Restricting Provocation — The New South Wales Experience

Abstract

Unlike several of its Australian counterparts, while New South Wales (NSW) has grappled for decades with the controversial defence of provocation, several reviews of the law have resulted in its retention as a partial defence to murder. As of February 2014, Section 23 of the Crimes Act 1990 (NSW) sets out the requirements for the partial defence of provocation, which, when successfully raised, reduces what would otherwise be considered murder to manslaughter. In what has been critiqued in practice as an overly complicated piece of legislation (see the discussion in Chapter 10) the requirements of the provocation defence under this legislation are that:

Provocation is established where an act (or omission) is the result of a loss of self control by the defendant that was induced by any conduct of the deceased toward or affecting the defendant and the conduct of the deceased was such that it could have induced an ordinary person to have so far lost self control as to have formed intent to kill or inflict grievous bodily harm. (Crimes Act 1990 (NSW) s 23(1))