The New South Wales Parliament recently passed changes to the Crimes Act which concerned the previous defence of provocation.
The new law says that you can raise the defence only if you have been charged with murder and you suffered ‘extreme provocation’ at the hands of the deceased person, which prompted you to kill them.
The law says that ‘extreme provocation’ can only be proved where:
- Your actions which brought about the deceased’s death were a direct result of their provocative conduct AND
- The deceased committed a ‘serious indictable offence’ towards you, or which affected you (for example, if the deceased was attempting to sexually assault you, or if the deceased sexually assaulted your child); AND
- The deceased’s actions caused you to lose self-control AND
- The deceased’s actions would have caused an ordinary person in your position to lose self-control and kill the deceased, or inflict serious grievous bodily harm upon the deceased
The provocative conduct of the deceased does not have to occur immediately prior to their death.
This means that if you have suffered a long history of abuse at the hands of the deceased, it may be enough to amount to provocation.
The law also says that the following situations alone are not enough to constitute ‘extreme provocation’:
- Non-violent sexual advances – for example, where the deceased attempts to flirt with you or touch you in a non-violent way
- Situations where you provoked the deceased’s conduct in order to have an excuse to use violence against them
If raised successfully, the partial defence of provocation will result in the charge of murder being reduced to manslaughter, which carries less serious penalties. However, unlike a ‘complete’ defence (such as self-defence or duress), it won’t completely excuse or acquit you of the charges.
The defence of extreme provocation can only be raised in murder cases – it can’t be raised in relation to any other crime.
Section 23 of the Crimes Act 1900, which deals with the partial defence of extreme provocation, reads as follows:
23 Trial for murder—partial defence of extreme provocation
(1) If, on the trial of a person for murder, it appears that the act causing death was in response to extreme provocation and, but for this section and the provocation, the jury would have found the accused guilty of murder, the jury is to acquit the accused of murder and find the accused guilty of manslaughter.
(2) An act is done in response to extreme provocation if and only if:
(a) the act of the accused that causes death was in response to conduct of the deceased towards or affecting the accused, and
(b) the conduct of the deceased was a serious indictable offence, and
(c) the conduct of the deceased caused the accused to lose self-control, and
(d) the conduct of the deceased could have caused an ordinary person to lose self-control to the extent of intending to kill or inflict grievous bodily harm on the deceased.
(3) Conduct of the deceased does not constitute extreme provocation if:
(a) the conduct was only a non-violent sexual advance to the accused, or
(b) the accused incited the conduct in order to provide an excuse to use violence against the deceased.
(4) Conduct of the deceased may constitute extreme provocation even if the conduct did not occur immediately before the act causing death.
(5) For the purpose of determining whether an act causing death was in response to extreme provocation, evidence of self-induced intoxication of the accused (within the meaning of Part 11A) cannot be taken into account.
(6) For the purpose of determining whether an act causing death was in response to extreme provocation, provocation is not negatived merely because the act causing death was done with intent to kill or inflict grievous bodily harm.
(7) If, on the trial of a person for murder, there is any evidence that the act causing death was in response to extreme provocation, the onus is on the prosecution to prove beyond reasonable doubt that the act causing death was not in response to extreme provocation.
(8) This section does not exclude or limit any defence to a charge of murder.
(9) The substitution of this section by the Crimes Amendment (Provocation) Act 2014 does not apply to the trial of a person for murder that was allegedly committed before the commencement of that Act.
(10) In this section: Act includes an omission to act.
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