Is provocation still a defence to murder?

by Sydney Criminal Lawyers

In the case Singh v R, a husband had brutally attacked his wife, slitting her throat with a box cutter. 

There were 22 cuts all over her body but Singh was convicted of manslaughter and sentenced to a non-parole period of six years with a balance term of two years.

The victim’s family and the community were outraged that Singh claimed provocation and got such a lenient sentence. 

Prior to the incident, Singh had been taunted by his wife, who said that she never loved him and was going to leave him.

The judge concluded that, with his friends and family back in India, his marriage going to break down and in dire financial circumstances, the defendant was vulnerable to the provocation that ended up leading him to kill his wife.

Under the common law, provocation could be used as a defence to those who committed crimes after being severely provoked. 

However this law allowed people who killed partners in jealous fits of rage, an escape. 

Men who were told by their wives or girlfriends that they were leaving, or found out that they were being cheated on often attacked their partners and claimed provocation.

Unlike self-defence which is a complete defence, provocation is only a partial defence. 

This means that while successful self-defence means acquittal, successful provocation can still result in a conviction for manslaughter.

And while manslaughter can still result in 25 years jail time, it is not punishable by life imprisonment like murder is. 

So while it certainly is not a get out of jail free card, manslaughter can still result in a much more lenient sentence than murder.

After the public outrage that occurred when the verdict of Singh v R was pronounced, NSW followed the footsteps of Victoria which abolished the defence in 2005 and restricted the use of provocation.

The law was amended earlier this year after changes were passed in parliament and took effect on 13 June.

Under section 23 of the NSW Crimes Act, extreme provocation can still be a partial defence to murder. 

But in order to fit into this category, it must be a response to extreme provocation and:
  • If the act was done in response to conduct of the deceased towards or affecting the accused; and
  • The act done by the deceased was a serious indictable offence
  • The act caused the accused to lose self-control
  • The act could have caused an ordinary person to lose self control
Provocation will be no defence if the conduct was a non-violent sexual offence or if the defendant purposely incited the deceased person to act in a particular way so that their conduct provided an excuse to use violence against them.
Any evidence of self-induced intoxication will not be taken into account.

The law is too recent to be able to evaluate its success but the question may be asked:

‘Was provocation an excuse which commends loss of self-control and a form of victim-blaming, or was it a legitimate defence?’ 

‘Will it deprive defendants of a legitimate form of defence by losing the distinction between planned murder and an act in the heat of the moment?’
The Singh case was heard in the Supreme Court of NSW in 2012 but it was not until this year, 2014, that the law was changed. 

In the intervening time, some raised concerns that the restriction of the defence will mean “battered” women who finally kill their partners after years of abuse are vulnerable to murder charges.

Others argued that the distinction should not be abolished between planned and calculated murder and manslaughter which was the result of a loss in self-control in the heat of the moment.

Those who formulated the new laws aimed to ensure that the defence of extreme provocation or self-defence are still available to those who are victims of domestic violence and abuse. 

To get in touch with Sydney Criminal Lawyers give us a call anytime on 02 9261 8881 – even after hours or on weekends, we are available 24 hours. Visit our website to find out more information about how we can help you.


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