Provocation to be Limited as a Defence in NSW: Crimes Amendment (Provocation) Bill 2014

Thursday 6 March 2014 @ 11.20 a.m. | Crime

On 5 March 2013, the Christian Democrats Leader the Reverend the Honourable FJ Nile, MLC (the Rev. Nile) introduced into the NSW Parliament a Private Members Bill entitled the Crimes Amendment (Provocation) Bill 2014 (the Bill) whose key purpose is stated as the amendment of the Crimes Act 1900 (NSW) (the Crimes Act) in relation to the partial defence of provocation to a charge of murder. This proposed legislative reform was included in The partial defence of provocation report published in April 2013 by the Legislative Council’s Select Committee on the Partial Defence of Provocation head by the Rev. Nile.

Purpose of the Bill

The purpose of the Bill is expressed in the explanatory material accompanying it as being "to reformulate the law of provocation in order to restrict its operation".

The current position under section 23 of the Crimes Act is, that the defence of  "provocation" is a partial defence to a charge of murder which will result in an accused being acquitted of the more severe charge of murder and instead being convicted of manslaughter.

This changes proposed by the Bill will see section 23 of the Crimes Act repealed and replaced with a section that provides a more limited partial defence of  extreme provocation.

Section 23 of the Crimes Act as presently enacted makes the partial defence of provocation available if the accused loses self-control because of the words or other conduct of the deceased victim where that conduct could have caused an ordinary person in the position of the accused to have lost self-control to the extent of intending to kill or inflict grievous bodily harm on the deceased victim.

The proposed substituted section 23 would provide that an accused acts in response to extreme provocation only if the provocative conduct of the deceased:

  • was a serious indictable offence (that is, an offence punishable by imprisonment for life or for five years or more); and
  • caused the accused to lose self-control (a subjective test); and
  • could have caused an ordinary person to lose self-control to the extent of intending to kill or inflict grievous bodily harm on the deceased (an objective test).

Note, the proposed substituted section specifically excludes certain conduct from being provocative conduct, namely:

  • non-violent sexual advances; and
  • conduct incited by the accused in order to provide an excuse to use violence against the deceased.

The substituted section also excludes evidence of self-induced intoxication from being taken into account in determining whether the accused acted in response to extreme provocation.

The proposed substituted section 23, like the existing section, provides that the killing of the deceased need not occur immediately after the provocative conduct.

Why the Proposed Change has Come About

The 2013 Legislative Council Inquiry, which has resulted in the proposed legislation, was brought on by several "gruesome murder cases". The main one being R v Singh, where a Sydney man Chamanjot Singh was sentenced to just six years in prison for repeatedly slitting his wife's throat with a box cutter after she threatened to leave him and have him deported back to India (see Singh v R [2012] NSWSC 637 (7 June 2012) and see also R v Won [2012] NSWSC 855 (3 August 2012) where the jury was asked to decide if the act of finding a spouse in bed with someone else could have induced an ordinary person in the position of Won to have so far lost self-control as to have formed an intent to kill, or to inflict grievous bodily harm; a case that resulted in a sentence of imprisonment for seven years and six months with a non-parole period of five years).

After looking at cases like those noted above, the Committee, when it reported, recommended placing strong restrictions on the partial defence of provocation. A conclusion that seems to follow a similar recommendation by the Victorian Law Reform Commission which found that the law "partly legitimates killings committed in anger" and resulted in the defence of provocation being abolished in Tasmania in 2003 and Victoria in 2005.


The ABC News reports the Rev. Nile as saying:

"Some stakeholders raise concerns that the Bill goes too far in restricting the partial defence potentially making it difficult for women who kill their partners after long term abuse to rely on provocation, . . ."

But the Rev. Nile is reported as replying to those concerns by saying that:

". . . the bill strikes a careful and appropriate balance between restricting the defence and leaving it available for victims of extreme provocation, including victims of long term abuse."

The change which is expected to be supported in the Legislative Assembly will be interesting to watch in practice as it will add to a growing list of harsher more punitive criminal law reforms passing through the NSW Parliament.

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