LAWS1016 Extreme Provocation

Question 1

s23 Partial Defence of Extreme Provocation

Answer 1

(1) If it is reasonably possible that the act (including omission s23(10)) causing death was in response to extreme provocation (as defined by s23(2)-(5)), then the conviction of murder will be reduced to manslaughter.
(2) Conduct of the deceased must be (a) towards or affecting the accused, AND (b) was a serious indictable offence, AND (c) caused the accused the lose self control (i.e. subjective test), AND (d) could have (as opposed to must / would definitely have) caused an ordinary person to lose self-control to the extent of intending to kill or inflict GBH.
(3) Conduct of the deceased does not constitute extreme provocation if (a) conduct was only a non-violent sexual advance, or (b) accused incited the conduct in order to provide an excuse to use violence.
(4) Conduct of the deceased may constitute extreme provocation even if the conduct did not occur immediately before the act causing death.
(5) Self-induced intoxication of the accused cannot be taken into account.
(6) Provocation is not negatived merely because act causing death was done with intent to kill / inflict GBH.
(7) D must first to discharge an evidential burden for the issue to left to the jury, the P must prove BRD that the act causing death was not in response to extreme provocation.
(8) This section does not exclude or limit any other defence to a charge of murder.
(10) In this section: act includes an omission to act.

Question 2

(2)(a) towards or affecting the accused

Answer 2

• Though the phrasing in the legislation is very wide, courts have nevertheless interpreted it as leaving undisturbed the common law formulation that the provoking conduct must occur within sight or hearing of the accused, hearsay provocation is insufficient.
• (Davis) 3 yr old step-daughter claimed sexually assaulted, investigation, AVO, heavy drinking, killed with tree branch, leave to appeal refused because time elapsed between reporting and killing was too long for any ordinary person to have lost self-control to the extent of intending to kill / inflict GBH. However, HCA indicated that [Quartly] may no longer be relevant, and the words of the statue read in an objective sense, could be wide enough.

Question 3

(2)(b) Serious indictable offence

Answer 3

s4(1) SRO = offence punishable by life imprisonment or imprisonment of 5 yrs or more.

Words alone may qualify as provoking conduct: s249K blackmail; s199 threatening to destroy or damage property.

Question 4

(2)(c) Subjective Test: caused D to lose self-control

Answer 4

(Chhay) long-term domestic violence case, killed while sleeping. Victim’s provoking conduct may build over time, culminating in a fatal loss of self-control - a final provocative act to trigger the loss of self-control is not necessary. A seemingly innocuous statement of the deceased may, in the context of relationship’s history, constitute serious provocation which might cause the accused to lose her self-control. So although response is not sudden, it is still a complete loss of self-control.

Question 5

(2)(d) Gravity and Objective Test: could have caused ordinary person to lose self-control to the extent of forming an intent to kill / inflict GBH

Answer 5

(Stingel) 2 step test: (1) assess the gravity of the provoking conduct to the accused (in light of accused’s age, race, ethnicity, personal attributes, relationships, past history) (2) whether an ordinary person could have lost self control to the extent of forming an intent to kill in the face of that degree of provocation. It is unclear whether (Stingel) is still the law in NSW. s23(2)(d) has removed the phrase “in the position of the accused”, indicating that it is now a purely objective test. However, the Tasmanian provision that the HCA considered in (Stingel) did not include this phrase anyway.