Accident and mistake in provocation

Abstract

This paper looks at accident and mistake in provocation. Mistaken provocation is where the accused either misunderstands or misinterprets the words or actions of the provoker or makes a mistake about their identity. An accidental killing under provocation occurs where the accused directs their response at the provoker but kills someone else instead. In the UK, it is thought that the defence would be considered on the basis of the facts as the accused believed them to be. In New Zealand a mistake must be reasonable. This paper argues that a fully subjective approach is preferable. The defence already has an objective component and a reasonable interpretation requirement is unnecessary and unduly complex. At least some cases of "accidental" provocation arise when an accused places bystanders at risk when retaliating against a provoker. Depending on the precise state of mind of the accused, there may be oblique intent to kill. Under the Homicide Act 1957 provocation can come from anybody so the killing of a bystander is covered. However, the requirement that the provocation was "enough to make a reasonable man do as [the accused] did" might be relevant: even the severely provoked so-called reasonable man might baulk at indiscriminate violence. New Zealand does not have a proportionality requirement. Provocation must come from the deceased unless the killing was by "accident or mistake". A killing is by accident or mistake if the death of the deceased was not foreseen at all or if it was foreseen but was not desired or was not the goal of the accused. The only killings excluded are those where there was a direct intent to kill the non-provoker. Loss of self-control has a more important role in the UK definition. A person who goes berserk under actual or perceived provocation may rely on the defence whoever they kill. The New Zealand provision gives a lesser role to loss of self-control.