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Home » Criminal Law » Defences » Provocation (Murder only)

Defending Extreme Provocation in Murder Trails

Provocation can only be raised in relation to murder and is known as a ‘partial defence’. That is, if the defence is successful the charge is downgraded to manslaughter.

What is the Meaning of Provocation?

Provocation refers to a situation where an individual is provoked or incited by someone else’s actions or words to lose control and commit a crime. While provocation may be a mitigating factor in some criminal cases, it is not a defence in its own right.

Provocation can only be raised in relation to murder and is known as a ‘partial defence’. That is, if the defence is successful the charge is downgraded to manslaughter.

 

To successfully raise provocation, it must be proven on the balance of probabilities that:

 

  • The deceased’s conduct or actions caused you to lose control – conduct or actions could be immediate or over a long period of time e.g.long-term abuse; and
  • The deceased’s conduct or actions would have caused an ordinary or reasonable person to lose control.

Provocation is often a successful defence where the accused person or a close member of their family is a victim of long-term sexual assault or domestic violence.

Extreme Provocation Defence

The Defence of Provocation is a legal defence that can be used to reduce a charge of murder to one of manslaughter. This defence can be argued when the accused person was provoked into committing the crime and lost control as a result. The provocation must be sufficient to cause a reasonable person to lose control and act impulsively. In order to successfully argue the Defence of Provocation, the accused must demonstrate that they were acting under extreme emotional distress and that the provocation was such that it would have caused a reasonable person to lose control.

 

The meaning of provocation varies depending on the jurisdiction, but it generally refers to conduct or words that would cause a reasonable person to lose self-control and act impulsively. Examples of provocation include physical violence, sexual assault, and verbal abuse. In some jurisdictions, provocation may also refer to a situation where the accused was acting in self-defence.

 

In New South Wales, extreme provocation is a legal defence that can be used to reduce a charge of murder to manslaughter. The concept of extreme provocation was introduced in NSW in 2014 as part of the Crimes Amendment (Provocation) Act 2014. This defence is available when the accused was provoked to kill in circumstances of “extreme provocation.” Extreme provocation is defined as conduct of the deceased that would cause a reasonable person to lose control to the point of killing. However, the conduct of the deceased must not have been the result of the accused’s conduct.

 

Section 23(2)(c) maintains that a loss of self-control remains a fundamental component of provocation. However, the loss of self-control is now assessed based on the objective viewpoint of an “ordinary person” under s 23(2)(d), and the previous test, which referred to whether an ordinary person in the accused’s position “could have induced” a loss of self-control, has been eliminated.

 

Under section 23(3), certain types of conduct are not considered provocative, such as non-violent sexual advances made to the accused or conduct instigated by the accused as a pretext for using violence against the victim. It is not necessary for the provocative conduct to occur immediately before the fatal act.

 

Section 23(5) precludes the consideration of evidence related to self-induced intoxication when determining whether the accused acted in response to extreme provocation. Previously, self-induced intoxication could have been relevant in determining whether the accused had personally lost control, but the removal of the “in the position of the accused” language renders it irrelevant at all stages of the assessment.

 

These defences are complex and should only be used in cases where the accused can demonstrate that they were acting under extreme emotional distress and that the provocation was such that it would have caused a reasonable person to lose control. It is also worth noting that the defences are subjective and the decision to accept them is ultimately up to the jury for a jury trial or judge.

 

While the Defence of Provocation and extreme provocation can be used to mitigate a charge of murder, they are highly controversial and should only be used in cases where the accused can demonstrate that they were acting under extreme emotional distress.

If the police have charged you or a loved one, you must attend court. Appearing in court for a criminal charge is usually daunting. Let us help you make the process easier. Here are 10 reasons to choose our team of criminal lawyers from Lyons Law Group;

 

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Our team will work to achieve the best result for you in the shortest time possible. However, we do aim to provide quality over quantity service to you. Our criminal lawyers appear in all criminal and traffic matters, including trials, sentencing, bail applications, and apprehended violence orders. We are a result-focused firm of lawyers.

At Lyons Law, we do not make any unrealistic promises for results. You will be advised on the most realistic results achievable in your case, including acquittals of all charges against you. Nevertheless, you can be sure that our team will work extremely hard to achieve the best possible outcome for you.

 

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Our experienced defence lawyers are passionate about representing their clients and achieving the best outcome. Lyons Law is a team of solicitors who are dedicated, and with our support staff, you can be confident of the highest quality of legal representation. We have an exceptional track record of results. We provide our outstanding client service at an affordable rate for our clients.

 

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Lyons Law Group is a highly experienced team of criminal lawyers. Our team is led by Mohammad Khan, who is one of the best criminal lawyers in Sydney. He has represented clients in some of Australia’s most high-profile cases and was under the direct tutelage of Australia’s leading criminal lawyer Adam Houda.

 

Moreover, our team has worked and successfully represented clients on highly complex trials and sentences in NSW.

 

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We work closely with some of Australia’s leading criminal law barristers. Barristers are usually instructed in more serious matters, and their experience and input can be invaluable to your case. The barristers we regularly instruct range from Queen’s counsels, Senior counsels and highly experienced junior-senior counsels.

 

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Our team of sydney criminal lawyers have worked on numerous District and Supreme Court trials in NSW. We have worked on extremely complex criminal law trials that require impeccable preparation and understanding of the law.

 

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Lyons Law Group is a highly experienced team of bail lawyers. We have regularly obtained bail for clients for extremely serious charges that carry life sentences. For types of charges, bail is usually denied by a Court.

 

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For the preparation of jury trials and defended hearings, these services can be utilised on behalf of our client to achieve the best result.

 

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From Broken Hill to Waverly, our criminal lawyers appear in all courts throughout New South Wales.

 

If you wish to contact us or book your first free 15-minute phone conference, contact us on 0404479096 or send us an email at info@lyonslaw.com.au.

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