In NSW, the partial defence of provocation continues to exist in law. This defence applies in situations where an unlawful killing would otherwise be considered murder. A defence of provocation can be raised if:
- the act or omission is the result of a loss of self-control on the part of the accused that was induced by any conduct of the deceased (including grossly insulting words or gestures) towards or affecting the accused (s 23(a) Crimes Act 1900 (NSW)), and
- that conduct of the deceased was 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 (s 23(b)).
In such circumstances, the jury ‘shall acquit the accused of murder and find the accused guilty of manslaughter’ (s 23(1).