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Does the law of Provocation require reformation?

An inquiry into the ‘law of provocation’ may be imperative following some recent cases of defendants circumventing the charge of murder through the defence of provocation, pertinent in cases where the crime involved the defendant killing their spouse or their spouse’s lover.​ In a recent case, (the case of Won), heard before the NSW Supreme Court, the defendant, (Won), had killed his wife’s lover, stabbing him 7 times, after Won found his wife in bed with him. The jury gave a verdict of Not Guilty to murder and convicted him for a lesser charge of Manslaughter.

Within the proceedings the jury was asked to deliberate whether the ‘act of finding a spouse in bed with someone else could have induced an ordinary person in the position of Won to have so far lost self-control as to have formed an intent to kill, or to inflict grievous bodily harm.’​ The case of Won follows an earlier case of similar crime, (the case of Singh), where the husband killed his wife with a box cutter. He too relied on the defence of provocation and was also given a lesser conviction of Manslaughter and sentenced to 6 years in jail. ​

Although Mr Terracini, (defence lawyer of Won), states that the law of provocation has been ‘seen as valid since the 19th century’, perhaps this archaic 19th century law is in dire need of reform and perhaps the victim’s advocate, Howard Brown, makes a valid point to be considered, that such ‘cases where provocation is argued should be left to judges, not juries.’

While juries add the human element within the court proceedings, (such as compassion, empathy, the advocates of the community and so forth), in respect to cases where a defence of provocation is determined, where such law is complex and requires greater understanding of the law, the judgment should perhaps be confined to that of the learned judge. ​

Neighbouring states, Victoria and Tasmania recognised the inadequacies of the law and abolished the defence of provocation in 2005 and 2003 respectively. Perhaps NSW should take heed and consider the recommendation made by the Victorian Law Reform Commission, when it decided to abolish the antiquated law of provocation, which found the law ''partly legitimates killings committed in anger''. ​

To date, in NSW, the law of provocation prevails, as evident in the outcome of these recent cases.​ ​


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