Predominant aggressors and primary victims: The inadequacy of extreme provocation and loss of control

The Crimes Amendment (Provocation) Act 2014 replaced the provocation defence, with a new defence of extreme provocation in New South Wales. The change in the law represents a marked departure from the Select Committee’s report which proposed a new partial defence modelled closely on earlier recommendations of the Law Commission of England and Wales on the partial defences to murder. A number of the Law Commission’s recommendations were taken forward in England and Wales in 2009, albeit with last minute, controversial government additions. Provocation was thereby abolished and replaced with a new loss of control defence, designed to accommodate the circumstances of the abused defendant (the ‘primary victim’). Unfortunately, the decision to retain the loss of control requirement within both jurisdictions makes it easier for the abuser (the ‘principal aggressor’) to successfully claim these partial defences in femicide cases; and, in other cases, renders it potentially more difficult for the primary victim to rely on the defence when she utilises lethal force in response to a principal aggressor. This paper illustrates why this is the case, and advances proposals for optimal reform within these jurisdictions.