Provocation: a totally flawed defence that has no place in Australian criminal law irrespective of sentencing regime

Abstract

Why another paper on provocation when this partial defence to murder is already the subject of widespread criticism in the literature? The answer is because the defence is still available in five Australian jurisdictions. Furthermore, there is no consistency across jurisdictions that have reviewed the defence. Recently, Western Australia elected to abolish the defence but Queensland has decided to retain provocation. Internationally, New Zealand has removed the defence from the statute book but the United Kingdom, Canada and the United States continue to allow the defence. This paper identifies the heart of the problem as mandatory life sentencing for murder and seeks to argue that the partial defence of provocation is so flawed that it is the sentencing regime that needs to be adjusted especially as 'life' rarely actually means 'for the term of his natural life'. Nevertheless, given vested interests and the difficulty of introducing legal reform, the fallback position taken in this paper is that if the defence of provocation is to be retained then it is necessary to make the defence much more difficult to run by reversing the onus of proof and by narrowing the scope of the defence. It is contended that the Western Australian Government took the correct path by abolishing the partial defence of provocation and amending the mandatory life penalty for murder.