I recall that some of the better law students used to laugh at judges' efforts to elucidate the acts reus of attempts, especially impossible attempts, and also at their efforts to explain what provocation is. The latter has remained problematic, as can be seen from today's High Court of Australia decision in Pollock v R [2010] HCA 35. The case illustrates how even Bench Book directions derived from appellate judgments can be held by a higher court to be wrong.
In New Zealand we have repealed the statutory defence of provocation, as it is no longer thought to be necessary since the penalty for murder can in exceptional cases be less than life imprisonment. I am sure that, once the question of provocation is explored in sentencing hearings, the old difficulties will be revived.
Now that the questions concerning liability for impossible attempts have been solved, and provocation has diminished in importance, law students will be starved for intellectual stimulation in criminal law. Is there really anything worth puzzling over as far as the ingredients of offences and defences are concerned? Surely the focus of interest has shifted to admissibility issues, especially those involving rights.
So there is some nostalgia in reading Pollock - those old familiar authorities, those old familiar errors.
