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 Provocation


In his nine years on the Northern Territory Supreme Court bench, Kriewaldt heard numerous cases involving instances of unlawful killing arising from an altercation between two Aboriginal men, often under the influence of alcohol. The judge frequently directed juries to consider the influence of provocation as a partial defence to murder, and furthermore, to consider the impact of racial and cultural factors.

Kriewaldt assumed that Aboriginal Defendants, in their current state of assimilation and civilisation, were more likely than non-Aboriginal defendants to retaliate with violence and were slower to ‘cool down’. In his summing up to juries, he noted that the response of the Aboriginal person to the provocative act should be measured against a standard he sometimes referred to as ‘the ordinary Aboriginal person’.

This judicial approach was set against an ideological backdrop of Kriewaldt’s support for the 1950s assimilation policy, and his desire to encourage the ‘civilisation’ of Aboriginal people so that they could be assimilated into white society. The judge interpreted Aboriginal people’s perceived inability to restrain violent responses as resulting from a lack of civilisation, and that this created a disadvantage for Aboriginal defendants. To ameliorate this disadvantage, he directed that there be a shift in the standards of behaviour expected of Aboriginal people whilst they were undergoing assimilation. For Kriewaldt the advantage of this approach was that it avoided the harsh penalties associated with a murder conviction, leaving the way open for a guilty verdict of manslaughter and the imposition of a penalty, which could be applied flexibly to discourage uncivilised behaviours.

While Kriewaldt intended this to lead to positive outcomes for Aboriginal defendants, his approach raises fundamental questions, such as how we conceive of and understand the ‘ordinary Aboriginal person’. How do we avoid stereotypical images of Aboriginal identity, in the search for cultural authenticity? For an analyses of this and further problems : click on the links in the top right hand box to read on.

 Judicial comment

“I see no objection to a jury taking the view that a white person will recover from the effect of provocation more quickly than an Aboriginal. I think it is right in law for a jury to say, from their knowledge of Aboriginals, that whereas a white man may have perhaps have cooled down, an Aboriginal would not.”
Kriewaldt J in Balir Balir (1959)

“you may adopt a lesser standard as amounting to provocation where a native is charged with murder.”
Kriewaldt J in MacDonald (1953)

Read On
Heather Douglas, ‘Assimilation and Authenticity: The ‘Ordinary Aboriginal Person’ and the Provocation Defence’:
abstract | full text

Heather Douglas, ‘Legal Narratives of Indigenous Existence: Crime, Law and History’:
abstract | full text

Related Cases
R v Balir Balir:   summary | full text
R v MacDonald:   summary | full text
R v Muddarubba:   summary | full text
R v Patipatu:   summary | full text