Criminal Code Act 1899

When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation, and before there is time for the person’s passion to cool, the person is guilty of manslaughter only.

Subsection (1) does not apply if the sudden provocation is based on words alone, other than in circumstances of an exceptional character.

Also, subsection (1) does not apply, other than in circumstances of an exceptional character, if—

a domestic relationship exists between 2 persons; and

one person unlawfully kills the other person (the deceased); and

the sudden provocation is based on anything done by the deceased or anything the person believes the deceased has done—

to end the relationship; or

to change the nature of the relationship; or

to indicate in any way that the relationship may, should or will end, or that there may, should or will be a change to the nature of the relationship.

Further, subsection (1) does not apply, other than in circumstances of an exceptional character, if the sudden provocation is based on an unwanted sexual advance to the person.

For subsection (3)(a), despite the Domestic and Family Violence Protection Act 2012, section 18(6), a domestic relationship includes a relationship in which 2 persons date or dated each other on a number of occasions.

Subsection (3)(c)(i) applies even if the relationship has ended before the sudden provocation and killing happens.

For proof of circumstances of an exceptional character mentioned in subsection (2) or (3) regard may be had to any history of violence that is relevant in all the circumstances.

For proof of circumstances of an exceptional character mentioned in subsection (4), regard may be had to any history of violence, or of sexual conduct, between the person and the person who is unlawfully killed that is relevant in all the circumstances.

On a charge of murder, it is for the defence to prove that the person charged is, under this section, liable to be convicted of manslaughter only.

When 2 or more persons unlawfully kill another, the fact that 1 of the persons is, under this section, guilty of manslaughter only does not affect the question whether the unlawful killing amounted to murder in the case of the other person or persons.

In this section—unwanted sexual advance, to a person, means a sexual advance that—

is unwanted by the person; and

if the sexual advance involves touching the person—involves only minor touching.Examples of what may be minor touching depending on all the relevant circumstances—patting, pinching, grabbing or brushing against the person, even if the touching is an offence against section 352(1)(a) or another provision of this Code or another Act

sch 1 pt 5 ch 28 s 304 amd 1971 No. 41 s 7; 2011 No. 7 s 5; 2012 No. 5 s 217; 2017 No. 6 s 10