Provocation

In 2014 the Crimes Amendment (Provocation) Act 2014 was passed. This act applied to any murder allegedly committed after 13 June 2014. This act introduced the concept of “extreme provocation”.

Provocation exists in the criminal law primarily as a factor in mitigation on sentence (s21A(3)(c) of the Crimes (Sentencing Procedure) Act 1999). However, on a charge of murder, provocation was a basis on which an act that would otherwise have been murder could be reduced to manslaughter.

A number of the authorities below pre-date that change, but are still applicable to the question of whether provocation should be left to the jury, and the basis on which a jury should consider whether it is made out.

In 2014 the Crimes Amendment (Provocation) Act 2014 was passed. This act applied to any murder allegedly committed after 13 June 2014. This act introduced the concept of “extreme provocation”.

Now, a murder is reduced to manslaughter if:

              (a) the accused acted in response to conduct of the deceased towards or affecting the accused; and

(b) the conduct of the deceased is a serious indictable offence (punishable by 5 years imprisonment or more); and

(c)  the deceased’s conduct caused the accused to lose self-control; and

(d) 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.

It is of particular note that the test at (d) now refers to the objective test of the “ordinary person”, as opposed to “could have induced an ordinary person in the position of the accused”

Moffa

Moffa v R [1977] HCA 14

“Although the onus of establishing that the killing was not provoked lies on the Crown, it is a question for the decision of the judge whether there is evidence upon which a jury could reasonably return a verdict of manslaughter on the ground of provocation, and it is established that a trial judge should withdraw an issue of provocation from the jury if the evidence could not reasonably support the conclusion that the provocation was of such a character as could have deprived a reasonable person of the power of self-control to such an extent as to lead him to do what the accused did…”

“Everything that the deceased said and did on 21st August must therefore be considered in deciding whether there was provocation.”