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EXTREME PROVOCATION

The complete defence of extreme provocation, operates to reduce a criminal charge of murder to manslaughter. Although provocation is often described as a “partial defence”, where the evidence raises the issue, the prosecution must prove beyond reasonable doubt that the killing was not in response to extreme provocation.

Section 23(2) of the Crimes Act 1900 (NSW) provides an act is done in response to extreme provocation if and only if:

(a) the accused acted in response to conduct of the deceased towards or affecting the accused; and

(b) the conduct of the deceased is a serious indictable offence (punishable by 5 years imprisonment or more); and

(c) the deceased’s conduct caused the accused to lose self-control; and

(d) the deceased’s conduct 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.

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Many partners in relationships charactertised by domestic violence are known to “snap” after many years of abuse and harm. In some reported cases, those partners have killed their abusers after years of being provoked. In those situations, the killing partner may have the partial defence of extreme provocation available to them, which would mitigate the offending conduct and reduce the charge of murder to manslaughter, if accepted.

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If you or someone you know has been charge with murder, it is important that they seek legal advice about partial defences they may raise to the charge. Should you wish to discuss the available options, please contact KF Lawyers for a free initial consultation.

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This information is intended to provide a general guide to the law. It should not be relied on as legal advice and it is recommended that you contact KF Lawyers to obtain tailored advice about your particular situation. The information stated is correct as at the date it has been published, and it may be amended from time to time. We disclaim all liability in respect to actions taken or not taken based on any or all the contents of this site to the fullest extent permitted by law. Do not act or refrain from acting upon this information without seeking professional legal counsel.

©2024 by KF LAWYERS AUSTRALIA

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