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The Partial Defence of Provocation in Sydney

A person who is charged with murder in Sydney or elsewhere in NSW can rely on provocation as a ‘partial defence’. This means that if a person facing a murder charge is found to have been responding to extreme provocation, the court will find them guilty of manslaughter rather than murder. The partial defence of provocation in Sydney is set out in section 23(1) of the Crimes Act 1900. The defence of provocation cannot be relied on in relation to other offences in NSW.

The law on provocation as a defence to murder was significantly altered in 2014 and does not apply to murders that were allegedly committed before 1st June 2014.

The legislation

Under section 23 of the New South Wales Crimes Act 1900, a jury must acquit a person of murder and find them guilty of manslaughter in the alternative if:

  • The act that caused the victim’s death was done in response to extreme provocation towards the accused person;
  • The provocative conduct was a serious indictable offence;
  • The provocation caused the accused person to lose their self-control; and

The conduct was such that could have caused an ordinary person to lose self-control to the extent of forming the intent to kill or inflict grievous bodily harm on the victim.

Conduct is not extreme provocation if it is limited to a non-violent sexual advance or if the accused person incited the provocative conduct as an excuse to use violence on the victim.

Rationale

The rationale behind the partial defence of provocation in Sydney is that the level of a person’s moral culpability for an offence is lower when they have lost control as a result of someone else’s provocation. A conviction for manslaughter rather murder is considered more reflective of the level of a offender’s blameworthiness in this situation.

Proponents of the partial defence of provocation argue that it is important to recognise a distinction between killing in response to provocation and killing in other circumstances.

Reverse onus

The partial defence of extreme provocation in Sydney carries a ‘reverse onus’, meaning that once the defence has raised provocation, the prosecution must prove beyond a reasonable doubt that the offender was not acting under provocation. The accused does not have to prove to the court that they were acting in response to provocation.

What the court must consider

The court must consider the below questions before deciding whether the victim was killed in response to provocation:

  • Was the act that caused death done in response to the deceased’s conduct towards or affecting the defendant? If the jury is not satisfied that the act was done in response to provocative conduct towards or affecting the accused, the defence must fail.
  • Did the provocative conduct amount to a serious indictable offence? The jury must be satisfied that the victim’s conduct was an indictable offence for the defence of provocation to succeed.
  • Did the conduct cause the accused to lose their self-control? If not then the defence fails.
  • Could the provocative conduct have caused an ordinary person to lose their self-control to the point of forming an intent to kill or inflict grievous bodily harm? An ordinary person is a person who is sober and of the same age and maturity as the accused. The response to consider is a possible response, not an ordinary person’s probable response. If the accused was voluntarily intoxicated by alcohol or another drug at the time of the alleged offence, the court must not take this into account.

Provocation in Sydney before 2014

Before 2014 the partial defence of provocation had a wider scope. In 2012, a man charged with murder was found guilty of the altenative charge of manslaughter after successfully arguing that his wife provoked him by telling him that she did not love him, had never loved him and that she loved someone else.

In response to that decision, a select committee was established to consider reforming the defence of provation due to community concerns. Critics of the defence argued that it was commonly used by men charged with murdering female partners, that it was based on blaming the victim and privileged violent male reactions to insult.

In 2014, provocation was restricted to ensure that it could not be used in situations where the behaviour claimed consisted only of infidelity, the victim ending a relationship with the accused or the victim making a non-violent sexual advance towards the accused. The partial defence was retained, partially because of the view that it was needed to protect women who are long-term victims of family violence in circumstances where it may not be possible to successfully rely on self-defence.

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Author

Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws from Latrobe University, a Graduate Diploma in Legal Practice from the College of Law, a Bachelor of Arts from the University of Melbourne and a Master of Arts (Writing and Literature) from Deakin University. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory. She also practised in family law after moving to Brisbane in 2016.
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