(1) A person who would otherwise be guilty of murder shall not be guilty of murder and shall be guilty of manslaughter if that person committed the act or omission causing death under provocation.
(2) For the purpose of subsection (1), a person commits an act or omission causing death under provocation if:
(a) the act or omission is the result of a loss of self-control on the part of the accused that was induced by:
of someone towards or affecting the accused, in circumstances where the accused kills:
(iii) the person who offered the provocation; or
(iv) the person believed on reasonable grounds to have offered the provocation; or
(v) a third party when attempting to kill or to injure the person who offered or was believed on reasonable grounds to have offered the provocation; and
(b) the accused, taking into account all of his or her characteristics and circumstances, should be excused for having so far lost self-control as to have formed an intent to kill or to inflict grievous bodily harm or to have acted with reckless indifference to human life as to warrant the reduction of murder to manslaughter.
(c) For the purpose of subsection 2(a), “conduct” includes grossly insulting words or gestures.
(3) For the purpose of determining whether an act or omission causing death was an act done or omitted under provocation as provided by subsection (2), there is no rule of law that provocation is negatived if:
(a) the conduct of the deceased or of any other person did not occur immediately before the act or omission causing death;
(b) the conduct of the deceased or of any other person did not occur in the presence of the accused;
(c) there was not a reasonable proportion between the act or omission causing death and the conduct of the deceased or of any other person that induced the act or omission;
(d) the act or omission causing death was not an act done or omitted suddenly;
(e) the act or omission causing death was an act done or omitted with any intent to take life or inflict grievous bodily harm; or
(f) the conduct of the deceased or of any other person was lawful.
(4) Where a person is intoxicated at the time of the act or omission causing death, and the intoxication is self-induced, loss of self-control caused by that intoxication or resulting from a mistaken belief occasioned by that intoxication is to be disregarded.
“Self-induced intoxication” in this subsection has the same meaning as it does in s 428A (of the Crimes Act 1900).
(5) For the purpose of subsection (1), a person does not commit an act or omission causing death under provocation if that person provoked the deceased or any other person with a premeditated intention to kill or to inflict grievous bodily harm or with foresight of the likelihood of killing any person in response to the expected retaliation of the victim or of any other person.
(6) Where, on the trial of a person for murder, there is any evidence that the act causing death was an act done or omitted under provocation as provided by subsection (2), the onus is on the prosecution to prove beyond reasonable doubt that the act or omission causing death was not an act done or omitted under provocation.
(7) This section does not exclude or limit any defence to a charge of murder, with the exception that no claim to the defence of provocation shall lie other than as provided by this section.
