The defence of provocation is a partial defence and may be raised to the charge of murder. A successful defence of provocation will reduce the charge of murder to voluntary manslaughter.
There are three elements which need to be established in the defence of provocation:
1. the provoking circumstances;
2. the accused’s loss of self-control resulting from the provoking circumstances; and
3. whether the provocation could have caused the ordinary person to lose self-control.
Whether the accused’s loss of self-control was a result of the provoking circumstances is a subjective test. Thus the Court is interest in the specific characteristics and background of the accused and any relevant facts as to what might have led him or her to react in the way in which he or she did.
On top of the subjective assessment of the accused’s conduct the Court must also take into account how the ordinary person would have reacted. Section 23(2)(b) of Crime Act (NSW) 1900 provides that provocative conduct will be ‘such as 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 to inflict grievous bodily harm upon, the deceased’. The conduct of the deceased need not have been immediately prior to the act or omission causing death.
The accused must sufficiently raise the defence of provocation then it is left to the prosecution to prove beyond reasonable doubt that there was an absence of the elements of the defence.