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Provocation
Provocation: Services
The partial defence of provocation or ‘extreme provocation’, is available only where the accused is charged with murder, where the accused believed that their conduct was necessary, but not reasonable.
In McGhee v The Queen [1995] 183 CLR 82, Brennan J established:
“Provocation does not negate the existence of the specific intent or recklessness that is essential to establish the crime of murder but, because that intent or recklessness is a product of provocation, the crime, the elements of which are otherwise made out, should be reduced to manslaughter.”
The following elements must be established for provocation:
The accused’s act/omission was ‘in response to the conduct of the deceased towards or affecting’ the accused
The accused’s conduct was a serious indictable offence
The conduct of the deceased caused the accused to lose self-control
Conduct of the deceased could have caused an ordinary person to lose self-control to the extent of forming the intent to kill/inflict grievous bodily harm on the deceased.
It is vital to put your best foot forward to successfully raise a defence that can result in a reduced charge. Please contact us today to meet with an experienced criminal lawyer and discuss your best options.
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