LLB180 Study Guide - Final Guide: Homicide, Partial Defence, Indictable Offence
Week 8 – Extreme Provocation
Defences and Burden of Proof:
Generally evidentiary burden is on D:
• Applied by the judge – whether leave issue to the jury or withdraw issue from
consideration by the jury
• Whether D has discharged the evidentiary burden – a question of law
Generally legal burden is on P:
• Once D discharges evidentiary burden, burden shifts to P to prove BRD absence of
defence raised by D
• Persuasive burden
• Applied by the jury to reach a verdict – a question of fact
Provocation to Extreme Provocation
• Partial defence to a charge of murder
- Success →manslaughter
• S 23 of the Crimes Act provides principles of provocation (CB 892)
• Crimes Amendment (Provocation) Act 2014
3-part structure
1. The provoking conduct of the victim;
2. The auseds loss of self-control resulting from the provoking conduct; and
3. Whether the provocation could have caused the ordinary person to lose self-control
23 Trial for Murder – Partial Defence of Extreme Provocation
(1) If, on the trial of a person for murder, it appears that the act causing death was in response to extreme
provocation and, but for this section and the provocation, the jury would have found the accused guilty of
murder, the jury is to acquit the accused of murder and find the accused guilty of manslaughter.
(2) An act is done in response to extreme provocation if and only if:
(a) the act of the accused that causes death was in response to conduct of the deceased towards or affecting
the accused, and
(b) the conduct of the deceased was a serious indictable offence, and
(c) the conduct of the deceased caused the accused to lose self-control, and
(d) the conduct of the deceased 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.
(3) Conduct of the deceased does not constitute extreme provocation if:
(a) the conduct was only a non-violent sexual advance to the accused, or
(b) the accused incited the conduct in order to provide an excuse to use violence against the deceased.
(4) Conduct of the deceased may constitute extreme provocation even if the conduct did not occur immediately
before the act causing death.
(5) For the purpose of determining whether an act causing death was in response to extreme provocation,
evidence of self-induced intoxication of the accused (within the meaning of Part11A) cannot be taken into
account
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Document Summary
Generally evidentiary burden is on d: applied by the judge whether leave issue to the jury or withdraw issue from consideration by the jury, whether d has discharged the evidentiary burden a question of law. Provocation to extreme provocation: partial defence to a charge of murder. Success manslaughter: s 23 of the crimes act provides principles of provocation (cb 892, crimes amendment (provocation) act 2014. 3-part structure: the provoking conduct of the victim, the a(cid:272)(cid:272)used(cid:859)s loss of self-control resulting from the provoking conduct; and, whether the provocation could have caused the ordinary person to lose self-control. V(cid:859)s (cid:272)o(cid:374)du(cid:272)t (cid:373)ust (cid:271)e a (cid:858)serious i(cid:374)di(cid:272)ta(cid:271)le offe(cid:374)(cid:272)e(cid:859) (cid:894)5 (cid:455)ears+(cid:895) s. Crimes act s 4(1) serious indictable offence. Ensure the jury must be satisfied there is a reasonable possibility that the conduct of the deceased was behaviour that the community and. Parliament have already determined is so serious it attracts a significant criminal penalty people should not generally contemplate committing homicide.
