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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.

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.

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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