Defence of Provocation

Prior to 23 November 2005, provocation was a partial defence to murder in Victoria. According to the common law, if the prosecution could prove that the accused had committed all the other elements of murder, but could not disprove the reasonable possibility that s/he had acted while “provoked”, s/he should be convicted of manslaughter rather than murder.

On 23 November 2005, provocation was abolished as a partial defence to murder for offences alleged to have been committed on or after that date. However, it remains available as a partial defence to offences alleged to have been committed prior to that date.

Where an offence is alleged to have been committed between two dates, one before and one on or after 23 November 2005, the offence is to be treated as if it was alleged to have been committed prior to that date. Provocation will therefore be available as a partial defence in such cases.

Elements of Provocation

There are three ways the prosecution can disprove provocation. They can prove that:

• The deceased did not act provocatively;
• The accused did not kill the deceased while deprived of self-control by his/her provocative conduct (the “subjective test”); or
• The deceased’s conduct was not capable of causing an ordinary person to lose self-control and to act in the way in which the accused did (the “objective test”).

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