Murder is considered to be the most serious criminal offence and comes with a maximum penalty of life imprisonment, which in NSW means that those who are found guilty can spend the rest of their lives in prison.
There are a number of different defences to murder charges, and provocation is currently considered a partial defence in legal terms.
If you are currently defending yourself against a charge of murder, and your criminal lawyer can prove that you were provoked, you can potentially have your murder charge reduced to manslaughter, which can come with a much less serious penalty.
This may change in the near future however with the introduction of a new amendment to NSW Parliament.
The proposed legislation to reduce the use of provocation as a partial defence in certain circumstances was introduced to parliament by Christian Democrat Reverend Fred Nile on March 5.
What does the law currently say about provocation?
Provocation is often used in the defence of murder charges, and if successful can lead to a reduction in charges from murder to manslaughter.
But there have been questions around what constitutes reasonable provocation, and whether the existing provocation laws put the blame for the accused’s lack of self-control onto the victim, rather than making them accept responsibility for their actions.
A recent controversial example of provocation being used as a defence was in the case of Sydney man Chamanjot Singh, who received a six-year sentence for manslaughter in 2012.
Singh brutally killed his wife after she told him she was in love with someone else and threatened to have him deported.
The community reaction to this case led to a parliamentary inquiry and a recommendation to have the defence of provocation amended or removed altogether.
Currently, the law surrounding provocation states that it can be used as a partial defence to murder charges in cases where the accused lost self-control due to any behaviour on the part of the victim, including grossly insulting words or gestures.
The conduct of the deceased needs to have been such that any reasonable person would have lost control under the circumstances and formed an intent to kill or inflict grievous bodily harm on the deceased.
This conduct doesn’t need to have taken place immediately before the act of when the murder happened.
There have been concerns about changing the existing law due to the possibility that it could lead to difficulties for domestic violence victims who may have been subject to years of ongoing abuse.
Removing the defence of provocation or limiting its effectiveness may limit defendants who suffered domestic violence in their ability to use provocation as a defence.
It is argued that this could lead to domestic violence victims being unfairly penalised and receiving overly harsh sentences.
What are the proposed changes?
The new amendment is intended to reduce the use of this defence for offences committed out of jealousy or lack of self-control by amending the use of provocation to ‘extreme’ provocation.
Under the proposed changes, extreme provocation can only be used in cases where the deceased committed a serious indictable offence prior to their death.
In order to be able to use a defence of provocation under the new amendment, defendants will also have to be able to prove that in addition to committing a serious indictable offence which caused them to lose self-control, the deceased’s conduct was such that a reasonable person would have lost control and formed an intent to murder or inflict grievous bodily harm on the deceased.
The provocation doesn’t need to have taken place immediately before the act or omission which caused the death of the victim.
It is believed that these amendments will still allow victims of domestic violence and ongoing abuse to successfully use extreme provocation as a defence, while limiting its use in other areas.
These changes are intended to remove the use of provocation in situations of infidelity or a relationship break up, and also to remove its use in cases involving non-violent sexual advances from someone of the same sex or opposite sex.
It will also no longer be possible to use intoxication as a defence unless it was not self-induced.
These changes are expected to be supported by the Legislative Assembly, and are believed to reflect current community standards and values.