Provocation Defence

The defence of provocation was available in Victoria until November 2005 and, if used successfully, would ‘downgrade’ a murder charge to manslaughter.

It was based on a principle of ‘a sudden loss of control’ and was controversial as it provided a defence to the Accused on the basis of the actions of the Victim.

This defence is no longer available in Victoria.

It can however 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 some 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.