Provocation, or as it is now known ‘extreme provocation’, is a partial defence which reduces the charge of murder to manslaughter.
The Crimes Amendment (Provocation) Act 2014 substantially altered the law by creating a partial defence of “extreme provocation”. This new law applies to murders allegedly committed before 13 June 2014. For offences committed prior to this date, the older test for provocation applies.
For offences committed before 13 June 2014
To establish the partial defence of provocation, the following must be established:
- That the deceased conduct (words and actions) have caused the accused to lose their self-control; and
- That the conduct of the deceased would have induced an ordinary person in the position of the accused to have lost self-control and to have formed an intent to kill, or inflict grievous bodily harm on the deceased.
For offences committed after 13 June 2014
To establish the partial defence of extreme provocation, the following must be established:
- That the accused acted in response to conduct of the deceased towards the accused;
- That the conduct of the deceased is a serious indictable offence;
- That the deceased’s conduct caused the accused to lose self-control; and
- That the deceased’s conduct 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 onus of proof
The accused has an ‘evidentiary burden’ to raise the possibility that he or she acted under provocation. The Crown must then prove beyond reasonable doubt that the accused was not acting under provocation.