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You will only be able to raise the defence of provocation where you have been charged with murder.

Provocation is what is known as a ‘partial defence to murder.’ This means that, if raised successfully, you will be convicted of manslaughter rather than murder.

To raise the defence successfully, you must provide evidence in court to prove, on the balance of probabilities (that is, more than 50%), that:

1. The deceased’s conduct or actions caused you to ‘lose control’

The deceased’s conduct can include words that the deceased said to you, as well as any physical actions, such as unwanted sexual advances, physical abuse and so on.

It’s not necessary that the words, conduct or actions occurred directly before the offence; you may argue that you were provoked over a long period of time, for example, where you have suffered physical or emotional abuse at the hands of a spouse over many years.

However, you must be able to prove that the deceased’s conduct, words or actions alone caused you to lose control – you won’t be able to argue provocation where you committed the act due to hatred or revenge.

In determining whether the deceased’s conduct alone caused you to lose control, the court will look at things like the amount of provocation that you experienced, the things that were said or done and how they affected you personally (for example, the court will consider the deceased’s words or actions done in light of your personal attributes, such as your race and sex). The court will also consider the history and nature of your relationship with the deceased.

2. The deceased’s conduct or actions would have caused an ordinary, reasonable person to lose control

The court will ask whether the conduct and actions of the deceased person would have caused an ordinary and reasonable person to lose control in the way that you did.

In answering this question, the court will step into your shoes and consider the situation from the perspective of someone in your circumstances, that is, someone who is the same age as you, has the same level of maturity as you, and who has been ‘provoked’ in the same way as you.

So, for example, where you have previously suffered sexual abuse, the court will consider your reaction to a sexual advance in light of your history.

However, the court won’t take into account your intoxication at the time of the offence, as an ‘ordinary, reasonable person’ is someone who is not intoxicated.

If the defence of provocation is raised successfully, you will be convicted of manslaughter rather than murder, which carries lesser penalties.

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