New Bill Raises the Bar on
Provocation
Issued: Wednesday, 5 March
2014
[PDF, 110KB]
The revised partial defence of
“extreme provocation”, introduced into Parliament today, will better reflect
community attitudes towards cases in which an accused kills an intimate partner
only to escape a murder conviction by claiming they had been provoked, Attorney
General Greg Smith SC said today. “This more limited partial defence of “extreme
provocation” raises the bar on the circumstances when this defence can be used,
so that it is only available in the most extreme cases,” Mr Smith said.
“Importantly, an accused can no longer use this excuse because their partner was
unfaithful or wishes to end the relationship,” he said. “Nor will provocation be
available as a partial defence to someone who kills a person who merely made a
non-violent sexual advance - whether heterosexual or homosexual - towards them.”
The bill meets the policy intent of the legislative recommendations of the
Select Committee on Provocation which examined this complex issue.
“In
recognition of work done by the Committee it will be introduced in the Upper
House by its chair, Christian Democrat MLC the Rev Fred Nile. I thank the
committee and the Rev Nile for their commitment to resolving the issue and
reflecting community expectations in this complex area of the
law.”
Under the bill ‘extreme provocation’ is
only available as a partial defence if the provocative conduct of the
deceased:
was a serious indictable offence, and
caused the accused to lose self control, and
could have caused an ordinary person to lose self
control to the extent of intending to kill or inflict grievous bodily harm
It enacts a Draft Exposure Bill which
was released for public consultation in October.
“This bill ensures that provocation can no longer be used
inappropriately to have a murder charged reduced to manslaughter, while ensuring
the defence remains available to people who have suffered long standing domestic
abuse and violence at the hands of their partners.”
“It does away with a law that was seen by many as being biased
against women, and blaming the victim’s behaviour for the offender’s loss of
self-control.”
“The new text will focus the jury on ordinary community standards by
requiring them to consider what an ordinary person’s reaction could have
been.”
“The
bill also ensures provocation will also no longer be available as a defence to
people who are intoxicated, unless the intoxication was not self
induced.”
Currently, people can use
provocation as a defence if:
The words or conduct of the deceased caused the
accused to lose self- control, and
The conduct of the deceased could have induced an
ordinary person, in the position of the accused, to have so far lost self
control as to have formed an intent to kill, or inflict grievous bodily harm on
the deceased.