What is the Legal Defence of Provocation?
Victorian courts may consider the victim’s provocative conduct when sentencing the accused for a violent crime (i.e. murder and non-fatal assaults). That is, provocation may be considered a mitigating factor (but not a defence) in sentencing for certain crimes.
Provocation used to be a partial defence to murder but was abolished in Victoria in 2005. It is not applicable as a legal defence to any criminal offence which is alleged to have been committed after 23 November 2005.
The partial defence of provocation may still be applied in cases of murder committed on or before 23 November 2005. The death of the victim must have also occurred on or before this date. Provocation is applicable in murder cases where the conduct of the deceased victim was provocative and caused the accused to lose self-control. However, the provocative conduct of the deceased must be of a standard that would cause an ordinary person to lose self-control and act in the way in which the accused did. If provocation is proven beyond a reasonable doubt in such cases, the accused will be convicted of manslaughter rather than murder.
Provocation and Sentencing in Victoria
After 23 November 2005, Victorian courts may only take provocation into consideration when sentencing the accused for violent crimes (murder and non-fatal assaults). Provocation is not specifically mentioned in the Sentencing Act 1991 (Vic) and is, therefore, a general sentencing factor to be considered alongside all the other relevant circumstances of the offence.
If the court is satisfied that provocation was an issue in relation to the offence, this may reduce the accused’s moral culpability. Subsequently, provocation may be seen as a mitigating factor in sentencing.
Raising the issue of provocation before the court always needs to be done carefully and strategically. If the defendant raises the issue without properly proving it, this may be seen as ‘victim-blaming’ and/or a failure on behalf of the accused to accept their wrongdoing. Subsequently, this could negatively impact the accused’s case.
Proving the Provocation Defence in Court (Murder)
In Victoria, the partial defence of provocation only applies in cases of murder committed on or before 23 November 2005. In such cases, the accused must raise the issue in evidence.
Once the defence is raised, the onus is on the prosecution to disprove one of the following elements:
- The deceased acted provocatively;
- The accused killed the deceased while deprived of self-control because of the deceased’s provocative conduct; or
- The deceased’s conduct could have caused an ordinary person to lose self-control and to act in a way in which the accused did.
If the prosecution can prove that the accused committed all the elements of murder but cannot disprove the defence of provocation, the accused must be convicted of manslaughter.