating differences and creating greater alienation and disharmony within society.[41] There is also a risk that it may legitimise discriminatory practices against women and children,[42] who often do not have a say in determining cultural norms.[43] Culture is a dynamic concept, which evolves over time and adapts to different influences from within and without. However, immigrants or diasporic communities, when asserting their cultural identity, tend to have a point of reference that is fixed to the time of the first wave of emigration or dispersion:

The public/private split in Indian diasporic communities has resulted in a version of Indian (often Hindu) culture being maintained that is static and rigid. As Shamita Das Dasgupta has argued, the attitudes of Indians long settled in the US have frozen in time, even as India has changed. They tend to stick to the older picture of India.[44]

While cultural norms and practices evolve as part of the natural process of modernization in the country of origin, migrant and diasporic communities strategically adopt or reject different aspects of their cultural identity. Practices that are no longer condoned, or have been outlawed in their original homelands, risk being championed in their adoptive countries under the guise of a cultural defence.

Proponents of the cultural defence have argued that it may be used as a ‘mitigating defence’ or partial excuse. This suggests a kind of compromise position, which, while superficially attractive, is not altogether desirable. The mitigating factor in partial excuses is generally a type of character weakness or flaw, as seen in partial excuses like provocation and diminished responsibility. The former is based on loss of control, generally due to emotions of anger or passion; it is recognition of ‘human frailty’.[45] The latter is based on a deficient mental state and is recognition that the accused is not ‘normal’ or fully capable of being held personally responsible. It has been referred to as the ‘half bad, half mad’[46] defence. To treat the cultural defence as a partial defence risks degrading the culture of the accused; it likens the culture to a human weakness or deficiency, suggesting that the culture of the accused is inferior to the culture of the majority.

A preferable approach is to encourage a culturally sensitive interpretation and application of existing defences. The experience with the development of the ‘battered woman syndrome’ defence by feminist scholars provides some valuable lessons.[47] Historically, women who killed their abusive partners and claimed self defence rarely succeeded in their defence. One of the reasons was because the law required the killing in self defence to be a reasonable response and in most cases involving abused women who killed their partners, courts found the response to be unreasonable. Feminist scholars argued that courts were using a male standard of reasonableness for aggression, which did not encompass a battered woman’s response. When evidence of ‘battered woman syndrome’ was admitted, judges and juries were able to evaluate the response from an alternative perspective and in some cases were able to hold that such response was reasonable.[48] ‘Battered woman syndrome’ was not proffered as a separate defence, but was instead used to educate judges and juries of alternative realities in order to allow the existing doctrines to be applied fairly to battered women who kill.[49] As leading Australian scholars in the area explained:

BWS, and other expert evidence concerning battering and its effects, were originally developed in order to extend traditional legal doctrine to the kinds of life experiences likely to be faced by women. It was not, as we have indicated above, intended to develop a special defence or pleading for battered women. It is to be hoped that there will come a time when community and judicial understandings of domestic violence as a phenomenon are sufficiently informed and sophisticated that expert testimony is not necessary for the finder of fact to realistically understand the context in which women’s defensive force might take place.[50]

Theorizing about criminal defences and culture

The dominant theoretical framework for the analysis of criminal defences is found in the distinction between justification and excuse. While this distinction was critical even two centuries ago,[51] it is in the last thirty years that it has come to the forefront of criminal law discourse.[52] This distinction provides a principled method of accommodating cultural contexts in criminal defences, without distorting general norms or threatening established legal and political order. A separate issue that warrants some theoretical discussion relates to the ‘reasonable person’ test. This is often the benchmark for judging the criminal culpability, and even civil liability, of individuals as it sets an objective standard that society expects of individuals. The problem is that what is objective and what is reasonable are largely determined by our cultural filters, and therefore it is critical that the reasonable person be sufficiently attuned to different cultural perspectives and norms.

Justification and Excuse

A justificatory defence arises where the conduct of the accused is sanctioned by society and the legal system. The classic example is self-defence. A person who kills another in self-defence is justified in doing so. The killing in self-defence is not viewed as a wrongdoing by society; a justificatory defence thus negatives wrongdoing. The accused escapes liability because he or she has done no wrong. An excusatory defence arises where the accused has committed a wrongdoing, but under such circumstances that no blameworthiness can fairly be attributed to the accused. The classic example is mistake. A person who mistakenly believes he or she is shooting at an animal, but instead kills a human is not guilty of murder.[53] The killing is viewed as a wrongdoing by society, but the accused escapes criminal liability because no blameworthiness can fairly be attributed.

There are several theories of excuse, variously based on character,[54] capacity,[55] choice,[56] motive;[57] common to all is the underpinning of the retributive theory. The question should be whether or not the cultural factors paint a picture of the accused – vis-à-vis the wrongdoing – that shows a person with a character that deserves punishment, or a person who did not freely choose to commit a crime or whose motive explained his or her conduct. By placing cultural defences within excuses, a balance can be maintained between preserving the established norms of society and treating individuals from different cultures fairly.

It avoids the pitfalls of the ‘balkanization’[58] of the criminal law, as excuses do not modify existing norms nor create precedents, in the sense that justificatory defences do.[59] It shows respect for individuals and other cultural norms by recognizing that adherence to or guidance by one’s cultural values is not a stain on one’s character. By dealing with the justification of punishment within the criminal law itself, rather than outsourcing it to sentencing discretion, it also enhances the moral standing of the criminal justice system by being true to itself:

To blame a person is to express a moral criticism, and if the person’s action does not deserve criticism, blaming him is a kind of falsehood and is, to the extent the person is injured by being blamed, unjust to him. It is this feature of our everyday moral practices that lies behind the law’s excuses. Excuses, then, … represent no sentimental compromise with the demands of a moral code; they are, on the contrary, of the essence of a moral code.[60]

Reasonable Person

The ultimate determination of criminal and civil liability often turns on an objective standard based on the reasonable person.[61] The reasonable person is based on the notional, reasonable person in society, classically described as ‘the man on the Clapham omnibus.’[62] This phrase was originally used at the turn of the nineteenth century when Clapham was a locality populated by the working class, thus making the reasonable person of the law a white, working class, English, Christian male. Even under a more normative approach, where the reasonable person is meant to reflect the community’s expectation,[63] it is inevitably the judge’s or jury’s own perception of what constitutes reasonableness that applies.[64] The judge’s own cultural background and value assumptions become the default benchmark for the law’s standard of reasonableness.

A major problem with using the reasonable person standard is that too much emphasis is put on ‘person’ rather than ‘reasonable’.[65] So debate goes on as to whether the reasonable person should be male or female, culturally neutral or culturally specific, young or old, intelligent or mentally impaired. The man on the Clapham omnibus is one day the young girl on the DTC bus,[66] then the old man on the Yishun MRT,[67] and then the middle aged woman on the Nonthaburi tuk tuk.[68] This focus on the actual make-up of the person – the “anthropomorphism”[69] of the reasonable person – generates unnecessary conflict and tension, diverting attention away from the real question of moral blameworthiness or accountability. This fictitious creature, arbitrarily attributed with some, all, or none of the characteristics peculiar to the actual individual on trial then becomes the ‘ideal’ by which the actual individual is judged. A comparison with this reasonable person is made; if the accused measures up to this reasonable person, he or she is blameless.

Instead, it is suggested that the reasonableness of the actual individual’s behaviour be directly investigated. Has the individual, taking into account personal characteristics, including culture, behaved reasonably? Is his character vis-à-vis the wrongdoing such that moral blameworthiness can fairly be attributed? This is a judgment that has to be made normatively with justice to the individual being the focus. Here, sensitivity to the cultural practices and norms of the individual is critical and judges should not be captured by the political or mainstream mood of the moment. Cynthia Lee provides a compelling illustration by demonstrating how Americans at one time believed slavery to be reasonable; now, they generally agree that it is unreasonable.[70] Americans in the 1940s thought it was reasonable to arbitrarily intern Japanese Americans; now most do not share that belief. Justice and fairness are ideals that should rise higher than the temporal interests of the majority culture or community.

A poignant question put by Lee is whether or not future generations will disagree with the current generation’s apathy towards the indiscriminate incarceration and human rights violations of Asians and Middle-Easterners following the terrorist attacks of September 11.[71] If we lack cultural sensitivity in our construction of reasonable behaviour in matters of criminal liability, it is equally likely that history will judge us poorly.

PART II

Provocation

Provocation operates as a partial defence to murder, reducing the charge to manslaughter (Australia) or culpable homicide not amounting to murder (India).[72] Its practical effect is to reduce the punishment imposed on the accused. The rationale behind the defence is that a person who kills as a result of provocation is not as morally blameworthy as a person who kills in cold blood and therefore should not be labelled a murderer nor be subject to the higher penalties for murder.[73] The defence is less significant in jurisdictions where discretionary sentencing is available for murder, but remains highly relevant in jurisdictions where there is a mandatory penalty for murder, including death.[74]

The law on provocation is roughly the same in the two jurisdictions under discussion. The essential elements are that the accused must have lost control as a result of the deceased’s provocation and the provocation must have been so grave that an ordinary person in the position of the accused could also have lost control and killed. The defence thus requires examination of loss of control at two levels – one subjective, questioning whether the accused actually lost control; and one objective, determining whether the ordinary person, similarly provoked, could have lost control. The problem is in constructing the ordinary (or reasonable) person for the objective test; how much of the personal characteristics, including the cultural background, of the accused should be attributed to the ordinary person? Since provocation is meant to be a concession to human frailty, too rigid an adherence to a purely objective test defeats the purpose of the defence.[75]

Australia

There is a tension between maintaining a purely objective test at the expense of including personal traits of the accused and diluting the objective test to the point of it becoming a subjective test by incorporating all of the personal characteristics of the accused. The compromise that courts arrived at was to draw a distinction between the gravity of the provocation and the level of control in determining whether the ordinary person could have lost control.[76] Any individual peculiarity of the accused relevant to the sting or gravity of the provocation may be attributed to the ordinary person to determine whether or not the ordinary person could have been severely provoked. This would include the cultural makeup of the accused. For example, if the provocative conduct was a racial slur, then the racial background of the accused would be attributed to the ordinary person in order to assess the true sting of the provocation. However, in assessing the level of self-control expected of the ordinary person, the only characteristic of the accused to be attributed to the ordinary person is age,[77] as it would be unfair to expect the maturity of an adult in a child.[78] While this split approach allows for some contextualisation of the accused’s cultural background,[79] it ignores the fact that culture is relevant not only to the sting of the provocation but also to the emotional response of an individual.

Aboriginal Offenders

Australian courts until the 1990s adopted an inclusive approach to the objective test when dealing with aboriginal offenders and considered cultural factors in determining the level of self-control expected of the accused. For example, in R v Muddarubba,[80] the accused was a member of the Pitjintjara tribe who had been provoked by another tribe member and ended up killing him with a spear. Kriewaldt J said in that case, ‘I shall continue to tell juries that the members of the Pitjintjara tribe are to be considered as a separate community for the purposes of the rules relating to provocation.’[81] Courts in the northern part of Australia are more attuned to Aboriginal sensitivities than courts in the south and southeast, due to the larger proportion of Aborigines living in the northern regions.[82] Even after the High Court of Australia held that an accused’s culture should not be attributed to the ordinary person in determining the level of self-control to be expected,[83] some courts have continued to test ordinary levels of self-control with respect to provocation in murder cases by taking into account the accused’s Aboriginal culture.[84]

Provocation is also a defence to assault in several Australian jurisdictions,[85] but in the assault cases, there is a slightly different approach to culture and the objective test. Because provocation operates as a complete defence to assault, resulting in an acquittal rather than merely a partial defence, it suggests that the accused was justified, as opposed to merely being excused. Not surprisingly, courts are less sanguine about taking into account cultural factors:

Where provocation has a role merely in reducing the crime of murder to one of manslaughter, it may be arguable that taking account of characteristics of these kinds is merely a concession to the ‘human frailty’ of those who hold views which may be unacceptable to a majority in the community. Where, however, the defence results in a complete acquittal, if the law takes account of characteristics of this kind and merely asks what the gravity of the provocation is from the viewpoint of the accused, it sends an unambiguous message to, among others, undutiful wives or assertive daughters who may not share the accused's beliefs, that they must nevertheless conform to those beliefs or suffer violence which the law may not punish.[86]

This reinforces the significance of the distinction between justification and excuse when it comes to taking into account culture as an extenuating factor. Because an excuse does not modify the norm, attention can be focused solely on whether or not the accused is deserving of criminal sanction, without the distractions as to whether or not allowing a defence in the particular case will send a wrong signal to the community that such conduct is condoned.

Migrant Offenders

Courts have generally treated migrant communities slightly differently from aboriginal communities when considering the cultural background of the accused. Some of the earlier decisions took into account the accused’s culture in assessing the level of self control to be expected of the ordinary person. In the Victorian case of R v Dincer,[87] the accused, described as a conservative Muslim of Turkish origin, had stabbed and killed his teenage daughter because she had left home against her parents’ will and taken up with a young man. The court heard evidence that the accused came from a culture where the man was the head of the household and disobedience by children was not tolerated. In particular, loss of virginity in an unmarried daughter was a matter of great shame and dishonour to the family.

In explaining to the jury the objective test of loss of control in provocation, Lush J referred with approval to earlier Australian authorities,[88] which held that the ordinary person should be imbued with all permanent characteristics of the accused, and stated:

The first question here is, who is an ordinary man for this purpose? Well, the answer is that ordinary men come in all shapes and sizes with enormous variety of backgrounds of race, religion, colour. It would be very hard to draw any satisfactory limit to the factors. All people, despite the vast differences within the scope of the few things I have mentioned, they are all people who could be classed as ordinary men, and, when a jury is considering whether what an accused man did was within the range of what an ordinary man might have done under the same provocation, the jury must consider an ordinary man who has the same characteristics as the man in the dock. In this case it has been put to you from the outset that you have to take into consideration the fact that Dincer is Turkish by birth, the fact that he is Muslim by religion, the fact that he is one whom some of the witnesses were prepared to describe as a traditionalist, the picture painted of him that he was a conservative Muslim, and as part of the consequences of those characteristics that he carries about with him as part of his own personality there are the social practices which are assessed by him as desirable or undesirable, permissible or not permissible, by reference to those essential background aspects of his character.[89]

This culturally accommodative approach was controversial and was halted in the 1990s, in a series of High Court of Australia decisions, beginning with the Stingel v R,[90] where the High Court affirmed the dualistic approach to the ordinary person test, distinguishing between gravity of provocation and level of self control. The court held that the objective test with respect to the ordinary level of self-control could not be modified by the accused’s characteristics apart from immaturity due to age.[91] A few years later the High Court decided Masciantonio v R,[92] which involved an Italian immigrant who had murdered his son-in-law because the latter had ill-treated his wife, the accused’s daughter. A majority reaffirmed the view in Stingel, but McHugh J rejected the Stingel view and made a powerful argument in favour of taking into account the accused’s cultural background:

In a multicultural society such as Australia, the notion of an ordinary person is pure fiction. Worse still, its invocation in cases heard by juries of predominantly Anglo-Saxon-Celtic origin almost certainly results in the accused being judged by the standard of self-control attributed to a middle class Australian of Anglo-Saxon-Celtic heritage, that being the stereotype of the ordinary person with which the jurors are most familiar. … [U]nless the ethnic or cultural background of the accused is attributed to the ordinary person, the objective test of self-control results in inequality before the law. Real equality before the law cannot exist when ethnic or cultural minorities are convicted or acquitted of murder according to a standard that reflects the values of the dominant class but does not reflect the values of those minorities.[93]

McHugh J’s emphasis on real equality pinpoints the critical issue in these cases. Understanding that there is a paradigm for ‘ordinary standards’ that differs from that of the majority culture does not diminish the strength of the law, nor does it necessarily result in negative stereotyping,[94] as long as the cultural accommodation is done sensibly and sensitively.[95] As an excuse, the general norm is not affected; the court is not legitimising any particular cultural practice that may be viewed as incompatible with modern notions of equality and human rights. All the court is doing is focusing on the moral blameworthiness of the accused and making a context specific judgment as to whether or to what extent the accused deserves criminal punishment.

Despite McHugh J’s strident comments,[96] which he restated in R v Green,[97] the law in Australia is that stated in Stingel and by the majority in Masciantonio: In determining the gravity of the provocation, the ordinary person is vested with all relevant characteristics of the accused, including cultural factors, but the assessment of the level of self-control of the ordinary person is purely objective and does not take into account ethnicity or culture. Recent cases from Victoria affirm this approach.

In R v Yasso,[98] the accused was a member of the Chaldean Christian community from Iraq who had migrated to Australia some years before the incident. The accused was charged with the murder of his wife and on appeal it was argued that the defence of provocation, including his cultural background, should have been left to the jury. It was argued that the deceased had been having an affair with another man and on the day of the killing had spat at the accused. According to the community, spitting at one’s husband was considered the worst type of insult and infidelity was not tolerated. By a 2-1 majority, the Court of Appeal held that the defence of provocation should have been put to the jury, based on the Masciantonio test. At his retrial, the defence of provocation failed and the accused was found guilty of murder and sentenced to twenty years jail.[99]

In R v Tuncay,[100] the accused was a Turkish Muslim who killed his wife after she threatened to take the children and leave him because of his drinking. He pleaded with her to stay and she said ‘gebher’, which according to the interpreter was a Turkish expression used when someone wanted to be free of another or if they want the other dead. The accused lost control and killed his wife. The defence of provocation failed at trial and on appeal, the court held that the defence should not have been put to the jury on the ground that no reasonable jury could have concluded that the deceased’s conduct was sufficiently provocative to cause an ordinary person to lose control and kill. The accused was sentenced to eighteen years imprisonment.

In R v Abebe,[101] the accused was an Ethiopian who murdered his ex-wife’s lover. The accused relied on provocation and gave evidence that the behaviour of his ex-wife was against the norms of his community and extremely humiliating to him. Just before the murder, his ex-wife and deceased told him they were lovers and were going to live together. The deceased smiled at the accused in a provocative manner. The accused was convicted and on appeal it was held that the trial judge had misdirected the jury by failing to explain to them that, in the consideration of the gravity of the allegedly provocative conduct, the accused was entitled to have brought into consideration his ethnicity, that is, the fact that he and all the others involved were Ethiopian or Eritrean, the evidence of what was occurring between the accused's ex-wife and the deceased, the rumours in the Ethiopian community as to their relationship, and the accused's shame and humiliation. The accused was convicted of manslaughter and sentenced to eight years imprisonment.[102]

In R v Leonboyer,[103] the accused was from Chile and had murdered his fiancé, who was from Colombia. The provocation consisted of the deceased’s confession of infidelity and a taunt about the accused’s sexual prowess. In rejecting the defence, Charles JA held that the cultural evidence did not add to any special understanding of the gravity of the provocation and made this observation on multicultural societies:

He had, as I have said, lived most of his life in Australia. Having regard to the multi-cultural nature of present Australian society, there are strong reasons in public policy militating against acceptance of the view that the fact that a man comes from a particular cultural background puts him in any special or different position with respect to provocation.[104]

Charles JA’s view is in contrast to that of McHugh J in Masciantonio; the latter reflects a more sensitive and just approach to criminal culpability, but the former reflects the current law and practice in Australia. Leave to appeal Leonboyer to the High Court of Australia was refused.[105] While it is speculative to draw any conclusions from these cases, one pattern that emerges is that courts tend to be less sympathetic to accused who murder their wives or fiancés as compared to those who murder the alleged paramour.

India

Exception 1 to s300 provides the defence of provocation in the context of murder and it reads:

Culpable homicide is not murder if the offender whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation, or causes the death of any other person by mistake or accident.

The provision itself makes no mention of an objective test based on an ordinary person’s response, but the Indian courts inexplicably read in an objective test, following English developments. Nevertheless, the Indian approach may be slightly broader than the Anglo-Australian approach with respect to culture and the ordinary person’s level of self-control. In the seminal case of Nanavati v State of Maharashtra,[106] the accused was an Indian naval officer who was married to an English woman. On learning that she was having an affair with another man, the accused became enraged, armed himself with a gun and went to the lover’s house where he confronted him and then shot him.[107] His defence of provocation failed because of the interval between the provocation and the killing as well as the fact that he had deliberately set out to kill the deceased. Nevertheless, the court made this crucial observation on the test for the ordinary person:

Is there any standard of a reasonable man for the application of the doctrine of ‘grave and sudden’ provocation? No abstract standard of reasonableness can be laid down. What a reasonable man will do in certain circumstances depends upon the customs, manners, way of life, traditional values etc; in short, the cultural, social and emotional background of the society to which the accused belongs. In our vast country there are social groups ranging from the lowest to the highest state of civilization. It is neither possible nor desirable to lay down any standard with precision: it is for the court to decide in each case, having regard to the relevant circumstances.[108]

One reason why the Indian courts have had little trouble taking ethnicity into account is the fact that India is such a diverse country that there is an innate appreciation and respect for cultural difference. This has not been the case in countries such as the United States, England and Australia, which traditionally were relatively homogenous and are now facing the challenges of multiculturalism following massive immigration.[109] As multiculturalism becomes internalised, reaching beyond political rhetoric and residing in the social conscience of the people, the debate on whether ethnicity should be recognised will resolve itself as naturally as it did in Nanavati.

In the earlier decision of Ghulam Mustafa Gahno v Emperor,[110] the accused had killed his wife who had made a rude gesture (‘booja’)[111] which had provoked him. The accused and his wife were members of the Baluchi community in India. In considering the provocation defence, the court held that the ordinary person was ‘the ordinary normal Baluchi, when dealing with Baluchis and the ordinary normal Englishman when dealing with the English.’[112] The question was whether the power of self-control of an ordinary Baluchi would have been affected to such an extent by this provocation that an ordinary Baluchi could have killed the provoker. An elder in the community testified that showing the booja was a terrible insult, but that it would not provoke an ordinary Baluchi to kill. The defence thus failed.

It may be argued that there was an element of cultural superiority in operation as the judge was an Englishman and may have taken a condescending view of the Baluch as a ‘less sophisticated culture’. One should also question whether it is safe to rely, as the court did in Ghulam Mustafo Gano, on the testimony of one tribal elder, who in that case also happened to be the uncle of the accused. Should there have been broader consultation within the community or the appointment of an expert?

Taking account of cultural perspectives in determining reasonable or ordinary responses is not to give individuals from cultural minority groups a licence to break the law; it is simply to recognise that there are different standards of ordinariness or reasonableness. The standard is not based on the individual alone, but on the standards accepted by the cultural group as a whole. The danger is that there may be some ‘cultural’ standards that are unacceptable because those standards themselves are inherently discriminatory to certain sub-groups (usually women and children) within that cultural group itself. For example, in Atma Ram v State,[113] the accused killed his wife because she refused to have sex with him and swore at him. In taking into account his cultural background, the court said:

It is important to emphasise that the impact of provocation on human frailty is to be judged in the context of the social position and environments of the person concerned. The restraint which is generally shown by sophisticated persons used to modern living is hardly to be expected in the case of a villager who still regards a wife as his personal property and chattel amenable at all times to his desire for sexual intercourse.[114]

Provocation and Multiculturalism – Moving Forward

It is important to recall that provocation is only an excuse and does not operate as a complete defence. Therefore, insisting on a standard that may not fairly represent that of the cultural group of the accused may be unjust. Where provocation operates as a complete defence, in the sense of a justification, the more stringent approach may be necessary, as seen in the Australian assault case, mentioned earlier.[115] The ordinary or reasonable person should not be determined solely by the dominant culture. The New South Wales Law Reform Commission has considered three options for the objective test with respect to self-control: expand the ordinary person test to permit consideration of culture and/or gender; abolish the ordinary person test in favour of a purely subjective test; or replace the ordinary person test with a subjective test together with the application of community standards. It favoured the last option on the ground that

it avoids the complexities of the ordinary person test while still allowing the jury to make a value judgment about whether or not a particular accused should be convicted of murder or manslaughter, in light of the particular mitigating circumstances of the provocation and the accused’s blameworthiness.[116]

This is a sensible approach that places the focus on what is reasonable according to community standards. Full consideration of all relevant factors, including culture, should result in a sensitive and just determination of criminal culpability.

Conclusion

We live in an increasingly multicultural world, which calls for more cultural accommodation by legislators, regulators and policy makers. Criminal law, with penal sanctions that deprive or diminish an individual’s life or liberty, is a prime candidate for greater acculturation to this new world. Whether this should be achieved by developing a separate cultural defence for certain cultural groups or by refining existing criminal law doctrines is a matter that merits ongoing debate. The view expressed in this chapter is that the latter strategy is preferable for the reasons given. Nevertheless, focusing the debate on the cultural defence compels legislators and courts to confront the issue and be more receptive to cultural concerns, as the feminist debate has shown.

While the battered woman syndrome problem did not result in a special ‘woman’s defence’ (cf cultural defence) for abused women who reacted violently, it did catalyse reform of existing criminal law doctrine by internalising women’s perspectives.[117] It also compelled judges, prosecutors and policy makers to accept that there was an alternative, and equally legitimate, paradigm of standards and behaviour that deserved to be reflected in the law and legal process. Instead of treating abused women as ‘different’ and requiring ‘special’ treatment, their experience and perspectives were internalised into the law; fairness operated not as a matter of exception but as part of the general rule.[118]

Similarly, cultural minorities risk being treated unfairly as their experiences and perspectives are not always reflected in the law. Rather than entrenching a ‘them and us’ dichotomy, it is suggested that the fundamental principles of criminal culpability be refined in order to accommodate this diversity of norms and values. The theory of justification and excuse provides a rational strategy for maintaining the balance between individualising criminal justice while preserving a uniform criminal law that applies equally to all its citizens. Cultural accommodation has to be a two-way street: minority cultures need to recognise that they have an obligation to respect and obey the general laws of the nation state to which they belong whether by birth or choice; the majority have to accept that a global human culture is slowly evolving, which will be shaped by a diversity of norms.

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( LLB (Hons), PhD (Australian National University); Associate Professor and Director, International Programmes, Faculty of Law, National University of Singapore. Thanks to my research assistant, Khadijah Sim, for her helpful work at the early research and final editing stages.
[1] Some of the classic examples include People v Kimura (case of the Japanese mother who drowned her children in a ritual parent-child suicide); People v Moua (case of the Hmong man who abducted a woman in accordance with traditional Hmong ‘marriage by capture’); People v Chen (case of the Chinese man who murdered his adulterous wife). An extensive collection and analysis of ‘cultural defence’ cases may be found in Renteln AD, The Cultural Defense (New York, Oxford University Press, 2004). Academic commentators soon joined the debate and by the 1990s, there was an established body of literature on the subject. See especially, Renteln, AD, ‘A Justification of the Cultural Defense as Partial Excuse’ (1993) 2 Southern California Review of Law & Women’s Studies 437; Volpp, L, ‘(Mis)identifying Culture: Asian Women and the “Cultural Defence”’ (1994) 17 Harvard Women’s Law Journal 57; Coleman, DL, ‘Individualizing Justice through Multiculturalism: The Liberal’s Dilemma’ (1996) 96 Columbia Law Review 1093; Sacks, VL, ‘An Indefensible Defense: On the Misuse of Culture in Criminal Law’ (1996) 13 Arizona Journal of International and Comparative Law 523; Fischer, M, ‘The Human Rights Implications of a “Cultural Defense”’ (1998) 6 Southern California Interdisciplinary Law Journal 663; Broeck, JV, ‘Cultural Defence and Culturally Motivated Crimes (Cultural Offences)’ (2001) 9 European Journal of Crime, Criminal Law and Criminal Justice 1.
[2] Volpp, L, ‘“Blaming Culture for Bad Behaviour’ (2000) 12 Yale Journal of Law and Human Rights 89 at 89-90.
[3] Cf De Pasquale, S, ‘Provocation and the Homosexual Advance Defence: The Deployment of Culture as a Defence Strategy’ (1999) 26 Melbourne University Law Review 110 who argues that provocation itself is a cultural defence deployed by the majority culture.
[4] Maynard, R, ‘Racial Anger on the Brew’ The Straits Times, 13 December 2005, p 18.
[5] Kearnley, S and Overington, C, ‘Digging in at the Beach’ The Australian, 14 December 2005 (available online, http://www.theaustralian.news.com.au/common/story_page/0,5744,17563468%255E601,00.html, last accessed, 14 December 2005).
[6] See below, text at nn 42-48.
[7] The concepts ‘reasonable person’ and ‘ordinary person’ are used interchangeably here because the focus is on the objective dimensions of the test. The two concepts are in theory distinguishable, as ‘reasonable’ connotes a higher standard than ‘ordinariness’.
[8] See Feinberg, J, ‘The Classic Debate’ in Feinberg, J & Coleman, J, Philosophy of Law (Belmont, CA, Wadsworth, 6th ed, 2000) 727.
[9] Fletcher, GP, Rethinking Criminal Law (Boston, Little, Brown & Co, 1978).
[10] A recent, although not directly relevant, example of this ‘prosecute first, think later’ mentality is seen in the English case of R v Goldstein [2005] UKHL 63. Goldstein was an ultra-orthodox Jewish supplier of kosher foods in Manchester, who owed his business friend, also a Jew, some money, payment of which was overdue. Goldstein sent his friend a cheque and, as a joke, included in it some salt to acknowledge the age of the debt, as salt was used as a preservative in kosher foods. The envelope never reached the intended recipient, as some of the salt leaked out at the post office during sorting. This caused a scare, as the postal workers feared the envelope contained anthrax. The post office was evacuated, resulting in some delay of some of the mail for that day. Goldstein was charged and convicted of public nuisance even though he never intended any harm and his friend gave evidence that had he received the envelope he would have understood the joke in its context. Goldstein’s conviction was upheld on appeal to the Court of Appeal but, happily for him and for common sense, the House of Lords quashed the conviction. The fact that such a prosecution was even commenced is a cause for concern. One can imagine situations where particular cultural practices of some communities may put the individual on a collision course with the law.
[11] Detention without trial, denial of access to legal representation and intrusive surveillance are increasingly being sanctioned by legislation and practised by authorities in traditionally liberal countries including the United States of America, the United Kingdom and Australia.
[12] See for example, Woolf, M, “Anti-terror Police Told to Target Asians” The Independent Online Edition, 13 September 2005 (available online, http://news.independent.co.uk/uk/politics/article312202.ece, law accessed, 3 January 2006).
[13] Fletcher, GP, Rethinking Criminal Law (Boston, Little, Brown & Co, 1978) at xix.
[14] Dworkin, R, Taking Rights Seriously (London, Duckworth, 4th ed, 1978); Gross, H, A Theory of Criminal Justice (New York, Oxford University Press, 1979); Sadurski, W, Giving Desert its Due – Social Justice and Legal Theory (Boston, D Reidel Pub Co, 1985); Von Hirsch, A, Past or Future Crimes (1985); Husak, D, Philosophy of Criminal Law (Totowa NJ, Rowman & Littlefield, 1987)
[15] See, for example, Renteln AD, The Cultural Defense (New York, Oxford University Press, 2004) at 442.
[16] Hart, HLA Punishment and Responsibility (New York , Oxford University Press, 1968) at 4-9.
[17] In Groundwork of the Metaphysic of Morals (1785) Kant stated, “Act so that you treat humanity, whether in your own person or in that of another, always as an end and never as a means only.” (cited in Rachels, J, The Elements of Moral Philosophy (New York, McGraw-Hill, 2003, 4th edn) at 131. See generally, Kant, I, Groundwork of the Metaphysic of Morals (translated and analysed by Paton, HJ, New York: Harper & Row, 1964).
[18] See Braithwaite, J, Crime, Shame and Reintegration (New York, Cambridge University Press, 1989).
[19] Tyler, T, Why People Obey the Law (New Haven, Yale University Press, 1990).
[20] See, Bagaric, M, ‘In Defence of a Utilitarian Theory of Punishment: Punishing the Innocent and the Compatibility of Utilitarianism’ (1999) 24 Australian Journal of Legal Philosophy 95 at 99.
[21] Hart, HLA Punishment and Responsibility (New York, Oxford University Press, 1968) at 3: ‘What we should look for are answers to a number of different questions such as: What justifies the general practice of punishment? To whom may punishment be applied? How severely may we punish?’
[22] The quantum of punishment is determined not only by the accused’s moral blameworthiness but also by the harm that is caused. Take for example, three accused who intend to kill their respective victims. One succeeds, the other causes grievous injury and the third causes minor injury. While the moral blameworthiness of each is the same, the harm is different and consequently the punishment is different; the first accused should be punished most severely and the third should receive the least punishment.
[23] Hart, HLA, The Concept of Law (Oxford, Clarendon Press, 1961) at 173-174.
[24] See, Broeck, JV, ‘Cultural Defence and Culturally Motivated Crimes (Cultural Offences)’ (2001) 9 European Journal of Crime, Criminal Law and Criminal Justice 1 who argues that common lawyers tend to focus on the cultural defence while continental lawyers tend to focus on the cultural offence.
[25] Ibid at 5.
[26] See Thio Li-ann, ‘“Recent Constitutional Developments: Of Shadows and Whips, Race, Rifts and Rights, Terror and Tudungs, Women and Wrongs’” [2002] Singapore Journal of Legal Studies 328 at 355-357 and references therein.
[27] For example, traditional hunting and fishing practices by aboriginal groups. See discussion below at text to nn 29-39.
[28] Some illustrations are provided in Broeck, JV, ‘Cultural Defence and Culturally Motivated Crimes (Cultural Offences)’ (2001) 9 European Journal of Crime, Criminal Law and Criminal Justice 1 at 6. A striking example of the imposition of colonial cultural values is the view expressed by the English drafters of the Indian Penal Code who were of the opinion that Englishmen were far more robust and aggressive than their Indian counterparts, and instead of drafting the laws on self-defence to reflect the ‘Indian culture’ they took it upon themselves to use the English standard of manliness as the appropriate baseline: ‘It may be thought that we have allowed too great a latitude to the exercise of this right; and we are ourselves of opinion that if we had been framing laws for a bold and high-spirited people, accustomed to take the law into their own hands, and to go beyond the line of moderation in repelling injury, it would have been fit to provide additional restrictions. In this country the danger is on the other side; the people are too little disposed to help themselves; the patience with which they submit to the cruel depredations of gang-robbers and to trespass and mischief committed in the most outrageous manner by bands of ruffians, is one of the most remarkable, and at the same time one of the most discouraging symptoms which the state of society of India presents to us. Under these circumstances we are desirous rather to rouse and encourage a manly spirit among the people than to multiply restrictions on the exercise of the right of self-defence.’ Macaulay, The Works of Lord Macaulay (1898) vol II at 55-56.
[29] (1987) 163 CLR 561.
[30] One of the general principles of criminal law, derived from an ancient maxim, ignorantia juris non excusat, is that ignorance or mistake of law is not a defence. This is a rule that operates especially harshly on recent immigrants and disadvantaged groups. Interestingly, the only jurisdiction which abolished this rule is South Africa (S v de Blom 1977 (3) SA 513 (A)), which takes a liberal approach to the defence of mistake, quite possible due to the fact that for a long time, the vast majority of South Africans were blacks living under white rule, with little access to the law and an enormous gulf in cultural norms and practices.
[31] This was permissible under the Criminal Code s657A, which allowed a court to impose nominal punishment or grant an absolute discharge if the court were of the view that it would be unjust to impose punishment.
[32] (1987) 163 CLR 561 at 564-565.
[33] (1992) 175 CLR 1.
[34] Terra nullius (land belonging to nobody) was a concept developed in the seventeenth century, which distinguished territories that had inhabitants and were conquered from territories that were empty and settled by the English. In the latter, the laws of England were automatically transplanted to the new colony: Craw v Ramsay (1670) Vaughan 274; 124 ER 1072; Blankard v Galdy (1693) 2 Salk 411. See generally, Castles, AC, An Australian Legal History (Sydney, The Law Book Company, 1982) at 7-14. The British application of terra nullius to Australia was a fiction, as aboriginal communities had long inhabited the island.
[35] (1999) 201 CLR 351.
[36] Cf the earlier New South Wales decision of Mason v Tritton [1996] 1 AILR 19 where the court, by 2-1 majority, rejected the native title right to fishing. Kirby J, in dissent, held that such a right did exist.
[37] See Fraser, B, ‘Aboriginal Fishing Strategy in Western Australia’ (2004) Indigenous Law Bulletin 5; Hawkins, S, ‘Caught, Hook, Line and Sinker: Summary of the AJAC Report into Aboriginal Fishing Rights in NSW’ (2004) ILJ 4. Two recommendations that are particularly important include making compulsory cultural awareness initiatives for employees involved in the management of fisheries and creating a separate class of fishing activity for customary fishing.
[38] Australian Law Reform Commission Report: Multiculturalism and the Law, ALRC 57 (1992) [8.11]; Australian Law Reform Commission Report: The Recognition of Aboriginal Customary Law, ALRC 31 (1986)
[39] Australian Law Reform Commission Report: Multiculturalism and the Law, ALRC 57 (1992) [8.14]-[8.15]; Australian Law Reform Commission Report: The Recognition of Aboriginal Customary Law, ALRC 31 (1986) [5.17]. Another inquiry is currently is current underway on sentencing in Australia: Australian Law Reform Commission: Sentencing of Federal Offenders, ALRC Issues Paper 29 (2005).
[40] Coleman, DL, ‘Individualizing Justice through Multiculturalism: The Liberal’s Dilemma’ (1996) 96 Columbia Law Review 1093 at 1098. Cf McHugh J’s statement for a contrary view, below text at n 93.
[41] Although written in a slightly different context, the view expressed here is illuminating: ‘When my parochialism is threatened, then I am wholly, radically parochial: a Serb, a Pole, a Jew and nothing else. … Under the conditions of security I will acquire a more complex identity than the idea of tribalism suggests. I will identify myself with more than one tribe: I will be an American, a Jew, an Easterner, an intellectual, a professor.’ Walzer, M, ‘New Tribalism’ (Spring 1992) Dissent 164 at 171.
[42] One problem that has received considerable attention is honour killing of women. Amnesty International, Pakistan, Violence Against Women in the Name of Honour, AI Index: ASA 33/17/99; Amnesty International, Pakistan, Insufficient Protection of Women, AI Index ASA 33/006/2002. The Government of Pakistan has condemned honour killings and vowed to treat it as murder.
[43] Since these matters will be addressed by other participants at the workshop, I will refrain from elaborating. Some of my views on this can be found in Amirthalingam, K, ‘Women’s Rights, International Norms and Domestic Violence: Asian Perspectives’ (2005) 27 Human Rights Quarterly 683; Amirthalingam, K, ‘Negotiating Law, Culture and Justice’ (2004) The Drawing Board 2 July (http://www.econ.usyd.edu.au/drawingboard/digest/0407/amirthalingam.html); See also, Mullally, S, ‘Feminism and Multicultural Dilemmas in India: Revisiting the Shah Bano Case’ (2004) 24 Oxford Journal of Legal Studies 671.
[44] Visweswaran, K, ‘Family in the US India Diaspora’ South Asian Women’s Forum, 19 March 2001 [available online, http://www.sawf.org/newedit/edit03192001/womensociety.asp, last accessed, 4 January 2006).
[45] Lord Bingham of Cornhill CJ in R v Campbell [1997] 1 CrAppR 199, at 207, said: ‘It is in recognition of human frailty that the scope of the defence of provocation has, to a very limited extent, been enlarged.’
[46] See Yeo, S, Criminal Defences in Malaysia and Singapore (Malaysia: LexisNexis Malayan Law Journal, 2005) 234.
[47] See generally, Walker, L, The Battered Woman Syndrom (New York: Springer Pub Co, 1984); Sheehy, E, Stubbs, J & Tolmie, J, ‘Defending Battered Women on Trial: The Battered Woman Syndrome and its Limitations’ (1992) 16 Criminal Law Journal 369;
[48] See for example, State of Washington v Wanrow, 88 Wash 2d 221; 559 P 2d 548 (1977); R v Lavallee [1990] 1 SCR 852; R v Kontinnen (Unreported, Supreme Court of South Australia, Legoe J, 30 March 1992).
[49] See Osland v R (1998) 197 CLR 316 per Kirby J: ‘In her reasons in [R v Malott (1998) 155 DLR (4th) 513], L’Heureux-Dubé J expressly stated, correctly in my view, that BWS was not “a legal defence in itself”. It seems unthinkable that the Supreme Court of Canada, if it had been minded to create an entirely new ‘defence’ or ground of exculpation (assuming that to be possible), would not have done so in language more explicit and with more elaborate reasoning. What that Court, and courts in other jurisdictions have been at pains to emphasise is that any expert evidence of BWS, or an analogous condition, must be related to the facts of the particular case. Specifically, whilst such expert evidence could not be tendered to usurp the decisions reserved by law to the jury, it might be offered as relevant to questions such as (1) why a person subjected to prolonged and repeated abuse would remain in such a relationship; (2) the nature and extent of the violence that may exist in such a relationship before producing a response; (3) the accused's ability, in such a relationship, to perceive danger from the abuser; and (4) whether, in the evidence, the particular accused believed on reasonable grounds that there was no other way to preserve herself or himself from death or grievous bodily harm than by resorting to the conduct giving rise to the charge. These considerations, accepted in Malott, are equally applicable in Australia where expert evidence is received to describe common features of the conduct of people in abusive relationships and where provocation or self-defence are put in issue.’ (footnotes omitted)
[50] Stubbs, J & Tolmie, J, ‘Falling Short of the Challenge? A Comparative Assessment of the Australian Use of Expert Evidence on the Battered Woman Syndrome’ (1999) 23 Melbourne University Law Review 709 at 739.
[51] Clarkson, CMV & Keating, HM, Criminal Law: Text and Materials (London, Sweet & Maxwell, 5th ed, 2003) at 271.
[52] See, for example, Robinson, PH, ‘A Theory of Justification: Societal Harm as a Prerequisite for Criminal Liability’ (1975) 23 UCLA Law Review 266; Fletcher, GP, ‘The Right Deed for the Wrong Reason: A Reply to Mr Robinson’ (1975) 23 UCLA Law Review 293; Fletcher, GP, Rethinking Criminal Law (Boston, Little, Brown & Co, 1978); Dressler, J, ‘New Thoughts About the Concept of Justification in the Criminal Law: A Critique of Fletcher’s Thinking and Rethinking’ (1984) 32 UCLA Law Review 61; Greenawalt, K, ‘The Perplexing Borders of Justification and Excuse’ (1984) 84 Columbia Law Review 1897; Horowitz, DL ‘Justification and Excuse in the Program of the Criminal Law’ (1986) 49 Law and Contemporary Problems 109; Dressler, J, ‘Justifications and Excuses: A Brief Overview of the Concepts in the Literature’ (1987) 33 Wayne Law Review 1155; Husak, DN, Philosophy Of Criminal Law (Totowa, NJ, Rowman & Littlefield, 1987); Alexander, LA, ‘Justification and Innocent Aggressors’ (1987) 33 Wayne Law Review 1177; Kadish, S, ‘Excusing Crime’ (1987) 75 California Law Review 257; Corrado, ML, Justification and Excuse in Criminal Law: A Collection of Essays (New York, Garland Publishing, 1994); Horder, J, ‘Criminal Law and Legal Positivism’ (2002) 8 Legal Theory 221; Berman, M, ‘Justification and Excuse, Law and Morality’ (2003) 53 Duke Law Journal 1.
[53] Depending on the jurisdiction, the mistake may or may not have to be reasonable. Under English and Australian criminal law, where the mistake may negative mens rea, it need not be reasonable. See Bronitt, S & McSherry, B, Principles of Criminal Law (2001) 337; Under the Penal Codes of India, Singapore and Malaysia, the mistake has to be in good faith: Penal Code s 79.
[54] See Fletcher, GP, Rethinking Criminal Law (Boston, Little, Brown & Co, 1978) at 802-807.
[55] See for example, Hart, HLA Punishment and Responsibility (New York , Oxford University Press, 1968) at 22-24.
[56] See, for example, Horowitz, DL ‘Justification and Excuse in the Program of the Criminal Law’ (1986) 49 Law and Contemporary Problems 109.
[57] See, for example, Renteln AD, The Cultural Defense (New York, Oxford University Press, 2004).
[58] See above n 40.
[59] ‘Thus in the field of excuses, precedents have an inverse effect on the excusability of similar conduct in the future. … This inverse correlation brings out the radical difference between claims of justification, which do create precedents that others may rely on in the future, and claims of excuse, which do not. Decisions on justifying circumstances modify the applicable legal norm. Decision on excuses, in contrast, leave the norm intact, but irreversibly modify the factual background of succeeding claims of excuse.’ Fletcher, GP, Rethinking Criminal Law (Boston: Little, Brown & Co, 1978) at 812.
[60] Kadish, SH ‘Excusing Crime’ (1987) 75 California Law Review 257 at 264.
[61] The cornerstone of the tort of negligence is the reasonable person. One of the earliest references to the objective standard is found in Vanguan v Menlove (1837) 3 Benj NC 468 at 475 per Tindall CJ: ‘Instead, therefore, of saying that the liability for negligence should be co-extensive with the judgment of each individual, which would be as variable as the length of the foot of each individual, we ought rather to adhere to the rule which requires in all cases a regard to caution such as a man of ordinary prudence would observe.’ Most criminal law defences, including provocation, self-defence, duress, necessity and to an extent, mistake, rely on some version of an objective test embodied in the reasonable or ordinary person.
[62] The phrase was first used in a negligence case to refer to the standard of care in Hall v Brooklands Auto Racing Club [1933] 1 KB 205 at 224 per Greer LJ. The coining of the phrase is credited to Lord Bowen, as noted in McQuire v Western Morning New Company Ltd [1903] 2 KB 100 at 109 per Collins MR.
[63] See, for recent perspectives on the reasonable person, Moran, M, Rethinking the Reasonable Person: An Egalitarian Reconstruction of the Objective Standard (2003); Lee, C, Murder and the Reasonable Man (2003); Saltman, M, The Demise of the Rasonable Man: A Cross-Cultural Study of a Legal Concept (1991).
[64] ‘If an English judge holds that the defendant has not used reasonable care, he means that ‘the defendant has not used as much care as I hold that he ought.’ The ‘reasonable man’ is not the man activated by reason, or most men, or the usual or average man, but the man whom the judge takes as a standard.’ Quoted in Diamond, AS, Review of The Law of Primitive Men – A Study in Comparative Legal Dynamics by Hoebel, EA and The Judicial Process among the Barotse of Northern Rhodesia by M Gluckman, M (1956) International and Comparative Law Quarterly 624 at 627-628.
[65] Moran, M, Rethinking the Reasonable Person: An Egalitarian Reconstruction of the Objective Standard (Oxford, Oxford University Press, 2003) at 301-307. When the phrase "reasonable man" (coming from 19th century cases such as R v Welsh (1869) 11 Cox CC 336) is used … the common lawyer immediately tries to visualise and define some physical human being with identified characteristics (apparently both reasonable and unreasonable) whereas what the phrase is doing is identifying a concept, a standard of self-control.’ R v Smith [2001] 1 AC 146 at 188 per Lord Hobhouse of Woodborough.
[66] Delhi Transport Corporation – local bus service in New Delhi, India.
[67] Mass Rapid Transportation – the train system in Singapore; Yishun being a working class suburb.
[68] Three-wheeled mini taxi in a Thai province.
[69] See R v Smith [2001] 1 AC 146 at 172 per Lord Hoffmann, at 188 per Lord Hobhouse of Woodborough.
[70] Lee, C, Murder and the Reasonable Man (New York, New York University Press, 2003) at 236.
[71] Ibid.
[72] Provocation is also a defence to certain non non-fatal offences under the Indian Penal Code and some Australian jurisdictions: Western Australia (Criminal Code s 246); Queensland (Criminal Code 1899 s 269); Northern Territory (Criminal Code Act 1983 s 34); Indian Penal Code ss334, 335 (reduced penalties for assault caused by provocation)
[73] See, Macaulay & Other Indian Law Commisioners, A Penal Code Prepared by the Indian Law Commissioners (Union, NJ, The Lawbook Exchange Ltd, 2002) Note M at 107-108. See also, R v Smith (2001) 1 AC 146 at 159-161 per Lord Hoffmann. See generally, Horder, J, Provocation and Responsibility (Oxford, Clarendon Press, New York, Oxford University Press, 1992).
[74] Jurisdictions that have a mandatory death penalty for murder include Singapore, Malaysia and The Philippines. The Caribbean countries of Trinidad & Tobago and Jamaica had mandatory death penalties for murder until this was ruled unconstitutional by the Privy Council. Reyes v The Queen [2002] 2 AC 235; cf Boyce v R (Barbados) [2004] UKPC 32.
[75] This was recently recognized by the House of Lords in R v Smith (2001) 1 AC 146. See the strong criticism of this case in Smith, JC, ‘Case & Comment: Homicide – R v Smith’ (2000) Criminal Law Review 1005.
[76] The argument was made by Ashworth, A, ‘The Doctrine of Provocation’ (1976) 35 Cambridge Law Journal 292 at 300 and subsequently adopted by the House of Lords. DPP v Camplin [1978] AC 705; R v Morhall [1996] 1 AC 90; Luc Thiet Thuan v R [1997] AC 131 (PC). The earlier approach was to insist on a purely objective test: Bedder v DPP [1954] 1 WLR 1119. For Australia, see Masciantonio v R (1995) 183 CLR 58; Stingel v R (1990) 171 CLR 312.
[77] Stingel v R (1990) 171 CLR 312.
[78] Similar sentiments are seen in the civil law of torts, where the reasonable person standard is modified to take into account the age of the defendant: Mullin v Richards [1998] 1 WLR 1304; McHale v Watson (1966) 115 CLR 199.
[79] The distinction is far too subtle to be applied in practice. To consider culture in determining gravity but to exclude it in assessing self-control requires extraordinary mental agility on the part of the judge or jury.
[80] [1951-1976] NTJ 317. See also R v MacDonald [1953] NTJ 186; R v Patipatu [1951-1976] NTJ 18; R v Jimmy BalirBalir [1951-1976] NTJ 633; R v Nelson [1951-1976] NTJ 327.
[81] [1951-1976] NTJ 317 at 322.
[82] ‘In the exercise of its criminal jurisdiction the Supreme Court of the Northern Territory concerns itself with many aboriginal people. Of these, a number live under tribal culture and tradition and come from areas remote from the court. The court has for many years now considered it should, if practicable, inform itself of the attitude of the aboriginal communities involved, not only on questions of payback and community attitudes to the crime, but at times to better inform itself as to the significance of words, gestures or situations which may give rise to sudden violence or which may explain situations which are otherwise incomprehensible. The information maybe made available to the court in a somewhat informal and hearsay style. This is unavoidable as it will often depend on consultation with aboriginal communities in remote areas.’ Re: The Queen and: William Davey No NTG 14 of 1980 (1980) 50 FLR 57, at 60-61.
[83] Stingel v R (1990) 171 CLR 312.
[84] R v Mungatopi (1991) 57 A Crim R 341; Jabarula v Poore (1990) 68 NTR 25. But, cf R v Thorpe [1999] VSCA 172 where an Aboriginal accused was charged with murder and the Court of Appeal applied the Masciantonio test, although emphasizing the importance of the relevance of the accused’s culture to the gravity of provocation.
[85] Western Australia: Criminal Code s 246; Queensland: Criminal Code 1899 s 269; Northern Territory: Criminal Code Act s 34.
[86] Verhoeven v The Queen (1998) 101 Australian Criminal Reports 24 at 36 per Wheeler J.
[87] [1983] 1 VR 460.
[88] R v Croft [1981] 1 NSWLR 126; R v Dutton (1979) 21 SASR 356. See also, Moffa v R (1977) 138 CLR 601; R v Webb (1977) 16 SASR 309; R v Romano (1984) 36 SASR 283; R v Saliba (1986) 10 Criminal Law Journal 420; R v Shea (1988) 33 Australian Criminal Reports 394; R v Voukelatos [1990] VR 1.
[89] [1983] 1 VR 460, at 466-467.
[90] (1990) 171 CLR 312.
[91] See also, Green v R (1997) 191 CLR 334; Masciantonio v R (1995) 183 CLR 58.
[92] (1995) 183 CLR 58.
[93] Ibid at 74.
[94] The fear of negative stereotypes compelled one academic to change his view from supporting the use of cultural evidence to modify the ordinary person to restricting such evidence to the gravity of provocation only: Yeo, S, ‘Sex, Ethnicity, Power of Self-Control and Provocation’ (1996) 18 Sydney Law Review 304 at 316: ‘Doubtless, the judges who delivered these decisions [concerning Aboriginal offenders] had fairness and justice as their paramount aims. However their decisions had the effect of promoting a greater evil, namely a negative stereotype of Aborigines being at a lower order of the evolutionary scale than other ethnic groups.’ Earlier, Yeo had argued for the inclusion of culture in the objective test: Yeo, S, ‘Power of Self-Control in Provocation and Automatism’ (1992) 14 Sydney Law Review 3 at 12-13. See also, Leader-Elliott, I, ‘Sex, Race and Provocation: In Defence of Stingel’ (1996) 20 Criminal Law Journal 72.
[95] R v Kumar [2002] VSCA 139 is a good illustration of an opportunistic attempt to introduce cultural factors in a desperate bid to bolster the provocation defence. The facts were that the accused, a twenty year old Fiji-Indian, living in Australia, killed his estranged wife, a thirty six year old Fiji-Indian some time after the couple separated, largely due to ongoing domestic violence inflicted on the deceased by the accused. The deceased moved from Ipswich, Queensland to Melbourne, Victoria to be away from the accused. He went looking for her in Melbourne and spent a few months there trying to reconcile the relationship. On the day of the killing, the accused went to the deceased’s house but she refused to let him and shouted at him, calling him a bastard and insulted his parents for belonging to a low caste of Hindus. The accused broke into the house and stabbed her. Defence counsel tried to argue that the accused’s culture was relevant to provocation based solely on the evidence given be a Hindi language translator who simply said that the Hindi words were offensive and in her opinion would have been hurtful to a Hindu. The Court of Appeal correctly agreed with the trial judge that provocation was not open on the facts.
[96] An appeal by the accused in R v Mankotia [2001] NSWCCA 52 (unreported judgment, 28 February 2001) to the New South Wales Court of Criminal Appeal to apply McHugh J’s approach in Masciantonio was rejected.
[97] (1997) 191 CLR 334.
[98] R v Yasso [2004] VSCA 127;
[99] R v Yasso [2005] VSC 75.
[100] [1998] 2 VR 19.
[101] [2000] 1 VR 429.
[102] R v Abebe [2000] VSC 562.
[103] [2001] VSCA 149.
[104] Ibid at para [147].
[105] Leonboyer v The Queen [2005] HCATrans 306 (available online at http://www.austlii.edu.au/cgi-bin/disp.pl/au/other/HCATrans/2005/306.html?query=%5e+leonboyer (last accessed, 13 December 2005).
[106] [1962] AIR SC 605.
[107] Nanavati was eventually pardoned. The case attracted unprecedented media attention in India and even resulted in a Bollywood movie, Yeh raste hain pyar ke (These are the paths of love), starring the late Sunil Dutt who recently passed away (25 May 2005) after serving as India’s Minister for Sports. In true Bollywood style, the story was reworked so that the wife was depicted as have been seduced by the deceased and Nanavati’s killing was treated as accidental.
[108] Ibid at 629-630 per Subba Rao J.
[109] ‘The Australian legal system is a product of the society in which it has evolved over the past two centuries and, to a lesser extent, the society (England) from which it was transplanted 200 years ago. Since European settlement, the non-Aboriginal society has been predominantly Anglo-Celtic and has largely excluded the original inhabitants and ignored their cultures, at least until recently. As a result of the post-war immigration of large numbers of people from continental Europe and later from the Middle East, Asia and South America, the ethnic composition of Australian society has dramatically and irrevocably changed. While cultural diversity is now an accepted part of Australian society, the consequences of this for the legal system have not yet been fully considered.’ Australian Law Reform Commission Report: Multiculturalism and the Law, ALRC 57 (1992) [1.16].
[110] (1939) 40 Criminal Law Journal 778.
[111] A ‘booja’ was the showing of an outwardly turned palm of the left hand and is considered to be one of the most insulting gestures according to Baluch custom.
[112] (1939) 40 Criminal Law Journal 778 at 780.
[113] (1967) Criminal Law Journal 1697.
[114] Ibid at 1698.
[115] Verhoeven & Ors v Ninyette & Anor [1998] WASCA 73.
[116] New South Wales Law Reform Commission, Partial Defences to Murder: Provocation and Infanticide, [1997] NSWLR Report 83, at [2.80].
[117] For example, the Government of New South Wales, Australia established a Task Force on Domestic Violence in 1981, which made several recommendations for law reform. Among the reforms that were adopted were changes to the law of provocation to give women a fairer opportunity at pleading the defence. See Brown, D, et al, Criminal Law: Materials and Commentary on Criminal Law and Process of New South Wales (Sydney, The Federation Press, 1990) at 725.
[118] For a skeptical reflection on this view, see Stubbs, J & Tolmie, J, ‘Falling Short of the Challenge? A Comparative Assessment of the Australian Use of Expert Evidence on the Battered Woman Syndrome’ (1999) 23 Melbourne University Law Review 709.