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Amendments to the partial defence of provocation introduced

A Bill has been introduced in NSW to amend the law of provocation, the partial defence to homicide. An exposure draft Bill was introduced in 2013 and you can read about this in an earlier post.

The Legislative Council’s Select Committee on the partial defence of provocation made recommendations to amend section 23 of the Crimes Act 1900 (NSW) and this Bill is the Government’s response to these recommendations.

This is what was said in Parliament in the Second Reading speech introducing the intent of this Bill:

The select committee was established in June 2012, following community concern at the result in the matter of Singh. In that case Mr Singh stood trial for murder after cutting his wife's throat several times with a box cutter. At trial Mr Singh claimed that his wife, Manpreet Kaur, provoked him by telling him she had never loved him and was in fact in love with someone else, before threatening him with deportation. Mr Singh claimed that as a result of this conduct he lost self-control and so should not be found guilty of murder but of the less serious offence of manslaughter. The jury agreed and Mr Singh was sentenced to a minimum term of six years imprisonment with a total term of eight years.

In order to acquit Mr Singh of murder under the current test for provocation the jury needed to be satisfied there was a reasonable possibility that the conduct of Manpreet Kaur had caused Mr Singh to lose self-control and that her conduct was such that an ordinary person, in the position of Mr Singh, could also have so far lost self-control as to form the intention to either kill or seriously injure her. The rationale for the doctrine of provocation is that a person's moral culpability is reduced where they kill in these circumstances, such that a conviction for manslaughter rather than murder is warranted. The doctrine of provocation has been controversial, not least because of its perceived complexity.'

Read more in the Second Reading speech.

The Crimes Amendment (Provocation) Bill 2014 (NSW)

This Bill revises the partial defence of extreme provocation.  This partial defence will only be available if the provocative conduct of the deceased:

  • was a serious indictable offence and
  • caused the accused to lose self-control, and
  • could have caused an ordinary person to lose self-control to the extent of intending to kill or inflict grievous bodily harm.

The Bill also ensures that provocation will no longer be available as a defence to people who are intoxicated, unless the intoxication was not self-induced.  Currently, people can use provocation as a defence if:

  • words or conduct of the deceased caused the accused to lose self-control, and
  • conduct of the deceased 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 inflict grievous bodily harm on the deceased.

See media release of the Attorney-General, 5 March 2014.

Responses in the media

Find out more

You can find further information about provocation on our research guides: