Extreme Provocation – Partial Defence Of Provocation (NSW)

The partial defence of extreme provocation is only available in New South Wales when a person is charged with the offence of murder. The amendment to the Crimes Act 1900 in 2014 removed the previously available defence of provocation and substituted such with the partial defence of extreme provocation. Extreme provocation is known as a ‘partial defence’ which, if accepted, operates to reduce the charge of murder to a charge of manslaughter. 

Legislation: 

The Test:

The Act provides in Section 23(2) that an act causing death is an act done in response to extreme provocation if:

1. The act of the accused that caused death was done in response to the conduct of the deceased towards or affecting the accused, and 
2. The conduct of the deceased was a serious indictable offence (meaning the deceased’s conduct constituted an offence which carried a maximum penalty of 5 years imprisonment), and 
3. The conduct of the deceased caused the accused to lose self-control, and 
4. 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.

The Act excludes a person from acting under extreme provocation in situations where the conduct was only a non-violent sexual advance to the accused or the accused incited the conduct in order to provide an excuse to use violence against the deceased. 

In determining whether the accused’s act that caused death was in response to extreme provocation the jury is unable to consider the accused’s self-induced intoxication. 

The loss of self-control by the accused is to be measured in accordance with an ‘ordinary person’ test. The ordinary person is one who has the minimum powers of self-control expected of an ordinary citizen who is sober, of the same age and maturity as the accused. 

The Act provides that extreme provocation is not excluded where the deceased’s conduct which formed the basis for the extreme provocation did not occur immediately before the act causing death nor is the defence not excluded merely because the act causing death was done with intent to kill or inflict grievous bodily harm. 

The Onus:

Whether a person was acting under extreme provocation is a question of fact that is to be determined by the jury. The onus is on the Prosecution to establish beyond a reasonable doubt that the accused’s act which caused death was not done in response to extreme provocation from the deceased. It is not for the accused to prove that they were acting under extreme provocation, but for the Prosecution to prove that they were not acting under extreme provocation to the standard of beyond a reasonable doubt. 

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