: A review of the law of provocation in NSW

A review of the law of provocation in NSW

Liz Snell
New South Wales

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).

The use of this defence has gained considerable media attention recently with respect to a man who killed his wife by strangling her and cutting her throat many times with a box cutter. There had been a history of violence. The man was convicted of manslaughter and sentenced to a six year 
non-parole period.

Less than a week after sentencing, the NSW Legislative Council has moved a motion to hold an inquiry into the defence of provocation.

The terms of reference for the inquiry include:

That a select committee be appointed to inquire into and report on:

  1. the retention of the partial defence of provocation including:
    (i) abolishing the defence,
    (ii) amending the elements of the defence in light of proposals in other jurisdictions,
  2. the adequacy of the defence of self-defence for victims of prolonged domestic and sexual violence, and
  3. any other related matters.

The Committee is expected to report by 21 November 2012.

LIZ SNELL is the Law Reform and Policy Co-ordinator at Women’s Legal Services NSW.

(2012) 37(3) AltLJ 206
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