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News Article

Can provocation ever be a partial defence to murder?
Tuesday, August 14, 2012

Media blogs and tweets are buzzing with misguided comments about an article on page 3 of Monday’s Australian newspaper (13/8/12).  This article reported, initially inaccurately, the FamilyVoice Australia submission to a NSW inquiry on the partial defence of provocation.

The crime of murder under current NSW law is defined to include killing with the deliberate intention to do so, or with a reckless disregard for human life, or with a deliberate intention to cause grievous bodily harm.

However if the accused person can show that a reasonable person would consider that he or she was provoked by the victim, the partial defence of provocation may be available to reduce the charge from murder to manslaughter.

FamilyVoice Australia has argued that such a defence should not be available in cases where the provoked person had formed the intention to kill.  However we do support the availability of this partial defence in cases where there is genuine provocation and no intention to kill.

Current NSW law allows a partial defence of provocation in various situations, such as when a spouse deliberately and intentionally kills his or her partner after being provoked by the partner’s alleged infidelity.

FamilyVoice Australia does not believe the partial defence of provocation should be available in such cases – nor should it apply in cases where a man or a woman deliberately and intentionally kills another person who has made unwelcome or threatening sexual advances.


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