South Australia abolishes the defence of provocation.

On 1 December 2020, South Australian Parliament passed legislation to abolish the common law defence of provocation. But what is provocation, and what does its abolition mean for accused persons and criminal trials in South Australia?

What is ‘provocation’?

Prior to the amendments, under South Australian common law, an accused person who would otherwise have been convicted of murder could have been convicted of the lesser offence of manslaughter if the defence of provocation applied.

For an accused person to be convicted of murder, the Prosecution needs to prove beyond reasonable doubt that the accused person caused the death of the victim (physical element) and that they had the intention to kill or cause grievous bodily harm to the victim, or were recklessness as to killing or causing grievous bodily to the victim (fault element).

Provocation effectively means that the accused person was provoked by the victim’s conduct such that their mental state was affected and they could not be said to have had the fault element required to be convicted of the victim’s murder.

To rely on the defence of provocation, an accused person would need to produce evidence to support the conclusion that:

1. The victim engaged in (objectively) provocative conduct;
2. The accused person lost control as a result of the victim’s conduct;
3. The accused person (subjectively) formed the intent to kill or harm the victim while under the influence of the loss of control; and
4. The victim’s conduct was provocative enough that an ordinary person in the accused person’s shoes could have acted in a similar manner as the accused person did;

If such evidence was produced, there would then be an onus on the Prosecution to prove beyond reasonable doubt that the defence of provocation did not apply to the accused in the circumstances.

If the defence did apply, the accused person would be convicted of manslaughter rather than murder.

When could the defence of provocation be used?

Historically, the defence of provocation has been most commonly successfully raised in cases where the accused person is a victim of family violence or other abuse who has killed their abusive partner or family member, or where the accused person is “provoked” by a sexual advance from a person of the same gender, and reacts by killing them. It is the latter of these two examples which has given rise to the defence being referred to as the “gay panic defence”.

While the defence of provocation has not frequently been relied upon, there have been longstanding criticisms of it, particularly because it seems at odds with community expectations regarding self-control, and because it appears to place blame on victims for the violence carried out against them.

It has also been argued that there is no need for the defence of provocation because the defence of self-defence adequately protects accused people who have killed in the context of threats to their own safety, such as where there is family violence.

In light of these concerns, the legislation passed on 1 December 2020 abolished the common law defence of provocation. As a result, accused persons in South Australia will no longer be able to rely on it.

Self defence and family violence law

As well as abolishing the common law defence of provocation, the law passed on 1 December 2020 made changes to the law on self-defence in order to provide protection for victims of family violence.

Self-defence is available to accused persons who reasonably believe that their conduct, which would otherwise be an offence, is necessary in order to defend themselves or another person. The law requires that the conduct in self-defence be “reasonably proportionate” to the threat the accused person believes they are faced with (with limited exceptions).

The amended legislation recognises that, in relation to questions of reasonableness, necessity and proportionality, any evidence that the alleged offending occurred in circumstances of family violence must be taken into consideration.

This would include where an alleged offence is committed during the commission of family violence, or in response to family violence or threats of family violence. The Court must also take into account, where there is evidence of it, the history, nature and dynamics of the relationship between the accused person and the victim, and the effect of family violence on the accused person or their family member(s) – including psychologically, socially, culturally and economically. The Court must also have regard to any evidence presented by expert witnesses in relation to family violence and its effects generally.

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