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This article was written by Fernanda Dahlstrom - Content Editor - Brisbane

Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Legal Practice. She has also completed a Master’s in Writing and Literature. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory and in family law in Queensland.

The Partial Defence of Provocation (NSW)


In New South Wales, a person accused of murder can use extreme provocation as a ‘partial defence’. If a person charged with murder was responding to extreme provocation, they will be found guilty of manslaughter rather than murder under section 23(1) of the Crimes Act 1900. The defence of provocation cannot be used in relation to assaults or other violent offences.

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

The legislation

Under Section 23 of the Crimes Act 1900, a jury must acquit an accused of murder and find them guilty of the alternative charge of manslaughter if:

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

The provocative conduct could have caused an ordinary person to lose self-control to the point of intending to kill or inflict grievous bodily harm on the victim.

Conduct is not extreme provocation if it consists only of a non-violent sexual advance or if the accused person incited the conduct as an excuse to use violence against the victim.

Rationale

The rationale behind provocation is that the level of a person’s moral culpability is lower when they have lost control as a result of another person’s provocation. A conviction for manslaughter rather than for murder is thought to be more reflective of the level of a person’s blameworthiness in this situation.

Supporters of the partial defence of provocation argue that it is important to retain a distinction between killing in response to a victim’s provocation and killing under other circumstances.

Reverse onus

The partial defence of extreme provocation carries a ‘reverse onus’. This means that once the accused has raised this defence, the prosecution must prove that the accused was not acting under provocation. The accused does not have to prove that they were acting under provocation.

What the jury must consider

The jury must apply the below questions to the evidence before deciding whether the victim was killed in response to extreme provocation:

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

Provocation before 2014

Before 2014 the defence of provocation had a significantly wider scope. In 2012 a man charged with murder was convicted of manslaughter after successfully arguing that he killed his wife in response to provocation consisting of her telling him that she did not love him, had never loved him and loved someone else.

A select committee was established to consider reforming the defence after community concerns were raised about the verdict in the case described above. Critics of the defence argued that provocation was commonly used by men charged with murdering female partners, that the defence was based on blaming the victim and that it privileged male violent reactions to insult.

In 2014, the defence of provocation was restricted to ensure that it could not be used in situations where the provocation claimed consisted of infidelity, the victim ending a relationship or making a non-violent sexual advance. The partial defence was retained, partially because of concerns that it was necessary to protect women who are long-term victims of domestic violence where it may be impossible to successfully run the defence of self-defence.

If you require legal advice or representation in any legal matter please contact Armstrong Legal. 

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