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

Hemming, Andrew (2010) Provocation: a totally flawed defence that has no place in Australian criminal law irrespective of sentencing regime. University of Western Sydney Law Review (14). pp. 1-44. ISSN 1446-9294


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.

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Item Type: Article (Commonwealth Reporting Category C)
Refereed: Yes
Item Status: Live Archive
Additional Information: Author retains copyright.
Faculty / Department / School: Historic - Faculty of Business - School of Law
Date Deposited: 15 Jun 2011 07:10
Last Modified: 03 Jul 2013 00:41
Uncontrolled Keywords: provocation; sentencing; legal burden of proof
Fields of Research : 18 Law and Legal Studies > 1801 Law > 180110 Criminal Law and Procedure
17 Psychology and Cognitive Sciences > 1702 Cognitive Sciences > 170202 Decision Making
22 Philosophy and Religious Studies > 2203 Philosophy > 220311 Philosophical Psychology (incl. Moral Psychology and Philosophy of Action)
Socio-Economic Objective: C Society > 94 Law, Politics and Community Services > 9404 Justice and the Law > 940403 Criminal Justice

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