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The Partial Defence of Extreme Prosecution in New South Wales

Extreme provocation is a partial defence which reduces an offence of murder to manslaughter.

The defence applies where:

1. The defendant’s act or omission was in response to the deceased’s conduct towards or affecting the defendant,

2. The deceased’s conduct amounted to a serious indictable offence, which is one which carries a maximum penalty of at least 5 years in prison,

3. The deceased’s conduct caused the defendant to lose control, and

4. The deceased’s conduct could have caused an ordinary person to lose control to the extent of intending to kill or inflict grievous bodily harm on the deceased.

The defence does not apply where:

1. The deceased’s conduct was only a non-violent sexual advance on the defendant, or

2. The defendant incited the deceased’s conduct in order to provide an excuse to use violence.

If evidence of the defence is raised, the prosecution must then prove beyond reasonable doubt that the defence does not apply in the circumstances.

The defendant is entitled to an acquittal if the prosecution is unable to do this.

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