Provocation

Best Provocation Lawyers

Provocation is a unique legal concept in Australia. It is a ‘partial defence’ to murder. It is not a defence to any other charge.

However, it can be used in mitigation in sentencing proceedings. This can be significant as it may allow you to receive no conviction if you plead guilty.

Contact us now for a consultation with an accredited specialist in criminal law who can quickly analyse your case and advise you on your options.

What is Provocation?

Provocation is defined in Section 23 of the Crimes Act 1900 (NSW). The legislation sets out that provocation can only be used if:

1. You have been charged with murder;
2. Your actions were in response to ‘extreme provocation’ from the deceased.

If the Court finds that you were provoked, you will be found ‘not guilty’ of murder and found guilty of ‘manslaughter’ instead.

Manslaughter still carries significant penalties and a term of imprisonment is almost inevitable.

What is Extreme Provocation?

The Crimes Act provides that you can be found to have acted under ‘extreme provocation’ if each of the below points are satisfied:

1. You killing the deceased was a direct result of their provocation;
2. The deceased committed a ‘serious indictable offence’ which affected you (ie. you do not necessarily have to be the direct victim of the deceased’s offending);
3. The deceased’s provocation caused you to lose self-control;
4. An ordinary person in your position would have lost self-control and killed or caused grievous bodily harm to the deceased.

Examples of Provocation?

Significantly, the provocation does not have to occur immediately before the deceased’s death. For example, if weeks prior the deceased had sexually assaulted your child, you could argue that you were acting under extreme provocation (providing the other criteria are satisfied).

Another common situation where this arises is in domestic violence relationships (ie. battered woman syndrome) where there has been a long and protracted history of abuse by the deceased to the accused.

Some circumstances would not satisfy the requirements for provocation. These include:

1. Non-violent sexual advances (ie. if the deceased was merely flirting with you or touching you in a non-hostile way);
2. If you deliberately provoked the deceased so that you would have an excuse to attack them.

Necessity is rarely successful. This is because there are onerous rules which must be satisfied in order for it to be made out. If you have been charged with a criminal offence and believe that your actions were necessary, contact us immediately to speak to Australia’s best criminal lawyers.