8.10 – Provocation
8.10.3 - Checklist
[This checklist can be used in a Murder trial if provocation has been left to the jury. See the Bench Notes for guidance on when provocation should be left.]
In addition to proving all of the other elements of murder, the prosecution must also prove that the accused did not act under provocation.
This requires the prosecution to prove, beyond reasonable doubt, that when the accused killed the deceased, either:
1. The deceased did not act provocatively; or
2. The accused did not kill the deceased while deprived of self-control by the deceased’s provocative conduct; or
3. The deceased’s conduct would not have caused an ordinary person to lose self-control and act in the way the accused did.
Provocative Conduct
1 Has the prosecution proven that the deceased did not say or do anything that could have caused the accused to lose self control, and as a result to form an intention to kill or really seriously injury the deceased, and to act upon that intention?
Consider – Taking into account all of the circumstances, is there no reasonable possibility that the deceased said or did anything capable of provoking the accused in the way and to the degree described?
If Yes, then the accused is guilty of Murder
(as long as you are satisfied that the prosecution has also proven
all of the other elements of Murder beyond reasonable doubt)
If No, then go to Question 2
Killing While Deprived of Self Control
2. Has the prosecution proven that the accused did not kill the deceased while deprived of self-control by the deceased’s conduct?
Consider – What was the accused’s state of mind when s/he killed the deceased?
If Yes, then the accused is guilty of Murder
(as long as you are satisfied that the prosecution has also proven
all of the elements of that offence beyond reasonable doubt)
If No, then the accused go to Question 3
Conduct Would Have Caused an Ordinary Person to Lose Self-Control
3. Has the prosecution proven that the deceased’s conduct would not have caused an ordinary person to lose self-control and act in the way the accused did?
Consider – How grave was the provocation from the viewpoint of the accused? How might a person with ordinary powers of self control have reacted to provocation of this gravity?
If Yes, then the accused is guilty of Murder
(as long as you are satisfied that the prosecution has also proven
all of the elements of that offence beyond reasonable doubt)
If No, then the accused acted under provocation and is not guilty of
Murder, but is guilty of Manslaughter
(as long as you are satisfied that the prosecution has proven all the other elements of Murder beyond reasonable doubt)
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