The defence of provocation is a partial defence in the sense that it reduces the charge of murder to manslaughter. It can only be used when a person has been charged with murder and exists in all states except Tasmania. It is not available to a charge of attempted murder.
A partial defence such as provocation does not take away the fault elements of the offence; instead they recognise human frailty. In a way provocation distinguishes between murder which is premeditated with an act that occurs in the spur of the moment in response to a provocation.
The test used by the courts is objective asking if a person in the defendants position with ordinary powers of self control by affected by the provocation so as to loose self control and commit the act of murder.
To put things in more simple terms there are three fundamental requirements:
- there must be provocative conduct
- the accuse must have lost self control as a result of the provocation; and
- the provocation must be such that it was capable of causing an ordinary person to lose self control and to act in the way the accused did.
There must be a link between the provocation and the lose of self control and the act must be done whilst in the presence of the accused. It will not be sufficient to claim provocation as an act of revenge.
There must be evidence of provocative conduct resulting in the lose of control. In more recent times it has been acknowledged that there does not need to be a specific incident. For example the lose of self control can occur after a lengthy period of abuse.
What is considered as important is the cumulative effect of all the circumstances leading up to the lose of self control and the background and history of the accused is also considered.
Words alone don’t seem to be accepted by the courts as provocation. Insulting words accompanied by gestures or other conduct however, maybe enough to constitute provocation.
Burden of Proof
The prosecution bears the legal burden of negating provocation. They can do this by showing:
- legal conduct did not exist; or
- intention to kill arose independently of the provocation;
- the provocation could not have deprived the ordinary person to loose self control in the way they did