The accused was born in the Aboriginal colony of Woorabinda in central Queensland, where he spent most of his life. I suggest that the jury be pointed out that the question they must ask themselves is whether the provocation was sufficient to deprive an ordinary Aboriginal person living in an Aboriginal institution of his power of self-control. A representative sample of these Aborigines appeared before the jury and testified. [35] Provocation was developed as a defence in recognition of psychological reactions that might have been triggered by the deceased`s behaviour. The law recognizes that this behaviour may be such that it would cause a « reasonable » or « ordinary » person to lose self-control. Thus, if the defence of provocation is met, the charge of murder can be reduced to manslaughter. As a result, Parliament was prepared to refine the provocation test by introducing a higher level of subjectivity that allowed jurors to consider the characteristics (including culture and ethnicity) of the accused. This important development was anticipated in Australia and has been followed up ever since. In Moffa v. R, decision rendered the year preceding Camplin. Barwick C.J. stated: Therefore, this defence requires conduct that may amount to provocation, that causes the defendant to lose self-control (subjective test) and that would likely have caused an ordinary person to lose self-control (objective test). Subsection 23(5) excludes the consideration of evidence of self-induced intoxication in determining whether the accused acted in response to extreme provocation.

Self-induced intoxication may so far be relevant to determining whether the accused has personally lost self-control, but the deletion of the phrase « in the position of the accused » is intended to render this irrelevant at all stages of the test (see speech at second reading, above, p. 27036). In Stingel v. The Queen (1990) 171 CLR 312, the Court interpreted the term « unlawful » as applying only to an « act » and not to an « insult ». The Court held that requiring an insult to be unlawful before it could constitute provocation would entail unjustified difficulties, in particular in distinguishing a lawful insult from an unlawful insult. She said some Australian jurisdictions are currently pursuing reforms that would better ensure that men who have committed deadly intimate partner violence are held accountable. However, this does not mean that these crimes should be punishable by coercive penalties, as these measures mean men who often use provocation to mitigate their sentences. Similarly, in R. v. Muddarubba in 1956, he refused to apply the English rule (which had been reaffirmed two years earlier by the House of Lords in the Bedder case[33]) that mere words could not constitute provocation. His Honour stated: A lawful act does not constitute provocation for the purposes of this defence.

An unlawful arrest does not necessarily constitute provocation, but may be evidence of provocation for a person who has unlawful knowledge of it. If you are satisfied beyond a doubt that [the accused] did not act in response to [the deceased`s] conduct, the Crown has refuted the provocation and, provided you are unequivocally satisfied of all the elements of the murder I have already mentioned, the appropriate verdict is « guilty of murder. » However, if you are not satisfied that the Crown did this, you must consider the following element of extreme provocation. Johnson`s comments came when he rejected the motion by Warren Francis Rogers, who attempted to argue that « extreme provocation » was a factor when he used a pillow to suffocate his wife of 40 years, Anne Rogers, to death. As he later explained to his son-in-law, Rogers killed her after an argument started because he was upset about a non-sexual relationship she had with another man. At that time, the defence of provocation was used by various parties. Some of the apparently harmless comments and behaviour of the deceased in the presence of the accused may constitute provocation in light of the entire history of their relationship (including cases that did not take place in the presence of the accused): R v. R (1981) 28 SASR 321; Moffa v The Queen (1977) 138 CLR 601-616; R V Peisley (1990) 54 A Crim R 42.