The Defence of Provocation
The defence of provocation in Victoria was a partial defence to murder until 23 November 2005 ( see s3B of the Crimes Act 1958). The defence could be raised in situations where the deceased had engaged in provocative conduct of a nature that might have caused an ordinary person to act as the accused did in resorting to deadly force.
Provocation can still be used in cases where the death could have occurred on or before 23 November 2005: (see defensive homicide and self-defence for the alternative defences to murder committed after 2005).
For provocation to be successful it must be shown that that:
- the deceased did act provocatively;
- the accused did kill the deceased while deprived of self-control because of the deceased’s provocative conduct (a subjective test); or
- the deceased’s conduct could have caused an ordinary person to lose self-control and to act in the way in which the accused did (an objective test).
If the prosecution can prove that the accused committed all the elements of murder but cannot refute the reasonable possibility that the accused acted because they were “provoked” and lost control, the accused will still be convicted of manslaughter (Masciantonio v R (1994).
Factors that can be used as evidence include:
- Mere words: words alone can amount to sufficiently provocative conduct, particularly when the words are considered “violently provocative”(Holmes v DPP  AC 588; Moffa v R (1977) 138 CLR 601 ).
- Historic conduct: previous provocative behaviour of the deceased is not reason alone for provocation but is relevant to the assessment of a “triggering event”. (Masciantonio v R (1994) 183 CLR 58; R v Osland  2 VR 636)
- Triggering event: the incident that caused the sudden and temporary loss of control. It may be a relatively minor but cannot be trivial.
- Loss of self-control/heat of passion: the provocative conduct of the deceased created in the accused intense anger, panic or fear that in turn caused the murderous behaviour. (Johnson V R (1976) 136 CLR 619)
- Delayed response: it must be shown that the act occurred because of loss of control not due to revenge or a ‘”slow-burning” desire for retribution. It does not stop an accused person (an abused partner) from using the defence because the accused’s reaction was delayed (R v Osland  2 VR 636; R v Thorton (No. 2)  1 WLR 1174).
- The response of the “ordinary person”: in the circumstance could an ordinary person have suddenly lost control to such an extent as to react the same way the accused did (Masciantonio v R (1994) 183 CLR 58)
- Proportionality: there must be a high degree of provocation.
The defence is not applicable unless all the elements of murder are established. The defence operates based on balancing the protection of life with compassion for human frailty. It was founded on a principle of ‘a sudden loss of control’.
Provocation and Sentencing
Provocation can be used as a consideration in sentencing. The accused’s moral culpability may be reduced if provocation was an element in the offending (e.g. if the accused was not the one who started the fight). This sentencing submission needs to be used with care, as the accused should not be seen to be ‘blaming’ the victim for the offending, especially if the accused is pleading guilty to the offence.
Nevertheless the submission has some validity when made by an experienced criminal solicitor, for more information contact our office today.