The defence of provocation is one of the most controversial doctrines in Australian criminal law. The partial defence of provocation was first developed in English courts in the 16th and 17th centuries. It was often invoked in cases where the accused claimed to have been provoked by insults, infidelity or sexual rejection into killing another. If successfully raised, it could change a conviction of murder into one of manslaughter, including a lesser prison sentence.
Since its first application in Australia, the doctrine of provocation has been criticised for reflecting a narrow and inappropriate view of honour and rage. The partial defence was commonly argued in cases of a man being propositioned by another man (the 'gay panic defence') or when a man discovers his partner has been unfaithful, killing either his partner, their paramour or both.
The doctrine underwent a series of reforms in the 21st century to drastically limit the circumstances in which the partial defence can be raised. A catalyst for reform in NSW was the high-profile case of Singh v R [2012] NSWSC 637, where the accused successfully raised provocation after killing his wife. The case drew public criticism due to the perceived leniency of the outcome and prompted an independent review of the law.
In response, the NSW Parliament narrowed the scope of the defence through the Crimes Amendment (Provocation) Act 2014 (NSW), replacing the former test with the stricter criteria of extreme provocation. These changes aimed to ensure the defence would only apply in the most serious and exceptional circumstances, such as where the deceased had sexually assaulted the accused or their child.
Provocation Meaning
Provocation is a circumstance where a person responds to another person's conduct against them, and that person's conduct could cause an ordinary person to lose self-control to the same extent as the person who was provoked.
The provocation defence is actually referred to as a partial defence to a murder charge in Australia. If a person charged with murder acted in response to extreme provocation, the murder charge will be downgraded to manslaughter, pursuant to section 23 of the Crimes Act 1900 (NSW).
What is the benefit of using the defence of extreme provocation to a murder charge? A manslaughter offence is less serious than murder. In New South Wales, the maximum penalty for murder is life imprisonment with a 20 year standard non-parole period. In contrast, the maximum penalty for manslaughter is 25 years' imprisonment with no standard non-parole period.
Manslaughter by provocation is a type of voluntary manslaughter, also called manslaughter by extreme provocation.
Provocation in other assaults can reduce a sentence if the offence was committed under provocation. Here provocation does not apply as a defence, rather as a mitigating factor to reduce the sentence or penalty. This is because the provocation works to reduce the amount of weight to be placed on the seriousness of the offence, in turn allowing the punishment to be reduced.
However, not all provocation will result in a reduction of the sentence. To reduce the sentence due to provocation, the motive has to impinge on the offender's criminal responsibility which depends on the circumstances of each case.
Section 21A(3)(c) of the Crimes (Sentencing Procedure) Act 1999 (NSW) allows the court to reduce the sentence based on a finding of provocation. This can apply for domestic violence offences in some circumstances.
Provocation Defence and Manslaughter by Extreme Provocation
Currently, extreme provocation remains a partial defence to murder in NSW allowing an accused to reduce a conviction to manslaughter where the accused killed another person in response to a particularly severe provocation. Here is an explanation of how to run the defence of extreme provocation to a murder charge.
If you are guilty of murder but prove on the balance of probabilities that it was done in extreme provocation circumstances, then you will be discharged of the murder charge and instead guilty of manslaughter by extreme provocation.
The extreme provocation defence to murder will apply if:
- You are guilty of murder, and
- Your conduct that caused the victim's death was in response to the victim's conduct, and
- The victim's conduct towards you at the time constituted an offence attracting a maximum penalty of five years imprisonment or more, and
- The victim's conduct caused you to lose self-control while in an emotional state. Not deliberately vengeful, hatred or revengeful, and
- Your conduct in such circumstances could have possibly caused an ordinary person to lose self-control to the same extent of intending to kill or inflict really serious injury.
What is the "Ordinary Person"?
The "ordinary person" is a person with minimum powers of self-control expected of any ordinary citizen who is sober, same age and maturity as you.
This formulation imposes both a subjective test (did the accused lose self-control?) and an objective test (would an ordinary person have done so to the same extent?). Importantly, the deceased's conduct must have been criminal and serious, not merely offensive or insulting.
Voluntary Consumption of Alcohol
A person guilty of murder who wishes to rely on the partial defence of extreme provocation cannot rely on their state of intoxication if it was voluntary consumption of it for purposes of the court determining whether an ordinary person would possibly have lost self-control in the circumstances of the offender at the time.
What Conduct Qualifies as Extreme Provocation?
Under the Act, not all provocative conduct will constitute 'extreme provocation'. To meet this threshold the deceased's conduct must be a serious indictable offence being directed towards or affecting the accused.
This sets a high threshold. For instance, if a person killed another in response to a non-violent sexual advance, the defence will not be available. This ensures that homophobic or misogynistic "gay panic" or "jealous rage" defences are excluded from consideration. Similarly, if the accused provoked the deceased into committing a serious offence in order to justify their own use of violence, they cannot rely on extreme provocation.
Provocation Defence in Victoria, Western Australia and ACT
The partial defence of provocation has been abolished in Victoria, Western Australia and the Australian Capital Territory. These jurisdictions have determined that loss of self-control, even in the face of serious provocation, should not reduce a murder charge to manslaughter, instead favouring sentencing discretion to take such circumstances into account.
Provocation Defence in Queensland, South Australia, Tasmania and NT
In contrast, the defence remains available in Queensland, South Australia, Tasmania and the Northern Territory, though the scope and application vary.
Queensland retains the common law version of provocation under section 304 of the Criminal Code Act 1899(Qld), but with reforms that exclude reliance on unwanted sexual advances as provocation.
South Australia also retains provocation as a partial defence under section 11 of the Criminal Law Consolidation Act 1935 (SA), although it too has been subject to critique and proposed reform.
Tasmania and the Northern Territory have made fewer changes, maintaining broader formulations of the defence.
Should the Partial Defence of Extreme Provocation Be Abolished?
Despite the narrowing of the partial defence in NSW, the doctrine of provocation remains highly controversial, with calls for it to be abolished.
Critics argue that even in its current form, the defence of extreme provocation risks shifting blame onto victims and can obscure the moral responsibility of the offender. Others contend that it may still be inappropriately raised in cases involving family violence or gender-based killings.
Whilst the NSW model represents an attempt to reform rather than abolish the doctrine, preserving it only in the most serious and morally compelling cases. Whether this compromise achieves justice for both victims and offenders remain a topic of debate.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
