158Trial for murder – partial defence of provocation

158 Trial for murder – partial defence of provocation (1) A person (the defendant) who would, apart from this section, be guilty of murder must not be convicted of murder if the defence of provocation applies. (2) The defence of provocation applies if: (a) the conduct causing death was the result of the defendant's loss of self-control induced by conduct of the deceased towards or affecting the defendant; and (b) the conduct of the deceased was such as could have induced an ordinary person to have so far lost self-control as to have formed an intent to kill or cause serious harm to the deceased. (3) Grossly insulting words or gestures towards or affecting the defendant can be conduct of a kind that induces the defendant's loss of self-control. (4) A defence of provocation may arise regardless of whether the conduct of the deceased occurred immediately before the conduct causing death or at an earlier time. Criminal Code Act 1983 137 (5) However, conduct of the deceased consisting of a non-violent sexual advance or advances towards the defendant: (a) is not, by itself, a sufficient basis for a defence of provocation; but (b) may be taken into account together with other conduct of the deceased in deciding whether the defence has been established. (6) For deciding whether the conduct causing death occurred under provocation, there is no rule of law that provocation is negatived if: (a) there was not a reasonable proportion between the conduct causing death and the conduct of the deceased that induced the conduct causing death; or (b) the conduct causing death did not occur suddenly; or (c) the conduct causing death occurred with an intent to take life or cause serious harm. (7) The defendant bears an evidential burden in relation to the defence of provocation. Note for subsection (7) Under section 43BR(2), the prosecution bears a legal burden of disproving a matter in relation to which the defendant has discharged an evidential burden of proof. The legal burden of proof on the prosecution must be discharged beyond reasonable doubt – see section 43BS(1). (8) A defendant who would, apart from this section, be liable to be convicted of murder must be convicted of manslaughter instead.