R v Major

In this matter the Court of Appeal had to consider the application of s 270 of the Criminal Code in relation to a charge of manslaughter.  That section provided that it is lawful for a person “to use such force as is reasonably necessary to prevent the repetition of an act or insult of such a nature as to be provocation to the person for an assault, if the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm”.  An initial question for the Court was whether or not the defence under s 270 was available to a charge of manslaughter?  The Court held that, for reasons similar to those which support self-defence under s 271 as a defence to manslaughter, s 270 was also a defence where death has resulted. The next question was whether or not the defence was only available where there was evidence which raised a “reasonable possibility” of the provocative act or insult being repeated?  The Court held that once the defence was raised the Crown had to prove beyond reasonable doubt that on the objective evidence there was no reasonable possibility of the provocative act or insult being repeated.  This does not require that the accused held a reasonable apprehension of the possibility of a repetition of the act or insult.  It was further held that it was not a requirement for the raising of the defence that the act of provocation occur in the sight of the accused for it to occur in the accused’s presence as required by the section.  This case, whilst undoubtedly correct, gives support for those who call for the abolition of provocation as a defence to assault on the basis that it is “fraught with legal, conceptual and practical difficulties” as identified in the New Zealand Law Commission, The Partial Defence of Provocation, Report No 98 (2007) 11.