The law of provocation in Australia

How did past social values affect legal outcomes in Australia?

In 1934 an unidentified woman was found dead in Albury, NSW, dressed in silk pyjamas. For ten years she was known only as the ‘Pyjama Girl’.

Her injuries were so horrendous that in the 1939 true-crime film 'The Pyjama Girl Murder Case' (produced by Rupert Kathner, in cooperation with the NSW Police Force) the still-unknown killer was described as a ‘fiend in human form’.

While the police investigation took place the body was kept at Sydney University Medical School, preserved in a bath of formalin.

A crime and a confession

In 1944 the victim was finally identified as 28-year-old Linda Agostini, nee Platt (born Forest Hill, London, England).

Dental analysis - forensic odontology - carried out by police played a crucial role. Errors that had been made in 1934 (when the analysis was made by a local dentist) were corrected by using a more thorough forensic process.

This provided the police with a match to dental records provided by Linda Agostini's dentist.

Linda’s husband, Antonio, was interviewed by NSW police and confessed to killing her, but claimed it was an accident.

He described a struggle, instigated by Linda, which resulted in her accidental shooting, and later explained that her head injuries occurred when he dropped her body down a stairwell.

Crucial evidence and a break through

Police were relying on the forensic evidence provided by dental records to identify the victim.

After 10 years of uncertainty, the evidence was examined again, and errors which had been made in 1934 were corrected.

Linda Agostini's dental charts showing work done by her dentist. Sydney Living Museums

The trial and verdict

Agostini was subsequently extradited to Victoria, as the homicide had taken place in Melbourne and he had then moved the body across the border in an attempt to conceal the crime.

He was charged with murder and his trial was heard in the Victorian Supreme Court in June 1944. Justice Lowe was the presiding judge.

Agostini entered a plea of not guilty to murder. Although his defence requested that his confession be inadmissible, the judge ruled it was admissible.

The trial took eight days and the all-male jury deliberated for under two hours before returning their verdict: they acquitted Agostini of murder, but found him guilty of manslaughter.¹

Despite evidence of horrific violence and medical testimony that the skull fractures had occurred while Linda was alive, it seems the jury sympathised with the ‘fiend’.

As sentencing, Justice Lowe remarked:

"[Antonio Agostini,] you have been found guilty by a jury after a long and painstaking trial of the crime of manslaughter.

In that verdict I think the jury were merciful to you. The jury by that verdict have negatived any intention on your part to kill your wife or to inflict upon her grievous bodily harm.

They have also rejected your account that she was accidentally killed.

My view of the jury’s finding is that they thought that you had been for so long sorely tried by your wife’s conduct and had been at the time you attacked her provoked to the limits of your endurance.

You then attacked her, inflicting dreadful injuries upon her which caused her death. Such conduct constitutes a serious crime."²

He sentenced Agostini to six years' imprisonment with hard labour.

A common perception from students is that Agostini’s sentence was very short.

However, under then Victorian law the penalty could have ranged from a fine, to 15 years’ jail and a fine.³

In arriving at six years, Justice Lowe would have taken into account the time that had elapsed since the crime and Agostini’s otherwise good character.

Had the charge of murder been upheld by the jury, Lowe would have had far greater scope for sentencing, including a sentence of death - which remained as an option until it was abolished in Victoria in 1975.

The defence of provocation

At the time of Agostini’s trial, the law recognised:

"...that man is human and there may be occasions when he is so deeply provoked that reason may fail him and he may lose control … [committing] acts for which it would not be right to hold him fully responsible." ⁴

Another article (from 1935) explained that while provocation could be a complete defence to assault:

"Provocation never entirely excuses the intentional killing of a man but may reduce the crime from murder to manslaughter provided the accused committed the homicide in the heat of his passion before there was time for his passion to cool. In these cases, however, the provocation must be very serious." ⁵

At this time the defence of provocation was used by different parties.

Sometimes women successfully used it as a defence to having killed an abusive husband or father.⁶ Men had also used the defence when charged with murdering another man who had ‘invaded the sanctity’ of their home.⁷

Where did this concept come from?

Provocation as a defence to murder developed as common law in the UK in the 16th and 17th centuries, when the death sentence was mandatory for murder and public brawls were common methods of settling a ‘breach of honour’.

Women were also considered to be the property of their husband, and infidelity was seen as the grossest breach of a man’s property rights. In such a case, an angry retaliation by the husband was expected, to ‘cancel out’ the affront; failure to do so would have been seen as cowardly.⁸

However, by the 19th century the legal framing of the accused’s response had changed.

What had long been accepted as a deliberate act carried out by the accused and justified by provocation came to be seen as an act done by the accused in response to provocation by the victim, that provocation being considered sufficient to cause the accused to suffer a ‘loss of self-control’.

This effectively put the onus of guilt on the victim and acknowledged that passion can unseat reason.

More than just a 'who dunnit'

Students who study the ‘Pyjama Girl Murder’ need to recognise that the killing of Linda Agostini is an example of domestic violence in its most extreme form.

This reality is often obscured by the intrigue, mystery and pervasive notion that a conspiracy exists in regards to the case.

Agostini’s trial and its outcome should also be a focus, because it highlights how the law reflected different societal values and attitudes.

Linda’s death is also not an isolated example of an all-male jury acquitting a partner accused of murder because of alleged provocation.

By taking a broader approach and acknowledging other similar examples from this time, the context in which the crime and trial occured becomes clearer.

Men were overwhelmingly using the defence of provocation to lay the blame of their actions, on their female victim.

Numerous instances can be sourced through the Trove database and three examples are provided here.

They cover the decades between 1933 and 1954; which was when the crime occurred, Agostini’s trial ten years later, and finally the following decade, to see if the law had been reformed. All the cases took place in Victoria.

Case studies

In 1933, Grace Weston was violently killed by her husband, who was incensed by her association with another man. The jury acquitted him of murder, but found him guilty of manslaughter, on the grounds that he had acted under great provocation.

The judge in that case was Justice Lowe (who would preside over Agostini's trial in 1944).

Bound by the jury’s decision, he passed a sentence of eight years, but made his opinion clear in his summation:

...the facts disclose a crime that has created peculiar disgust in the minds of those who had heard the details. The crime was one of atrocity and the jury [has] acted mercifully in not finding Weston guilty of murder.⁹

In July 1944, Jessie Waters was killed by her husband, a soldier, after she returned home from the movies with another man.

Waters stated to police: ‘It looked as though I had lost her, and I made up my mind that if I could not have her, nobody else would’.¹⁰

At his trial he was acquitted of murder by the jury and instead found guilty of manslaughter, because of great provocation.

The judge expressed his opinion of the seriousness of the crime and a desire to hand down a considerably greater sentence. However, bound by the scope of manslaughter, he sentenced Waters to eight years.

In 1954, Justice Lowe presided over another murder trial.

Beryl Jean Baldwin had been violently killed by her husband, who then attempted to disguise her severe injuries by crashing her car. The prosecutor contended that Baldwin had battered Beryl to death; Baldwin’s defence was that Beryl was a ‘tigress’ and that he had killed her in self-defence.

The jury acquitted him of murder, passing a verdict of manslaughter with a strong recommendation for mercy based on provocation.

Justice Lowe’s interpretation of the jury's decision was that they must have accepted that Baldwin’s wife provoked him beyond the limits of his endurance. He once again stated that he thought the jury was being merciful toward the accused.¹¹

The application of the defence of provocation to reduce men’s culpability in violent domestic crimes shows how the law reflected the different values and attitudes held at that time.

In all three cases the victim’s alleged behaviour mitigated, in the jurors’ minds, the obvious and sustained act or acts of violence committed by the accused.

The ‘provocation’ was considered to have caused the accused to lose self-control, thus opening the door for the lesser conviction of manslaughter.

There were legal voices arguing against the tide at the time, defending the rights of the female victims and condemning the actions of men who lashed out violently:

"Throughout this case … everything that could have been said against the woman [has been said]. Whatever frailties she had and whatever weaknesses they were common to thousands and thousands of people in this world and the penalty for such is not violence and death which is what she suffered." ¹²

It is impossible for a man to escape the consequences of such violence [by saying] ‘I must have done it but I don’t remember.

Mr John Flowers, King’s Counsel, prosecuting in a murder trial in Sussex, England, August 1940.

But while sentiment may have changed, the law did not.

Where are we today?

In 2004, sixty years after the Agostini trial, James Ramage was acquitted in the Supreme Court of Victoria of murdering his wife Julie.

He was instead found guilty of manslaughter, based on provocation from the victim.

The case caused public outrage and forced the Victorian government to recognise the inequity that existed in the law. That violent men were still able to take advantage of such defence was deemed abhorrent.

As a result, Victoria repealed provocation as a legal defence for homicide in 2005.

At the launch of the Crimes (Homicide) Bill, the Victorian Attorney-General said:

"This Government will not support a mechanism that, implicitly, blames the victim for a crime - one that has been relied upon by men who kill partners or ex-partners out of jealousy or anger.

We cannot retain a defence that condones and perpetuates male aggression.

People who kill having lost self-control in this manner will now, if found guilty, be convicted of murder rather than manslaughter, the question of provocation simply taken into account, if relevant, alongside a range of other factors in the sentencing process.

The law of provocation has failed to evolve sufficiently to keep pace with a changing society. It has no place in a modern, civilised society."